Vexatious Proceedings Act 2006

The Act turns on a small number of statutory concepts that define who is subject to restriction, what counts as restricted conduct, and the procedural steps for restriction and for relief from it.

Vexatious proceedings is a defined term with multiple limbs (section 2). The definition includes, without limiting language, proceedings that are an abuse of process; proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose; proceedings instituted or pursued without reasonable ground; and proceedings conducted to harass or annoy, cause delay or detriment, or achieve another wrongful purpose (section 2, definition of vexatious proceedings). That formulation separates the character of the proceedings from the frequency question that triggers an order under section 7(1).

Proceedings is defined broadly to include causes, matters, actions, suits, trials, complaints and inquiries within the jurisdiction of any court or tribunal, interlocutory proceedings taken in connection with a pending matter, and any calling into question of a decision by appeal, challenge, review or other means (section 3). Institute is defined by reference to the kinds of preparatory steps appropriate to civil, tribunal and criminal matters, and expressly includes steps to start appeals (section 4). These definitions give the Act a wide practical reach: interlocutory steps, appeals, and pre-institution steps can all fall within the statutory concept of instituting or conducting proceedings.

Acting in concert is relevant to the extension of orders to others (section 5). The Act excludes from the phrase a legal practitioner or representative who is acting on behalf of the proceedings. That exclusion limits the scope of the acting-in-concert concept so as not to capture ordinary legal representation.

Section 7 contains the trigger and lists the matters the Court may consider. The trigger is that the Court is satisfied a person has frequently instituted or conducted vexatious proceedings in Australia, or has acted in concert with someone already subject to a vexatious proceedings order or who satisfies the frequent-conduct limb (section 7(1)). In making that assessment the Court may have regard to proceedings and orders in any court or tribunal, including those predating the section (section 7(2)). The Court’s remedial powers are set out in section 7(3): stay all or part of any proceedings already instituted in the Territory, prohibit the person from instituting proceedings in the Territory, and make any other order the Court considers appropriate. Where the Court prohibits institution, the person may institute only with the Court’s leave under section 13, and others acting in concert are likewise restrained (section 7(4)).

Part 3 sets out the consequences and the leave mechanism. Proceedings commenced in contravention of a prohibition are permanently stayed (section 10(1)), and the Court in which such proceedings are instituted may make declaratory and other orders including costs (section 10(2)). The leave process requires an applicant to file an affidavit that lists prior applications for leave, lists all other proceedings instituted in Australia, and discloses all relevant facts whether supporting or adverse (section 11(3)). The Act also prescribes that the applicant must not serve a copy of the application or affidavit unless the Court orders that they do so (section 11(4)). The Court must dismiss non-complying applications or applications where the proceedings are vexatious (section 12), and may grant leave only if satisfied the proceedings are not vexatious (section 13(3)).

Procedural protections and variations: the Court must not make an order without hearing the person or giving them opportunity to be heard (section 7(5)). The Court may vary or set aside an order on application (section 8). The register obligation requires entry of the order in a publicly available register in the Darwin registry within seven days (section 9(2)), with removal on death (section 9(3)).

These concepts together create a statutory structure that (1) identifies vexatious behaviour on a factually intensive basis, (2) enables preventive and curative orders in the Territory, and (3) imposes a gatekeeping leave process with specified disclosure and hearing rules.

The Act directly affects several categories of persons and judicial actors, with varying duties and constraints.

Primary targets are persons whom the Supreme Court is satisfied have frequently instituted or conducted vexatious proceedings in Australia (section 7(1)(a)). The Act authorises the Court to make orders staying proceedings already instituted in the Territory or prohibiting future institution of proceedings in the Territory by that person (section 7(3)). The prohibition, when made, immediately imposes a statutory prohibition on instituting proceedings in the Territory without leave (section 7(4)(a)). The effect is jurisdictional rather than criminal; it restricts access to courts and tribunals within the Territory for the person subject to the order.

The Act also extends to persons acting in concert with someone who is subject to a vexatious proceedings order, or who falls within the frequent-conduct limb (section 7(1)(b) and section 7(4)(b)). The statutory definition of acting in concert excludes a legal practitioner or representative acting for the proceedings (section 5). Practically, this means the prohibition can reach collaborators and repeat-follower litigants, but not the lawyers who represent them in the ordinary course.

Persons who may make an application for a vexatious proceedings order appear in section 7(6). They include the Attorney-General and Solicitor-General, a Registrar of the Court, anyone against whom the person has instituted or conducted vexatious proceedings, and anyone who, in the Court’s opinion, has a sufficient interest in the matter (section 7(6)(a)-(e)). Applications by persons in the latter two categories require leave of the Court (section 7(7)). That gatekeeping reduces unmeritorious applications by third parties, while allowing public law actors and court officers to act without leave.

Persons who are subject to a prohibition, and persons acting in concert with a subject person, are affected by the leave regime in Part 3. Section 11 applies to an applicant who is subject to a prohibition under section 7(3)(a)(ii) or acting in concert with such a person (section 11(1)). The applicant must follow the affidavit and disclosure requirements in section 11(3) and may not serve a copy of the leave application unless an order under section 13(1)(a) is made (section 11(4)). The Court must not make a vexatious proceedings order without hearing the person or giving them an opportunity to be heard (section 7(5)), and may vary or set aside an order on application (section 8). The Court may also act of its own motion to make a vexatious proceedings order (section 7(6)) and to make orders declaring proceedings instituted in contravention and ordering costs (section 10(3)).

Registrars and Court staff are affected by section 9, which requires a Registrar of the Court to arrange for a copy of the order to be entered in a publicly available register in the Darwin registry within seven days of the order being made, and to remove the copy if the subject person dies (section 9(2)-(3)). The public register creates a record that other parties and courts may consult.

Other courts and tribunals are indirectly affected because the Act’s definition of proceedings includes causes and interlocutory steps taken in any court or tribunal of the Commonwealth, a State or a Territory (section 3), and the Court may have regard to proceedings and orders in any court or tribunal when deciding whether to make an order (section 7(2)). The Act thereby allows the Supreme Court to consider an individual’s litigation behaviour nationally when making a Territory-based restriction.

Finally, persons listed as "relevant persons" for the leave process include the proposed defendant, the Attorney-General, the Solicitor-General, and any person who previously made an application with leave and whom the Court considers should be served (section 13(5)). Those persons have a statutory right to be given notice and an opportunity to be heard at the leave hearing (section 13(1)(a)-(b)).

The Act prescribes duties for the Court, registrars and applicants, and recognises procedural rights for persons facing vexatious proceedings orders.

Duties of the Court

• The Court has the statutory power to make vexatious proceedings orders when satisfied on the statutory criteria (section 7(1)-(3)). It must not make such an order without hearing the person or giving them an opportunity to be heard (section 7(5)). This is a mandatory procedural protection.
• The Court may vary or set aside an order on application by the person subject to the order or those specified in section 7(6), subject to leave where required (section 8).
• When considering whether to prohibit institution of proceedings, the Court may have regard to proceedings and orders across Australia, including those preceding the Act (section 7(2)). The Court may also receive as evidence records or affidavits from any proceedings involving the applicant at the leave hearing (section 13(2)).

Duties of registrars

• A Registrar of the Court must arrange for a copy of a vexatious proceedings order, or any order varying or setting aside it, to be entered in a publicly available register kept for the Act in the registry of the Court at Darwin within seven days of the order being made (section 9(1)-(2)). The Registrar must remove the copy from the register if the person subject to the order dies (section 9(3)).

Duties and obligations of persons subject to orders and leave applicants

• A person subject to a prohibition must not institute proceedings in the Territory without the Court's leave under section 13 (section 7(4)(a)). No one else acting in concert with the person must institute proceedings in the Territory without leave (section 7(4)(b)).
• An applicant for leave must file an affidavit that lists all occasions on which they have applied for leave under section 11, lists all other proceedings they have instituted in Australia, including those before the Act commenced, and discloses all relevant facts whether supporting or adverse to the application (section 11(3)). This is a demanding disclosure and record-keeping duty.
• The applicant must not serve a copy of the application or affidavit on any person unless the Court orders that they serve it and the copy is served under that order (section 11(4)). This limits pre-hearing publicity and potential multiplicity of separate processes.
• The Court must dismiss a leave application if the affidavit does not substantially comply with section 11(3) or if the proceedings are vexatious (section 12(1)). The application may be dismissed even if the applicant does not appear at the hearing (section 12(2)). There is no right to appeal from a decision disposing of the leave application (section 11(6)). Those provisions create finality and strict compliance expectations.

Rights of relevant persons and others

• At the leave hearing the Court must order that the applicant serve each relevant person with a copy of the application and affidavit and a notice of entitlement to be heard, and give the applicant and each relevant person an opportunity to be heard (section 13(1)(a)-(b)). The definition of relevant person includes the person proposed to be sued, the Attorney-General, the Solicitor-General, and certain persons who previously applied with leave and whom the Court considers should be served (section 13(5)). Those persons therefore have a right to participate in the leave determination.
• If leave is granted, the Court may impose conditions it considers appropriate (section 13(4)). That introduces a right-relative framework: leave is discretionary and subject to judicially imposed conditions.

Enforcement consequences

• Proceedings instituted contrary to a prohibition are permanently stayed (section 10(1)), and the court in which such proceedings are instituted may make declaratory and other orders, including costs (section 10(2)). The Court or the court or tribunal may make such orders on its own initiative or on application by persons listed in section 7(6) (section 10(3)). These provisions create a risk of immediate termination of proceedings and potential adverse costs consequences for non-compliance.

The Act also preserves the courts’ inherent powers to restrict vexatious proceedings, so the statutory duties and rights sit alongside pre-existing common law and judicial practices (section 6). Taken together, the Act imposes strict disclosure duties on applicants for leave, creates procedural rights for persons who may be affected by proposed proceedings, affords the Court a broad discretion to restrain and condition future litigation, and provides registries a duty to maintain public records of such orders.

The Act does not create criminal offences or impose monetary fines as standalone statutory penalties, but it establishes civil remedies and procedural consequences designed to prevent and respond to vexatious litigation.

Primary enforcement mechanism

• A person who institutes proceedings in contravention of a prohibition imposed under section 7(3)(a)(ii) faces a statutory permanent stay of those proceedings under section 10(1). The effect is that the proceedings are terminated by operation of the Act, subject to any prior leave being obtained. The stay is described as permanent, not interlocutory.

Declaratory and consequential orders

• Section 10(2) authorises the Court, or the court or tribunal in which contravening proceedings are instituted, to make an order declaring that the proceedings are of the type to which section 10(1) applies, and to make another order for the proceedings it considers appropriate, including an order for costs. The Act therefore contemplates both declaratory relief and conventional civil remedies such as costs orders for contravention. The power to award costs creates an economic sanction for non-compliance and an enforcement lever for respondents.

Initiation and standing

• Enforcement action may be initiated either by application of persons specified in section 7(6) or by the Court or tribunal acting of its own initiative (section 10(3)). Persons specified include the Attorney-General, the Solicitor-General, a Registrar, persons against whom the vexatious proceedings have been instituted, and persons with sufficient interest (section 7(6)). Applications by persons in the latter two categories require leave (sections 7(7) and 10(4)). This standing regime balances access to enforcement by public law actors and affected private parties, while requiring judicial gatekeeping for third-party applicants.

Procedural enforcement through leave regime

• The leave mechanism in Part 3 is itself an enforcement and gatekeeping tool. If the Court has prohibited institution without leave, the only lawful route to commence proceedings is to obtain leave under section 13. Section 11(3) imposes a comprehensive affidavit requirement, and the Court must dismiss an application that does not substantially comply or if the proceedings themselves are vexatious (section 12). There is no appeal from the Court’s disposal of the leave application (section 11(6)). These provisions function to enforce the prohibition by making relief discretionary, conditional and procedurally costly to obtain.

Registry enforcement and public notice

• The Registrar’s duty to enter a copy of the order in a publicly available register within seven days creates a public enforcement signal, enabling courts, tribunals and potential respondents to discover that a person is subject to a restriction (section 9(2)). Removal on death is required (section 9(3)). The register is an administrative enforcement tool rather than a penalty, but it increases the prospect that contravention will be noticed and addressed.

No criminal sanctions and preservation of judicial powers

• The Act does not create criminal sanctions. Enforcement is civil, relying on stays, declaratory relief and costs orders. The Act expressly preserves inherent jurisdiction and other powers of courts or tribunals to restrict vexatious proceedings (section 6), so statutory enforcement operates alongside inherent judicial powers rather than displacing them.

Costs and litigation risk

• Costs orders under section 10(2)(b) mean a person who breaches a prohibition risks being ordered to pay the other party’s legal costs. The leave application process itself may attract costs. The combination of permanent stays and costs exposure is the Act’s principal enforcement architecture.

The Act is framed to operate alongside, and not in substitution of, pre-existing judicial powers, and its definitions reach proceedings across Commonwealth, State and Territory jurisdictions, which produces practical interface issues.

Non-derogation of inherent jurisdiction

• Section 6 is explicit that the Act does not affect any inherent jurisdiction or other powers of a court or tribunal to restrict vexatious proceedings. That preserves common law and equitable remedies developed by courts, including in other jurisdictions. Practically, courts retain independent authority to limit vexatious conduct even where the statutory route is not invoked. The Act therefore supplements, rather than replaces, judicial power.

Cross-jurisdictional scope of factual inquiry

• Section 3 defines proceedings to include those within the jurisdiction of any court or tribunal of the Commonwealth or of a State or Territory. Section 7(2) instructs that the Court may have regard to proceedings and orders made by any court or tribunal, including those that predate the section. The Court, when deciding whether a person has frequently instituted or conducted vexatious proceedings, can therefore rely on a person’s litigation conduct outside the Territory. This creates an evidential interaction with other jurisdictions: orders and proceedings from other courts are admissible and may be determinative of whether a restriction is warranted in the Territory.

Practical interface with registry practices and information-sharing

• Section 9 requires the registrar to enter the order in a publicly available register in the Darwin registry within seven days. There is no express statutory duty to notify other courts or tribunals. Nonetheless, section 7(2) contemplates inter-jurisdictional recognition of prior orders. The Act therefore creates a Territory-focused public record that other courts may consult, but it does not mandate a national register or automatic notice to other jurisdictions.

Effect on civil versus criminal processes

• The definition of institute in section 4 explicitly covers civil, tribunal and criminal proceedings, including preparatory steps such as making a complaint, laying an information or obtaining an arrest warrant for criminal proceedings, and steps to start appeals. That means the statutory prohibition can, in theory, reach criminal process institution. The Act’s remedies are civil stays and prohibitions. There is no implication that the Act alters substantive criminal law punishments, but it may restrict the ability of a person subject to a prohibition to commence criminal proceedings within the Territory without leave.

Interaction with legal representation and professional conduct

• Section 5 excludes a legal practitioner or representative acting for proceedings from the acting-in-concert reference. That preserves lawyers’ ability to represent clients without being caught by the acting-in-concert prohibition. The Act does not address lawyer conduct, regulatory obligations or professional discipline. However, because the Act allows the Court to take account of proceedings instituted with representation, lawyers acting for repeatedly litigating clients may find themselves participating in leave hearings or in proceedings to strike out contravening filings.

Procedural precedence and evidentiary interaction

• Section 13(2) permits the Court to receive as evidence any record of evidence given or affidavit filed in any proceedings in which the applicant has been involved. That provision formally authorises use of prior court materials from other matters, subject to usual evidentiary rules. The Act therefore anticipates and facilitates reliance on extracurial documents and prior adjudicative findings.

Limits on appeal and finality

• Section 11(6) removes the right to appeal from a decision disposing of a leave application. That interacts with appellate statutory regimes by curtailing an appellate route in relation to leave under this Act, and anchors finality in the trial court’s discretion for that specific procedural step.

In sum, the Act is designed to integrate with judicial inherent powers, to draw upon prior proceedings across jurisdictions as part of the fact-finding process, and to create a Territory-based public register and leave mechanism rather than a national licence or cross-jurisdictional prohibition mechanism.

The source contains a concise amendment history in the endnotes, and identifies formal amendment activity.

Enactment and commencement

• The Act was enacted as the Vexatious Proceedings Act 2006 (Act No. 29, 2006), received assent on 19 September 2006 and commenced on that date (endnotes, list of legislation). The Justice Legislation Amendment Act 2007 (Act No. 5, 2007) is recorded as an amending instrument.

Listed amendments

• The endnotes identify that section 9 was amended by the Justice Legislation Amendment Act 2007, specifically by No. 5, 2007, section 23 (endnotes, list of amendments). The text of section 9 in the reprint reflects that amendment. The endnotes also record that assent to the Justice Legislation Amendment Act 2007 occurred on 24 April 2007 and that, with limited exceptions noted in the endnotes, commencement of that amending Act occurred 1 May 2007 (endnotes, list of legislation).

Technical and formal amendments

• The endnotes indicate that general amendments of a formal nature were made by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to section 1 (endnotes, general amendments). The endnote classifies such amendments as formal, and notes they are not itemised elsewhere in the reprint.

Extent of recorded amendments in the provided text

• The textual endnotes provide precise references for the amendments identified: s 9 was amended by No. 5, 2007, s 23, and s 1 was subject to formal amendments by Act No. 22, 2018 (endnotes, items 2 and 3). No other substantive amendments are recorded in the supplied endnotes.

Effect of amendments on operative provisions

• The amendment to section 9 is notable because section 9 governs notification and the register of orders. Any change to section 9 affects the administrative implementation of the Act, particularly the duty of the Registrar to enter orders into the register and to remove entries upon the death of the subject person. The reprint shows the operative text for section 9 as amended.

Limitations of the source record

• The supplied materials do not provide the full text of the 2007 amending Act, nor do they provide the prior text of section 9 for comparison. The endnotes therefore tell us which provisions were amended and by which instrument, but they do not detail the precise pre-amendment wording or the policy rationale in the amending statutes. The provided reprint reflects the Act "as in force at 24 April 2007" and includes the amendment references in the endnotes.

Practical implication for practitioners

• Where compliance or historical analysis is required, practitioners should consult the Act as reprinted (or a current consolidated version) and, if necessary, the amending instruments cited in the endnotes for any legislative history context. The endnotes supply the statutory citation and assent and commencement dates for the principal instruments that altered the Act.

The supplied text contains no case law or reported litigation history applying, interpreting or testing this Act. The reprint itself does not include judicial decisions, headnotes or citations to cases. The legislation, however, creates rights and processes that will necessarily be the subject of future judicial determinations in the Supreme Court and potentially in appellate courts, but no such decisions are recorded in the provided materials.

What the source does state about judicial power

• The Act expressly preserves the inherent jurisdiction and other powers of a court or tribunal to restrict vexatious proceedings (section 6). That preserves the body of pre-existing judicial authority and practice on vexatious litigation. Because that authority remains available, litigation about the Act will likely interface with established case law on abuse of process, costs sanctions and restraining orders, but the reprint does not record any particular litigation applying the new statutory provisions.

Implications of absence of litigation history in the source

• The lack of recorded litigation in the provided text means there are no statutoryly cited precedents, no recorded judicial constructions of the Act’s definitions or procedures, and no reported interpretations of contentious phrases such as "frequently instituted" or "acting in concert" within the statutory context. Any practitioner seeking judicial guidance on interpretation will therefore need to analyse the text’s language and relevant pre-existing case law on vexatious litigants and abuse of process, while recognising that the Act’s procedural prescriptions , notably the leave process, affidavit requirements and register , will impose additional statutory steps not present at common law.

Potential areas in which litigation could arise

• Judicial determinations will likely be required on the meaning of "frequently instituted or conducted", the evidentiary threshold for proving that conduct, the scope of "acting in concert" outside the exclusion for legal practitioners, the procedural limits on service of leave applications under section 11(4), the nature and scope of any conditions that may be imposed when leave is granted under section 13(4), and the interaction between the statutory register and judicial notice or recognition by other courts. The source does not provide any of these judicial answers.

Practical note for litigators

• In the absence of recorded litigation applying the Act in the supplied materials, practitioners should prepare to rely on the statute’s text, the general principles applicable to vexatious litigants at common law, and to record and advance any extrajurisdictional proceedings or prior orders that the Court may consider under section 7(2) and section 13(2) when constructing a factual case for or against making a statutory order.

The Act contains several procedural and substantive features that can catch practitioners, litigants and court officers by surprise if not attended to carefully. Below are the principal practical pitfalls, each grounded in the statute.

Broad reach of proceedings and institute

• Proceedings is defined broadly to include interlocutory steps and any calling into question of a decision by appeal, challenge or review (section 3). Institute in section 4 includes preparatory steps necessary to start civil, tribunal or criminal proceedings and steps to start appeals. The consequence is that many pre-action actions and appeal initiations are captured by the Act. Practitioners should not assume the prohibition affects only final-docketed lawsuits; it can reach pre-filing steps and appellate filings.

Acting in concert exclusion for legal practitioners

• Section 5 provides that acting in concert does not include a legal practitioner or representative acting for the proceedings. That exclusion protects lawyers who represent clients. However, it can produce strategic effects: a person subject to a prohibition may be able to pursue a claim through a lawyer retained for that purpose, while non-lawyer co-operators could be caught by the acting-in-concert restraint. This creates potential lines of inquiry about when a third party is effectively instigating litigation versus when a lawyer is properly representing client instructions.

Mandatory and strict affidavit obligations for leave applicants

• Section 11(3) requires an applicant for leave to file an affidavit that lists all prior occasions on which the applicant has applied for leave, lists all other proceedings the applicant has instituted in Australia (including those before the Act commenced), and discloses all relevant facts known to the applicant whether supporting or adverse. Non-compliance is consequential: the Court must dismiss the application if the affidavit does not substantially comply (section 12(1)(a)). This is a substantive disclosure duty; omissions or incomplete lists risk dismissal irrespective of the merits.

Restriction on serving leave applications

• An applicant must not serve a copy of the application or affidavit on a person unless the Court makes an order under section 13(1)(a) and the copy is served under that order (section 11(4)). This is counterintuitive; applicants cannot simply file and serve leave applications on their intended defendants. The Court must first order service at the leave stage. Failure to observe that rule can amount to procedural default and dismissal (section 12).

No appeal from leave disposition

• Section 11(6) removes the right to appeal from a decision disposing of the leave application under Part 3. The absence of an appeal creates finality at the leave-stage and can narrow procedural remedies for unsuccessful applicants.

Permanent stay where proceedings contravene prohibition

• Proceedings instituted in contravention of section 7(4) are permanently stayed (section 10(1)). The legislature chose permanence rather than an interlocutory stay. For parties defending against a prohibited filing, the remedy is immediate termination rather than a temporary hold pending further process.

Costs exposure and declaratory orders

• The Court or the court or tribunal in which contravening proceedings are instituted may make an order for costs (section 10(2)(b)). Non-compliance with the prohibition therefore carries not only termination risk but also adverse costs consequences.

Register limited to Darwin registry and removal on death

• Section 9 requires entry of a copy of the order in a publicly available register kept in the registry of the Court at Darwin within seven days (section 9(2)). The register is territorial and localised. There is no statutory requirement in the Act to notify other courts or to maintain a national register. The register must be cleared if the subject person dies (section 9(3)). Practically, parties should check the Darwin registry to identify whether a person is subject to a statutory order.

Standing and leave for applicants to apply for orders

• Certain applicants under section 7(6)(d) and (e) (persons against whom vexatious proceedings have been instituted and persons with a sufficient interest) may apply for a vexatious proceedings order, but only with the leave of the Court (section 7(7)). Similarly, applications by such persons under section 10(3) or section 8 may require leave. Practitioners should not assume automatic standing in these categories.

Court-initiated orders and broad discretion

• The Court may make an order on its own initiative (sections 7(6) and 10(3)). This creates the risk that a court may act ex proprio motu to restrict a litigant’s access to courts, so representation and factual record-keeping are critical in all dealings with the Court.

Wide statutory definition of vexatious proceedings

• The statutory definition is multi-limbed and includes subjective elements such as intent to harass or wrongfulness, and objective elements such as absence of reasonable ground (section 2). That breadth means factual determinations will be context-specific and may be contested vigorously.

Potential difficulty proving extraterritorial conduct

• Because the Court may consider conduct across Australia (section 7(2)), a prohibition may be based on proceedings and orders from other jurisdictions. Gathering admissible records and demonstrating the relevance of extraterritorial litigation history will present evidentiary and practical hurdles.

In combination, these features impose strict procedural compliance obligations, create significant enforcement consequences for contravention and shape the strategic calculus for litigants and practitioners dealing with repeat or abusive litigators.

This section sets out practical, statute-grounded steps for the principal actors to comply with the Act: persons subject to a prohibitory order, applicants seeking leave, those seeking to obtain a vexatious proceedings order against another, and court registry staff.

For persons subject to a vexatious proceedings order (or acting in concert)

• Do not institute proceedings in the Territory without first obtaining the Court’s leave under section 13. Instituting proceedings in contravention of a prohibition results in a permanent stay under section 10(1) and may attract costs under section 10(2)(b).
• If you propose to apply for leave under section 11, prepare the affidavit required by section 11(3) carefully. The affidavit must:
  • list all occasions on which you have applied for leave under this section (section 11(3)(a));
  • list all other proceedings you have instituted in Australia, including those commenced before the Act (section 11(3)(b)); and
  • disclose all relevant facts about the application, whether supporting or adverse, that you know (section 11(3)(c)). Failure to substantially comply is a basis for mandatory dismissal under section 12(1)(a).
• Do not serve a copy of the leave application or affidavit on any person unless the Court orders service under section 13(1)(a) and the copy is served under that order (section 11(4)). Service without the Court’s order risks dismissal under section 12.
• Attend the leave hearing. Although section 12(2) permits dismissal if the applicant does not appear, practical ability to address objections at the hearing will assist the Court in deciding whether the proceedings are vexatious and whether to impose conditions under section 13(4).
• Be prepared to have prior court records and affidavits admitted as evidence under section 13(2). Gather and file reliable copies of any proceedings in which you have been involved.

For applicants seeking a vexatious proceedings order against another person

• If you are the Attorney-General, Solicitor-General or a Registrar of the Court, you may apply directly under section 7(6)(a)-(c). If you are a person against whom the alleged vexatious conduct has been directed, or you assert a sufficient interest, you must obtain the Court’s leave to apply (section 7(7)). Make a clear application explaining the factual basis for the Court to be satisfied of frequent institution or conduct of vexatious proceedings (section 7(1)).
• Provide documentary evidence of the respondent’s history of proceedings, including proceedings and orders in other jurisdictions, as the Court may regard materials from any court or tribunal (section 7(2)). Where available, rely on prior orders, judgments and affidavits to map the pattern of conduct the Court must assess.
• If seeking a stay of existing proceedings under section 7(3)(a)(i), seek interim relief from the appropriate court while pursuing the statutory determination, but be mindful that the Act provides a permanent stay only where proceedings are instituted in contravention of section 7(4) (section 10).

For registrars and court staff

• Upon making a vexatious proceedings order or varying or setting aside one, arrange for a copy of the order to be entered in the publicly available register kept for the Act in the registry of the Court at Darwin within seven days (section 9(2)). Maintain records so that removal can occur promptly if the Registrar becomes aware that the subject person has died (section 9(3)).
• Ensure the register is accessible to the public and other litigants in a reliable way, so that potential respondents and courts can discover the existence of prohibitions.

For legal practitioners representing parties affected by the Act

• Note that acting in concert does not include a legal practitioner or representative acting for proceedings (section 5). Lawyers may represent clients involved in leave applications or in opposing vexatious proceedings orders, but must be alert to the substantive and procedural disclosure requirements.
• Counsel should prepare for the Court to receive prior affidavits and evidentiary records from other proceedings under section 13(2). Assemble materials in a manner suitable for formal evidentiary use.
• If representing an applicant for leave, ensure the affidavit under section 11(3) is comprehensive and accurate. Verify prior proceedings, prior leave applications, and disclosable adverse facts, because the Court must dismiss for substantial non-compliance (section 12).

For parties defending against a prohibited person’s attempt to bring proceedings

• Check the Darwin registry promptly to see if the claimant is subject to a vexatious proceedings order (section 9(2)). If a filing appears to contravene section 7(4), apply promptly under section 10 to have the proceedings declared subject to the permanent stay and to seek costs under section 10(2).
• If served with a leave application under section 13(1)(a) following a Court order for service, exercise the right to be heard at the leave hearing (section 13(1)(b)). Present available evidence that the proposed proceedings are vexatious if that is the defence.

Practical checklist for an applicant for leave (statutory minimums)

1. Prepare the affidavit required by section 11(3), covering:
   • list of all prior leave applications under the Act (date, court, outcome);
   • list of all other proceedings instituted in Australia (case names, courts, file numbers, outcomes);
   • disclosure of all relevant facts known to the applicant, favourable and adverse.
2. File the application and affidavit in the Supreme Court in accordance with local rules.
3. Do not serve the application on any person unless the Court orders service under section 13(1)(a).
4. If the Court orders service, serve each relevant person identified in section 13(5) as ordered, and prepare to give them notice and an opportunity to be heard at the hearing (section 13(1)(a)-(b)).
5. Be ready to have prior records admitted under section 13(2).
6. If leave is granted, review any conditions the Court imposes under section 13(4) and ensure compliance to avoid future contravention.

Following these statute-grounded steps will reduce the risk of mandatory dismissal, permanent stay, and adverse costs consequences under the Act.