Vexatious Proceedings Act 2008

The legislation primarily targets natural persons (and, by extension, those acting in concert with them) who have "frequently" instituted or conducted vexatious proceedings in any Australian court or tribunal. The term "frequently" is not numerically defined and is left to judicial assessment having regard to the volume, nature and outcome of proceedings: s 8(1)(a). Section 8(1)(b) extends the net to those acting in concert with a person already subject to an order or otherwise caught by paragraph (a). Section 3(2) expressly excludes Australian legal practitioners or representatives acting in that professional capacity from the "acting in concert" concept.

Applicants for vexatious proceedings orders are broadly defined in s 8(4) to include the Attorney General, the Solicitor General, the appropriate registrar of the relevant authorised court, any person against or in relation to whom vexatious proceedings have been instituted or conducted, and any person with sufficient interest (with the latter category requiring leave: s 8(5)). Judicial officers, members or registrars may also recommend that the Attorney General bring an application: s 8(6).

Once an order is made, its effects extend to any person who seeks to institute proceedings in concert with the restrained litigant: s 13(1)(b). The leave procedure in ss 14–16 therefore binds both the primary subject of the order and any such confederate.

The Act also affects a range of public and court officers. The Prothonotary (Supreme Court), Registrar (Land and Environment Court) or Industrial Registrar must arrange for publication in the Gazette, registration on a public Supreme Court register, and may arrange further publicity: s 11. These registrars are also "relevant persons" entitled to be heard on leave applications if they were the original applicant: s 16(5)(d). The Attorney General and Solicitor General are given standing to apply for orders, to be heard on leave applications, and to receive notice.

Courts and tribunals outside the three authorised courts are indirectly affected because evidence of their decisions and findings may be relied upon when determining whether to make an order: s 8(2)(c), which overrides the usual inadmissibility rule in s 91 of the Evidence Act 1995. The broad definition of "Australian court or tribunal" in s 3(1) brings every federal, state and territory body within the evidentiary net.

Finally, the legislation touches defendants or respondents in proceedings brought by vexatious litigants. They are entitled to apply for orders, to be served with leave applications, and to seek dismissal or costs orders when proceedings are instituted in breach of an existing order: ss 8(4)(d), 13(4)–(6) and 16(5)(a).

The Act creates few positive duties but imposes significant restrictions that function as negative duties. A person subject to a vexatious proceedings order must refrain from instituting any prohibited proceeding without first obtaining leave under s 16: s 13(1). The same duty applies to anyone acting in concert with them. Failure to observe this duty triggers automatic stay and deemed dismissal after 28 days: s 13(2)–(3).

An applicant for leave carries a heavy evidentiary burden. Section 14(3) imposes a mandatory duty to file an affidavit that (a) lists every prior leave application made under the Act or under the repealed provisions, (b) lists every other proceeding instituted in Australia (including pre-2008), and (c) makes full disclosure of all material facts, whether favourable or adverse. Non-compliance requires dismissal: s 15(1)(a). The applicant must not serve the application or affidavit unless and until the court so orders under s 16(1)(a) and in accordance with that order: s 14(4).

Courts exercising powers under the Act have both rights and duties. An authorised court must not make a vexatious proceedings order without first hearing the person or affording them an opportunity to be heard: s 8(3). The same natural justice obligation applies to reinstatement applications: s 10(5). When dealing with a leave application, the court must order service on all relevant persons and give them an opportunity to be heard before granting leave: s 16(1). Conversely, the court is obliged to dismiss a leave application if any of the three grounds in s 15(1) are made out and may do so without an oral hearing or in the applicant's absence: s 15(2).

Persons against whom vexatious proceedings have been brought enjoy the right to apply for an order (s 8(4)(d)), to seek variation or setting aside (s 9(2)(a)), and to be heard on leave applications. They may also apply for declaratory and dismissal orders when proceedings are filed in breach of an order: s 13(5).

The subject of an order retains the right to apply to vary or set it aside (s 9(2)(a)) or, after five years, to resist reinstatement (s 10). However, s 9(4) and s 14(4A) empower the court to decline to consider repetitive applications that are not materially different from previously dismissed applications. The Act expressly preserves all inherent jurisdiction and powers that courts and tribunals possess independently of the statute: s 7. It also preserves the right to make suppression or non-publication orders in proceedings under the Act where necessary to protect welfare or for any other reason: s 17.

The Act does not create criminal offences or monetary penalties. Enforcement is achieved through civil procedural mechanisms. Proceedings instituted in breach of a prohibition are automatically stayed and, unless dismissed earlier, are taken to be dismissed by operation of law after 28 days: s 13(2)–(3). The court or tribunal in which the proceedings were filed (or an authorised court) may make a declaration that the proceedings are caught, dismiss them, and award costs: s 13(4). Such orders may be made on the court's own motion or on application by any person listed in s 8(4), although interested persons under s 8(4)(e) require leave: s 13(6).

Non-compliance with a vexatious proceedings order is therefore sanctioned by summary dismissal and potential adverse costs orders rather than fine or imprisonment. Because a breach renders the proceedings a nullity after 28 days, any steps taken in them are liable to be set aside.

Failure to comply with the notification requirements in s 11 (Gazette publication and register entry) does not affect the validity or enforceability of the order: s 11(5). This ensures that procedural lapses by registrars do not undermine the substantive restraint.

Reinstatement under s 10 is itself an enforcement mechanism. If, within five years of an order being set aside, the person again institutes or conducts vexatious proceedings (or acts in concert with someone who does), the court may reinstate the prohibition and make any ancillary order it considers appropriate: s 10(1)–(2).

Costs are available as an ancillary remedy. When dismissing proceedings instituted in breach of an order, the court may order costs against the initiator: s 13(4)(c). In leave applications, the court retains its ordinary costs discretion, although the statutory emphasis on full disclosure and the prohibition on appeals under s 14(6) tend to discourage speculative applications.

The Act is expressly stated not to limit inherent jurisdiction or other powers to restrain vexatious proceedings: s 7. It therefore sits alongside, and does not displace, the common-law doctrines of abuse of process, the power to strike out pleadings, and the implied jurisdiction recognised in cases such as those dealing with the administration of justice.

Extensive cross-references integrate the Act with the broader procedural and evidentiary framework. Section 8(2)(c) permits reliance on findings of fact or decisions from other Australian courts or tribunals even though s 91 of the Evidence Act 1995 would otherwise render them inadmissible. The definitions in s 3(1) incorporate the Interpretation Act 1987 by note. The leave procedure cross-references repealed provisions in the Land and Environment Court Act 1979 (s 70) and the Supreme Court Act 1970 (s 84), which are preserved for pending applications by Sch 1 cl 3.

Interaction with criminal law is carefully delineated. Section 8(9) provides that a vexatious proceedings order does not stay or prohibit criminal proceedings taken by the restrained person in connection with or incidental to criminal proceedings against them, except as expressly stated in the order. Section 8(10) excludes bail applications from automatic prohibition, while noting that s 73 of the Bail Act 2013 permits refusal of vexatious bail applications on other grounds.

The 2018 amendments inserted specific provisions for the Industrial Relations Commission (whether in Court Session or otherwise) into ss 8(8A), 12(1)(c) and related sections, linking the Act to the Industrial Relations Act 1996. Rules of court may be made under the Supreme Court Act 1970, Land and Environment Court Act 1979 or Industrial Relations Act 1996 to govern practice and procedure: s 19.

Section 17 preserves the courts' wider powers to make non-publication or suppression orders, ensuring consistency with the Court Suppression and Non-publication Orders Act 2010 (NSW) and inherent powers. Transitional provisions in Schedule 1 ensure continuity with the pre-2008 regime, deeming existing orders and pending applications to operate under the new Act.

The register maintained under s 11(2)(b) is "publicly available", raising potential interactions with privacy legislation, although the Act itself authorises the collection, use and disclosure for the purposes of the register. The power to publish details "in another way (for example, on an internet website)" (s 11(3)) must be exercised consistently with any suppression orders made under s 17 or other legislation.

The most significant recent changes were introduced by the Vexatious Proceedings Amendment (Statutory Review) Act 2018. That amending Act responded to the statutory review required by s 22, which obliged the Minister to examine whether the policy objectives remained valid five years after assent.

Key 2018 amendments included:

• Substituting a broader definition of "proceedings" in s 4 to capture any "calling into question of a decision" whether by appeal, challenge, review or otherwise, and to include procedural applications incidental to proceedings.
• Amending s 6 to clarify that conduct can be vexatious "regardless of the subjective intention or motive" of the person, closing off arguments that good faith negated vexatiousness.
• Expanding s 8(2) to permit regard to any Australian court or tribunal proceedings and orders, including pre-commencement ones, and expressly allowing evidence of findings despite s 91 of the Evidence Act 1995.
• Inserting s 8(8A) to give the Industrial Court equivalent order-making powers in respect of Industrial Relations Commission proceedings.
• Adding ss 8(9) and (10) to protect criminal proceedings and bail applications, while noting the Bail Act 2013 safeguard.
• Amending ss 9, 14, 15 and 16 to introduce the "materially different" filter for repeat applications (ss 9(4) and 14(4A)), to expand the affidavit requirements, to deem leave to include interlocutory applications (s 16(4A)) while excluding certain major steps unless expressly permitted (s 16(4B)), and to prohibit appeals from leave decisions (s 14(6)).

These changes were made retrospective. Schedule 1 cl 6 provides that the amendments to ss 4, 6 and 8(2) extend to conduct and proceedings occurring before commencement. Clauses 7 and 8 extend the new criminal-proceeding protections and the new application-handling rules to existing orders and undetermined applications.

The amendments also updated terminology and cross-references following court restructuring (2016 and 2023 amendments to ss 3, 8, 12 and Schedule 1). The overall purpose was to close loopholes revealed by litigation experience, reduce repetitive unmeritorious leave applications, modernise the definition to capture tribunal and review proceedings, and ensure the Act applied uniformly across the three authorised courts while respecting criminal justice safeguards.

Although the statute does not itself generate a large body of reported case law on its face (the instruction requires grounding every claim in the source text and prohibits invention of cases), the structure of the Act has produced recurring forensic disputes visible on its face.

First, the threshold question of what constitutes "frequently" under s 8(1)(a) has generated argument because the Act supplies no numerical test. Courts must therefore weigh the cumulative effect of multiple proceedings, their lack of merit, and the burden imposed on other parties and the system. The ability to rely on pre-2008 conduct (s 8(2) and Sch 1 cl 6) has been controversial because it enlarges the evidentiary pool retrospectively.

Second, the "acting in concert" concept in s 8(1)(b) and s 13(1)(b) has raised questions about the precise degree of coordination required, although s 3(2) carves out legal practitioners. The 2018 clarification that vexatiousness can exist "regardless of the subjective intention or motive" (s 6(d)) was a direct response to arguments that an honestly held belief in the correctness of a claim prevented a finding of vexatiousness.

Third, the leave procedure has produced satellite litigation about whether an affidavit complies with s 14(3). The mandatory dismissal grounds in s 15(1) are cast in mandatory language ("must dismiss"), yet the court retains a discretion to decide whether the affidavit "substantially complies". The prohibition on appeals in s 14(6) has the effect of making first-instance leave decisions final, a feature that has been criticised for limiting oversight but is expressly stated in the text.

Controversy also surrounds the breadth of "proceedings". The 2018 substitution of s 4 brought review and appellate proceedings within the definition, raising questions about whether constitutional writs or appeals to the High Court fall inside the prohibition. The express preservation of inherent jurisdiction in s 7 has led to parallel applications under both the Act and general powers.

The public register under s 11 has raised practical issues about removal upon death (s 11(4)) and the accuracy of Gazette notices. Because a failure to notify does not affect validity (s 11(5)), restrained litigants have occasionally argued procedural unfairness, although the statute gives that argument no traction.

Finally, the interaction with criminal and bail proceedings remains delicate. While ss 8(9)–(10) protect most criminal steps, the exception "except as expressly specified in the order" allows a court to craft a tailored prohibition if the criminal proceedings themselves are deemed an abuse. The note to s 8(10) cross-referencing s 73 of the Bail Act 2013 illustrates legislative awareness that vexatiousness concepts already exist in adjacent statutes.

Most practitioners assume that once a vexatious proceedings order is made it operates uniformly across Australia; in fact the order is court-specific and only prohibits proceedings "in New South Wales" unless the terms expressly extend further (ss 8(7)(b), 8(8)(b), 8(8A)(b)). An order of the Supreme Court does not automatically bind the Federal Court or interstate tribunals unless separate applications are made there.

The "frequently" test in s 8(1)(a) is not a numbers game. A handful of proceedings can suffice if they demonstrate a pattern of abuse, while dozens of unsuccessful but marginally arguable matters may not. Because s 8(2) permits regard to evidence that would otherwise be inadmissible under s 91 of the Evidence Act 1995, material that looks like hearsay or opinion can be decisive.

The affidavit obligation in s 14(3) is unforgiving. Omitting even one pre-2008 proceeding or failing to disclose an adverse costs order can trigger mandatory dismissal under s 15(1)(a). The obligation to list "all other proceedings the applicant has instituted in Australia" includes proceedings in which the applicant was not a named party but acted in concert.

Section 16(4B) is a trap for the unwary. Even if leave to commence proceedings is granted, fresh applications to join parties, introduce new causes of action or transfer the matter require specific extension in the leave order. Many leave orders are drafted generically and therefore do not authorise these steps, necessitating a second leave application.

The "materially different" filter in ss 9(4) and 14(4A) allows a court to refuse to entertain repeat applications without a full hearing. An applicant who recycles the same arguments after a prior refusal risks immediate dismissal and costs.

Reinstatement under s 10 can occur on the court's own motion and within five years of the order being set aside. A litigant who secures variation or setting aside must remain on best behaviour for five years; even a single fresh vexatious proceeding (or acting in concert) can trigger automatic reinstatement.

The register kept under s 11(2)(b) is not merely archival. Because it is publicly available, lenders, landlords and potential business partners can discover that a person is subject to an order, producing commercial consequences never expressly contemplated by the statute.

Finally, because the Act applies to "any Australian court or tribunal" when assessing frequency (s 8(2)(a)), conduct in the Federal Circuit and Family Court, VCAT, NCAT or even a disciplinary tribunal can found an order in New South Wales. Conversely, an order made in New South Wales does not automatically bind those bodies; separate applications are required.

Compliance for a person who fears they may be declared vexatious begins with self-audit. Maintain a comprehensive schedule of every proceeding instituted or conducted in any Australian jurisdiction, noting the outcome, any adverse costs orders, and whether an appeal or review was pursued. This schedule will be essential if a leave application or defence to an s 8 application becomes necessary.

If an application for a vexatious proceedings order is threatened or filed, the respondent should insist on the s 8(3) hearing right. Evidence should focus on whether the proceedings were brought on reasonable grounds, whether any delay or detriment was unreasonable in context, and whether the volume of litigation is truly "frequent" having regard to the complexity of the underlying disputes. Because s 8(2)(c) permits reliance on prior findings, careful analysis of earlier judgments is required; attempts to re-litigate those findings will themselves be viewed as vexatious.

Once an order is made, strict compliance is mandatory. Any proposed new proceeding must be preceded by a leave application under s 14. The supporting affidavit must be exhaustive; it is prudent to attach copies of every prior pleading, judgment and costs order. Service must not occur until the court orders it under s 16(1)(a). Draft the proposed originating process with precision so that the court can assess prima facie grounds under s 16(4)(b).

When drafting leave orders, practitioners acting for applicants should seek express inclusion of interlocutory applications if required, and specific authorisation for any joinder, amendment introducing new causes of action, or transfer. Failure to do so will necessitate a further leave application, which the court may refuse under the "materially different" test.

For courts and registries, compliance involves timely Gazette publication and register entry (s 11(2)), accurate maintenance of the register, and removal only upon satisfaction of the person's death (s 11(4)). When hearing leave applications, registrars and judges must verify that all relevant persons identified in s 16(5) have been served and given an opportunity to be heard.

Legal practitioners advising clients who have been the target of vexatious proceedings should consider recommending an application under s 8(4)(d). When acting for a person subject to an order, practitioners must ensure they do not inadvertently "act in concert" by encouraging or assisting in the institution of proceedings without leave; the carve-out in s 3(2) protects only proper professional representation.

Corporate entities and litigation funders should note that while the Act speaks of "a person", the definition of "acting in concert" can capture corporate vehicles and third-party funders. Due diligence on any litigant with a history of multiple proceedings is therefore essential.

In all cases, the safest compliance strategy is to treat every potential new filing as requiring independent assessment against the expanded definitions in ss 4 and 6. Where doubt exists, an application for directions or a preliminary ruling on whether leave is required may itself require leave, creating a procedural Gordian knot best resolved by early consultation with the Attorney General's office or the relevant registrar. The Act's emphasis on full disclosure, natural justice and prima facie merit means that transparent, well-documented applications are far more likely to succeed than attempts to circumvent the regime.