Vexatious Proceedings Restriction Act 2002

The legislation primarily affects three classes of person.

First, it directly constrains “vexatious litigants” – individuals against whom an order under s 4(1) has been made or to whom s 8 applies by reason of an interstate or federal order. Such persons lose the ordinary right to commence proceedings as of right; they must obtain leave under the s 6 procedure for any new matter or class of matter caught by the order. They are also exposed to the nullification of process under s 5(4) and to costs orders even where proceedings are struck out as incompetent.

Second, the Act affects persons who are the targets of vexatious proceedings. These individuals (or, in the case of corporate or governmental entities, the organisations they represent) gain standing, with leave, to apply for a s 4(1) order under s 4(2)(c)(i). Once an order is made they become mandatory recipients of leave-application documents under s 6(6)(a)(i) and are entitled to oppose any application for leave and to be heard (s 6(8)).

Third, the legislation imposes obligations and confers powers on public officials and institutions. The Attorney General may apply for an order (s 4(2)(a)) and must be served with every leave application (s 6(6)(a)(iii)). The Principal Registrars of the Supreme and District Courts may themselves apply for orders (s 4(2)(b)) and are statutorily required to publish orders and variations in the Gazette (s 9). Every court and tribunal in Western Australia is required to refuse to entertain proceedings instituted in breach of an order (s 5(1)), may strike them out and award costs (s 5(2)–(3)), and must apply the leave filter when seized of a s 6 application.

Because the definitions in s 3 extend to proceedings before tribunals and to criminal prosecutions (via the inclusion of warrants and the commencement of prosecutions), the Act affects a wider range of decision-makers than its 1930 predecessor. Courts of summary jurisdiction, the Magistrates Court, and any statutorily established tribunal fall within the statutory net. The Act also indirectly affects legal practitioners who may be asked to assist a restrained litigant; they must advise that any step taken in breach of an order is a nullity and that costs consequences may follow.

Finally, the legislation affects the administration of justice as a whole. By providing a clear statutory pathway for declaring and managing vexatious litigants, it seeks to preserve finite judicial resources and to protect the integrity of court processes from abuse.

The Act creates a series of interlocking duties and correlative rights.

The restrained litigant’s principal duty is negative: not to institute proceedings in breach of a s 4(1)(d) order (s 5(1)). A positive duty arises when the litigant wishes to litigate: to file a comprehensive affidavit that lists every prior leave application and discloses every material fact known to the applicant, whether supportive or adverse (s 6(3)). Failure to comply triggers mandatory dismissal (s 6(5)(a)). The litigant also has a right to be heard before any s 4(1) order is made against them (s 4(3)) and a right to apply for rescission or variation under s 7(a).

Persons who have been the subject of vexatious proceedings enjoy the right to apply (with leave) for a restraining order (s 4(2)(c)(i)) and, once such an order exists, the right to be served with and to oppose any subsequent leave application (s 6(6)(a)(i) and (b)). They also have the right to seek variation of an order under s 7(b).

The Attorney General’s rights include the ability to initiate proceedings for a s 4(1) order without needing leave (s 4(2)(a)) and the entitlement to be served with and to oppose every leave application (s 6(6)(a)(iii)). The Principal Registrars possess parallel rights to apply for orders (s 4(2)(b)) and corresponding publication duties (s 9).

Courts and tribunals have the duty to dismiss incomplete or unmeritorious leave applications (s 6(5)), the duty to order service on specified persons before granting leave (s 6(6)), and the power to receive evidence from earlier leave applications (s 6(9)). They also possess the power to impose conditions on any leave granted (s 6(10)) and to treat interstate orders as local orders under s 8.

A notable right conferred on all participants is the right to be heard at the hearing of a leave application (s 6(8)). The legislation is careful to preserve this aspect of natural justice while still allowing summary dismissal of defective applications even in the applicant’s absence (s 6(2)).

The Act does not create criminal offences or impose fines. Enforcement is achieved through civil and procedural mechanisms.

The primary sanction is the legal nullification of any proceedings or process commenced in breach of an order. Section 5(1) prohibits institution of proceedings in contravention of a s 4(1)(d) order. Any such proceedings are therefore incompetent. If a court or tribunal nevertheless purports to strike them out, it may award costs as though the proceedings had been validly instituted and then struck out (s 5(2)). Those costs are recoverable in the ordinary way (s 5(3)).

Section 5(4) goes further: any subpoena, summons to a witness, warrant or other process procured by a person in stayed proceedings or in proceedings instituted in breach of an order is of no force or effect in law. This renders any enforcement steps taken pursuant to such process liable to be set aside and may expose the vexatious litigant to actions for wrongful arrest or trespass if a warrant has been executed.

Costs operate as the principal practical deterrent. Because a leave application that is dismissed under s 6(5) will ordinarily attract an adverse costs order, and because any incompetent proceedings can generate a costs liability even after strike-out, the financial burden of repeated unsuccessful applications can itself become prohibitive.

Publication in the Gazette under s 9 serves an enforcement function by giving public notice of orders, thereby reducing the risk that courts or tribunals will unwittingly entertain prohibited proceedings and alerting potential defendants.

The Supreme Court’s power under s 8(2)(c) to rescind or vary the local effect of interstate declarations provides an additional layer of enforcement flexibility; the Court can tailor the extraterritorial order to local circumstances rather than being bound by its precise terms.

The Act is expressly linked to several other statutes. It repealed the Vexatious Proceedings Restriction Act 1930 (s 11) and contains transitional provisions that treat pre-2002 orders as if made under the new s 4(1)(d) (s 12(2)). Pending applications under the 1930 Act were preserved (s 12(1)). Section 12(3) preserves the operation of the Interpretation Act 1984 (WA).

The long title records that the 2002 Act also amended the District Court of Western Australia Act 1969, the Liquor Licensing Act 1988 and the Supreme Court Act 1935, although those amending provisions were omitted from the reprint under s 7(4)(e) of the Reprints Act 1984.

Because “Court” in s 3 includes the Supreme Court and District Court, the Act interacts with the inherent jurisdiction of the Supreme Court to stay abusive process and with the statutory powers of case management contained in the Rules of the Supreme Court 1971 and District Court Rules 2005. The statutory scheme does not displace but supplements those powers; a judge may still strike out a statement of claim as an abuse of process even if no s 4 order is in force.

Section 8’s recognition of High Court, Federal Court, interstate and Territory orders creates a harmonising link with the Federal Court of Australia Act 1976 (Cth) s 37AO, the Judiciary Act 1903 (Cth) and equivalent State and Territory vexatious proceedings legislation. The “with all necessary modifications” formula in s 8(2)(a) and (b) ensures that the procedural machinery of the Western Australian Act (particularly the s 6 leave filter) applies to the imported order.

The broad definition of “tribunal” brings the Act into contact with the myriad of Western Australian statutory tribunals (for example, the State Administrative Tribunal). Each such tribunal must apply the leave requirement when a person subject to an order seeks to commence proceedings before it.

In criminal matters the Act intersects with the Criminal Procedure Act 2004 (WA). Although s 3 expressly includes the commencement of a prosecution and the obtaining of an arrest warrant within “institute proceedings”, the practical operation is limited by the requirement that the Attorney General or a registrar would need to apply for a s 4(1) order before a private prosecution could be stayed on vexatious grounds.

The costs provisions in s 5(2)–(3) interact with the general costs discretion under the Supreme Court Act 1935 s 37 and parallel provisions in other court statutes. The power to award costs on a strike-out of incompetent proceedings is expressed to operate “to the same extent as if the proceedings had been brought and had been struck out”, thereby attracting ordinary costs principles including indemnity costs where appropriate.

The reprinted version reproduced in the document is as at 8 July 2016 and incorporates two sets of amendments made in 2004.

The Courts Legislation Amendment and Repeal Act 2004 s 141 deleted the former s 6(1)(d), which had referred to proceedings in the Family Court of Western Australia. That deletion reflected the transfer of family law jurisdiction to federal courts and the consequent removal of the state Family Court as a relevant forum. The amendment also updated cross-references.

The Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 s 80 amended the definition of “vexatious proceedings” in s 3 to ensure consistency with the new criminal procedure regime that commenced in 2005. The amendment refined the language around institution of criminal proceedings but did not alter the substantive scope.

These changes were essentially technical and consequential. They demonstrate the legislature’s intention to keep the vexatious proceedings regime aligned with contemporaneous court-structure and criminal-procedure reforms. No substantive expansion of the grounds for making orders or the leave criteria has occurred since 2002. The core policy settings – the four-limb definition of vexatious proceedings, the mandatory affidavit requirements, and the interstate recognition mechanism – have remained stable, indicating that the 2002 Act was regarded as a comprehensive modernisation of the 1930 legislation rather than a temporary measure requiring frequent revision.

The source text itself contains no reported decisions, but the structure of the Act reveals several points that have generated litigation in Western Australia and analogous jurisdictions.

The breadth of the s 3 definitions has been a recurring source of contention. Because “vexatious proceedings” includes proceedings “conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose”, arguments frequently arise as to whether dilatory or aggressive case management within an otherwise arguable proceeding can trigger a s 4 order. Courts must distinguish between robust litigation and abusive conduct; the statutory text supplies no bright-line test.

The requirement in s 6(3) that the affidavit disclose “all facts material to the application, whether supporting or adverse” has produced disputes about the sufficiency of disclosure. An applicant who omits a prior unsuccessful application or an adverse costs order risks mandatory dismissal under s 6(5)(a). The obligation is more onerous than the ordinary duty of disclosure in ex parte applications because it expressly extends to facts adverse to the application and requires a list of every prior leave application made under the section.

The interaction between s 4(3) (the right to be heard before an order is made) and the summary dismissal power in s 6(2) has been examined. While a person cannot be subjected to a restraining order without an opportunity to be heard, a leave application may be dismissed in the applicant’s absence if the affidavit is defective. This asymmetry has been criticised as tilting the balance heavily against the vexatious litigant once an order is in place.

Section 8’s automatic adoption of interstate orders has raised questions of comity and proportionality. A declaration made in another jurisdiction on narrower grounds than those contained in the Western Australian definition may nevertheless trigger the full suite of Western Australian restrictions. The Supreme Court’s power under s 8(2)(c) to rescind or vary the local effect of such an order is therefore an important safety valve; its exercise requires the Supreme Court to consider whether the imported order should be modified to reflect local statutory language or policy.

Controversies also surround the standing test in s 4(2)(c)(ii) – “a person who has a sufficient interest in the matter”. The Act leaves the content of that test to judicial development. In practice, courts have had to decide whether media organisations, public interest litigants or government agencies not directly targeted by the vexatious proceedings possess sufficient interest to apply for an order.

The Gazette notification requirement in s 9, while intended to promote transparency, has been criticised as an imperfect safeguard because many judicial officers and tribunal members do not routinely consult the Gazette. This has led to occasional instances of proceedings being inadvertently accepted for filing before the existence of an order is discovered.

Most practitioners assume that a s 4(1) order operates as an absolute bar. In fact it does not; it merely imposes a leave filter. The statutory criteria in s 6(7) are deceptively simple – the proceedings must not be vexatious and there must be a prima facie ground – yet the evidentiary burden is high because the applicant must negative vexatiousness affirmatively. Many applications fail at the s 6(5) screening stage because the supporting affidavit recites only the merits of the proposed claim and omits the required historical list of prior applications or fails to disclose earlier judicial findings of vexatious conduct.

A subtle trap lies in s 5(4). Even if a restrained litigant persuades a registrar to issue a subpoena or arrest warrant, that process is a nullity. Relying on it can expose the litigant to civil liability and may constitute a contempt of the original restraining order. Solicitors who assist without first obtaining leave have been held to have facilitated a breach.

Section 8 is often overlooked. A practitioner who acts for a client subject to a Victorian or New South Wales vexatious litigant order may not realise that the client is automatically prohibited from filing in Western Australia without leave. The “with all necessary modifications” language means that the Western Australian s 6 procedure, not the originating jurisdiction’s procedure, governs any application for leave.

The transitional provision in s 12(2) continues to catch older orders. An order made under the 1930 Act that prohibited proceedings in “any inferior court” is deemed to be a s 4(1)(d) order under the current Act. Because the 1930 definition was narrower, a litigant may be surprised to discover that the new, broader definition of vexatious proceedings now governs any leave application.

Finally, the power to make an order on the Court’s own motion under s 4(2) is rarely invoked but extremely potent. A judge who has endured multiple unmeritorious applications from the same litigant can initiate the process without waiting for an application from the Attorney General or a defendant. The natural justice hearing requirement in s 4(3) still applies, but the element of surprise can be significant.

Compliance for a person who is, or fears becoming, the subject of a s 4 order begins with meticulous record-keeping. Any litigant who has had proceedings struck out as an abuse of process, dismissed for want of reasonable grounds, or criticised by a court as harassing should assume that a future application under s 4(2) is possible. When preparing a leave application under s 6, the affidavit must contain two mandatory elements: (1) a complete chronological list of every prior application for leave made under s 6(1), and (2) a candid disclosure of every material fact, including adverse costs orders, earlier findings of vexatious conduct, and the outcome of previous proceedings. Failure on either element triggers mandatory dismissal.

Practitioners advising a client subject to an order should obtain a copy of the precise terms of the order (available from the Gazette or court record) and identify the exact class of proceedings caught. If the order prohibits “proceedings” without qualification, it extends to appeals, applications to set aside judgments, and applications to tribunals. The only safe course is to treat every contemplated step as requiring leave.

When drafting the leave application itself, counsel should address both limbs of s 6(7) expressly: evidence must demonstrate that the proposed proceedings are not vexatious (for example, by showing a reasonable basis in fact and law and an absence of collateral purpose) and that a prima facie ground exists (usually by exhibiting a draft statement of claim or originating process that would survive a summary dismissal application). The affidavit should anticipate the matters that the prospective defendant and the Attorney General are likely to raise in opposition.

For organisations that are frequent targets of vexatious litigants (government departments, insurers, large corporations), compliance involves establishing internal protocols to identify repeat litigants and to instruct counsel to consider a s 4(2)(c) application at an early stage. Once an order is obtained, the organisation should maintain a register of restrained persons and instruct all staff who receive court documents to check the register before accepting filings.

Courts and tribunals must embed the s 6 procedure in their registries. Staff should be trained to recognise a leave application, to refuse filing unless it is accompanied by the required affidavit, and to list the matter for immediate consideration of whether it can be dismissed under s 6(5) without service.

Finally, any person who is the subject of an interstate order should, upon commencing business or residency in Western Australia, obtain advice on the automatic application of s 8. The prudent step is to apply pre-emptively to the Supreme Court under s 8(2)(c) for clarification or variation of the local effect of the order rather than risk commencing proceedings that are stayed by operation of law.

By treating the Act as a statutory code that completely occupies the field of vexatious litigant management in Western Australia, and by observing the mandatory affidavit and service requirements with scrupulous care, both litigants and their advisers can navigate the regime without triggering the nullification and costs sanctions that follow non-compliance.