I rise to speak on the Vexatious Proceedings Bill 2014. The opposition will not be opposing the bill. The bill reduces the costs incurred by the court and members of the community through unnecessary and unmeritorious litigation.
In 2008 the Victorian parliamentary Law Reform Committee inquired into vexatious litigants and received significant response from the community.
While it is common ground that all people should have fair access to justice, it is also known that vexatious litigants absorb the limited resources of the courts — and disproportionately so. Court staff are occupied by vexatious litigants, who are usually self-represented and are charged with providing both procedural and legal advice to guide them through the court process. As applications made by vexatious litigants pile up, the people forced to defend the unmeritorious applications also incur increasing costs.
Any costs to the court, in time and money, are heavy blows when its resources are already stretched to the limit, and the absence of legal support, exacerbated by the dire lack of funding to Victoria Legal Aid, further contributes to these problems. Although the coalition government is reviewing the impact of vexatious litigants on the court system, it has once again ignored the serious issues of legal aid funding and the lack of resources allocated to the court system.
This bill aims to improve the effectiveness of the court system through early disposal of unmeritorious litigation. It empowers the Supreme, County and Magistrates courts and the Victorian Civil and Administrative Tribunal to make litigation restraint orders to varying degrees. The first, in order of lowest to highest restraint, is a limited litigation restraint order which can be made where a person has made two or more vexatious applications in a proceeding.
Such an order can prevent further interlocutory applications in the proceeding without leave of the court. An extended litigation restraint order can be made, without leave, where a person who has frequently conducted vexatious litigation against a person or entity in relation to a specific matter can be prevented from continuing or commencing proceedings against that person in relation to that matter.
A general litigation restraint order may prevent continuation or commencement of proceedings in any Victorian court or tribunal, without leave, where a person has persisted with vexatious proceedings. This type of order can only be made by the Supreme Court.
The Attorney-General, a person against whom the vexatious application is brought or someone who has sufficient interest in the matter may apply for a limited or extended litigation restraint order.
Only the Attorney-General is able to apply for a general litigation restraint order, although the Supreme Court is able to make such an order on its own motion. The court or tribunal will also be able to consider a person’s litigation history in all Australian jurisdictions when deciding whether to make the order.
Additionally, orders can be made against a person who is acting in concert with a person subject to a litigation restraint order. The court may make a litigation restraint order against the person acting in concert or may alternatively strike out or stay the application that, if made by the vexatious litigant, would have contravened their restraint order.
Section 21 of the Supreme Court Act 1986 currently provides that the court may declare someone to be a vexatious litigant. However, these provisions are not always effective and the applications are made very infrequently.
Only 15 people have been declared vexatious litigants since 1928, although this is more likely to reflect the inadequacies in the current system than the extent of the problem. The new regime for managing vexatious litigants moves away from restrictive orders being a last resort and towards a system of graduated orders, which enables earlier responses.
In terms of reaching the test in my own mind about access and human rights, I set about getting access to a number of other authorities in relation to this. Graduated orders are in line with the recommendations made by the Victorian parliamentary Law Reform Committee following its inquiry in 2008. The inquiry explained vexatious litigants as those people who:
may sue … people over the same issues again and again. They may sue the lawyers in the legal proceedings, the judges who dismiss their cases and other people who become involved in their disputes.
They may appeal every adverse decision almost as a matter of habit.
The evidence received by the inquiry suggested that there was no one reason some people become vexatious litigants.
Some submissions attributed it to poor complaint handling and dispute resolution schemes prior to commencing litigation; the nature of the court system, which can produce frustration and confusion; the lack of legal advice and therefore a misunderstanding of the process and expectations; or, controversially, individual circumstances such as possible mental health difficulties, personality, attitudes or behavioural disorders.
The committee received many submissions, among them submissions from users of the court system, experts and organisations such as Victoria Legal Aid and the Fitzroy Legal Service. Notably, His Honour Judge Misso of the County Court provided a submission detailing his own experience of vexatious litigants.
His Honour’s submission provides valuable insight into the practical strain placed on court resources and explains that the vexatious litigant’s perception of what litigation will provide is at the heart of the problem, which registry staff and judges are unable to deal with — it is often impossible for them to behave rationally and accept that the result may go against them.
This perception leads to frequent contact with the registry staff and judges, resulting in more time being given to these litigants over others who may even be legally represented and incurring significant costs.
These litigants need to be identified from the outset; too often they are not identified until there has been various litigation initiated in numerous courts and tribunals and a reputation develops.
Finally, the Attorney-General is the chief law officer and it should be his obligation to protect the courts from vexatious litigants. Accordingly the Attorney-General should appear and contest all applications by vexatious litigants seeking leave to commence litigation.
The inquiry also heard that other approaches, such as increased access to legal advice, alternative dispute resolution and the improvement of complaint management within departments could also assist with early intervention and divert pressure away from the court system.
The recommendations extend to alternative — that is, non-legislative — ways of dealing with vexatious litigants, including better case management and more training and guidance for the judiciary and court staff.
The committee made 32 recommendations overall, focusing on restricting litigants where there is clear evidence of a pattern of vexatious applications. The recommendations strike the balance between access to justice and the need to protect the court system and the community from excess and unnecessary litigation.
Having fair access to justice is an important value in Australia. His Honour Justice Kirby, formally of the High Court of Australia, was once quoted as saying, ‘It is regarded as a serious thing in this country to keep a person out of the courts’.
Access to justice is also recognised as a human right. Article 14 of the International Covenant on Civil and Political Rights provides:
All persons shall be equal before the courts and tribunals.
In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
The United Nations Human Rights Committee has said that article 14:
encompasses the right of access to the courts … Access to administration of justice must effectively be guaranteed in all such cases to ensure that no individual is deprived, in procedural terms of his/her right to claim justice.
The Charter of Human Rights and Responsibilities Act 2006 provides in section 24 for a right to a fair hearing. However, the Victorian Court of Appeal has held that this right is not absolute and may be subject to ‘reasonable restrictions aimed at achieving legitimate objectives’.
These objectives include preventing overuse of court services, with consequential unavailability and cost consequences for the community. Although this bill will in some ways restrict access to the court system for vexatious litigants, consideration must also be afforded to the parties who are obliged to respond to or defend vexatious applications.
Those parties are also entitled to fair access, which is often hampered by the increased costs and delays associated with typical vexatious applications. The Law Reform Committee suggested that given the court resources absorbed by vexatious litigants, they reduce the already limited resources available to the rest of the community and therefore compromise the entire community’s access to justice.
In order to strike a sensitive balance between restricting access to justice for vexatious litigants on the one hand and ensuring the efficiency of courts and access to justice for the rest of the community on the other hand, this bill includes a number of safeguards.
Firstly, a court can only make a litigation restraint order where it is satisfied that the applications are of a vexatious nature; secondly, there are restraint orders of varying degrees to allow the restrictions imposed to be in proportion to the vexatious behaviour; thirdly, with each of the orders it is open to the vexatious litigant to seek the court’s leave to make further application or commence further litigation if they have a sustainable course of action; fourthly, there is a right to appeal the making of litigation restraint orders and acting in concert orders; fifthly, a person subject to a litigation restraint order may seek leave to apply for a variation or revocation of the order; and sixthly, the court may determine an application by conducting an oral hearing if there are exceptional circumstances and it is appropriate to do so in the interests of justice and to ensure procedural fairness.
This bill will assist the courts to manage vexatious litigants who, in the pursuit of repeated unmeritorious claims, consume court resources and incur costs for those forced to defend the applications.
Although the opposition does not oppose the bill, it implores the government to extend its focus to other areas impacting the justice system.
It was common among submissions received by the committee that vexatious litigants make up a small handful of the overall litigants in all courts and tribunals. However small, it is a reality that the courts are simply lacking resources, so that these problems exacerbate the state of efficiency.
Cuts to legal aid funding, limited allocation of court resources and punitive simplistic approaches to crime are all compromising the community’s access to the court system.
Victorians want to see the government consider and implement solutions for the broader issues rather than just scraping the surface.
Whilst this bill provides some small improvements to the court system, the wider agenda needs to be looked at very seriously.