What are the consequences of vexatious proceedings orders? Vexatious proceedings mean legal actions that intend to harass, annoy, or cause harm to the defendant, rather than to seek a legal remedy.
- That are an abuse of the process of a court or tribunal,
- Instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose,
- Instituted or pursued in a court or tribunal without reasonable ground, and
- Conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
Hence, vexatious proceedings can be in the form of repetitive lawsuits, baseless motions or appeals, or lawsuits filed with malicious intent. Proceedings are “vexatious” when they are repetitive, burdensome, or meritless.
A vexatious litigant abuses the legal process which subjects them to sanctions or vexatious proceedings orders. But what are the consequences of vexatious proceedings orders? This article discusses consequences of vexatious proceedings orders under the Family Law Act 1975 (the Act).
Specifically, Part XIB, Division 3, Sections 102QD – 102QG of the Act governs consequences of vexatious proceedings orders.
Section 102QD: Proceedings in Contravention of Vexatious Proceedings Order
Generally, consequences of vexatious proceedings orders include a Court prohibiting a vexatious litigant being from initiating proceedings unless the Court grants leave (permission). On the other hand, Courts stay the proceedings (temporarily stop a judicial proceeding) if they started without the Court’s permission.
Section 102QD of the Act provides that if a person is subject to a vexatious proceedings order:
- the person must not institute proceedings, or proceedings of that type, in the court without the leave of the court, and
- another person must not, acting in concert with the person, institute proceedings, or proceedings of that type in the court without the leave of the court.
Hence, the law prohibits a person who is subject to a vexatious proceedings order from instituting further proceedings. If they institute proceedings without permission from the Court, the Court will stay the proceedings. The Court may make an order staying the proceedings, and any other order in relation to the stayed proceedings it considers appropriate, including an order for costs.
The Court makes an order on its own initiative or on the application of any of the following:
- the Attorney-General of the Commonwealth or of a State or Territory,
- an appropriate court official,
- a person against whom another person has instituted or conducted vexatious proceedings, and
- a person who has a sufficient interest in the matter.
Section 102QE. Filing an Application for Leave to Institute Proceedings
Under Section 102QE of the Act, a person who is subject to a vexatious proceedings order or a person acting in concert with someone who is subject to such an order, may apply to the Court for leave to institute proceedings.
Under Section 102QE (3), the applicant must file an affidavit with the application that:
- lists all the occasions on which the applicant has applied for leave,
- lists all other proceedings the applicant has instituted in any Australian court or tribunal, and
- discloses all relevant facts about the application, whether supporting or adverse to the application, that the applicant knows about.
Section 102QF. Dismissing an Application for Leave
Under Section 102QF of the Act, the Court dismisses the application for leave under the following circumstances:
- The Court considers the affidavit does not substantially comply with Section 102QE (3), as mentioned above.
- The Court considers the further proceedings are vexatious proceedings.
In addition, the Court may dismiss the application without an oral hearing (either with or without the consent of the applicant).
Section 102QG. Granting an Application for Leave
Under Section 102QG of the Act, the Court may make an order granting the application, and an order may be made subject to the conditions the Court considers appropriate. The Court also grants leave only if it is satisfied the proceedings are not vexatious proceedings.
In addition, the law provides that before the Court makes an order granting an application for leave to institute proceedings, it must first order that the applicant serve a copy of the application and affidavit, and a notice that the person is entitled to be heard on the application to:
- the person against whom the applicant proposes to institute the proceedings, and
- any other person specified in the order.
The Court must also give the applicant and each person involved an opportunity to be heard at the hearing of the application.
At the hearing of the application, the Court may receive as evidence any record of evidence given, or affidavit filed, in any proceedings in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party.
Case Law: In the marriage of Wilmoth, R.S. and Wilmoth, M.R. (1981)
In this leading Family Law case on vexatious proceedings, the parties had been married for eight years and had two sons. Litigation spanned over seven years before the mother applied for an injunction to restrain the father from instituting any proceedings.
At that time, the father made nine applications to the Family Court. He sought various orders including that he be given custody of the children or unlimited access until the children are 18 years old, and he be given control over the children’s education among others.
In the final judgement, the Judge said that it was clear the husband intended to institute further proceedings to force his wife to give way to his demands regarding access and the control of the children.
The Judge found that any further proceedings instituted by the husband concerning access to the children would be a plain abuse of the process of the Court. As a consequence, the Court ordered that the husband be restrained from instituting further proceedings unless he was represented by a solicitor, or had first obtained leave or permission from the Court.
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