What is your situation if the court made a vexatious litigant order against you?

Vexatious litigation is legal action brought solely to harass, annoy, embarrass or subdue an adversary, regardless of the merits or prospects of success of the action. A once-off action won’t be enough to be declared vexatious, but if you continue to institute vexatious legal actions the court may make a vexatious litigant order against you.

To make a vexatious order under s 102QB(2) the court considers the following:

1. Have you filed vexatious proceedings in an Australian court/tribunal Sec 102QB(1) defines vexatious proceedings as:

• Proceedings that are an abuse of the court’s process
• Proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose
• Proceedings instituted without reasonable grounds,

Take note: this is an inclusive definition, which means it lists some examples, but there are other proceedings that could also give rise to a vexatious proceedings order.

2. Has this person frequently filed such proceedings?

Is there a history of this person having frequently instituted vexatious proceedings? There is no definition of frequently in the Act. The court would consider what constitutes “frequently” in the context of all the facts of the individual case.

If 1 and 2 are answered affirmatively, the court can exercise its discretion to grant a vexatious proceedings order. The court will weigh up the seriousness of restricting a person’s right to institute legal action, against the need to protect the other party from the constant impact of litigation.

Case Law

In Cannon & Acres 2014 the court ordered that the father was a vexatious litigant and prohibited the father from instituting any further court proceedings, except with the consent of the court.

This followed after 7 years of dispute about access to a 12 yr old child. The father filed numerous actions against the mother for alleged contraventions and for an order restraining the mother from taking the child to a specific psychologist; all his actions had been dismissed. Upon application by the mother, the court granted a vexatious proceedings order was against the father under section 102QB(2) of the Family Law Act 1975. As a result, the father was prohibited from instituting any further proceedings against the mother or about the child without leave of the court.

On the facts of the case, the court also ordered that the mother had sole parental responsibility and the father may not spend any time with the child and also have no communication with her.

Consequences of a vexatious order

In terms of Section 102QE(1)(a) and 2 of the Family Law Act 1975 no proceedings may be instituted without the Court’s permission, but an applicant who is subject to a vexatious proceedings order may apply to the Court for leave to institute proceedings under the Act.

Requirements for leave to institute proceedings

Sec 102QE (3) sets out the requirements that the Applicant must meet for a successful application for such leave:

The Applicant must file an affidavit that includes:

• A list of all the occasions that the Applicant has applied for leave under this section; and
• A list of all proceedings the Applicant has instituted in any Australian court or tribunal, including actions instituted before the commencement of this section; and
• a disclosure of all relevant facts about the application; supporting or adverse to the application, that is known to the applicant.

Take note: Section 102QE(4) states that the Applicant may not even serve a copy of the application or affidavit on the other person unless the court makes an order under Sec 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

In 2016 the father filed an application for permission to write to the child once every six weeks and to send birthday and Christmas cards to the child.

In Acres & Cannon (2016) FamCA 1 the court had to consider the father’s application under sec 102QE to file for permission to correspond with the child. The court found that this particular order sought by the father was not a vexatious application and found that the father complied with the requirements set out in Section 102QE of the Act.

At that stage, however, the court did not grant leave for the father to institute proceedings for an order granting him permission to correspond with his child, but it specifically stated that no leave was granted, or denied. It still needed to consider an order under section 102QG of the Act and the matter was adjourned for hearing.

Legal assistance

If you are at risk of getting a vexatious litigant order against you, it is best to consult with a lawyer as soon as possible. Such an order can seriously restrict your right to institute an action in a court of law.