Vexatious Litigant

Published 19 Dec 2019
Alex Bourne

The term Vexatious litigant refers to people who continuously seek to file applications in court without having reasonable grounds, or for an alternate purpose. A person who has been declared a vexatious litigant is barred from instituting new legal proceedings without special permission from a court.

Within the Family Law jurisdiction, the power for the court to make a vexatious proceedings orders comes from Section 102QB of the Family Law Act. The court can exercise its jurisdiction in proceedings under this Act if it is satisfied that:

(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.

During 2018-2019 there was a total of 17,070 cases filed in the Federal Circuit Court of Australia seeking Final Family Court Orders, with the majority of cases being resolved within 12 months. While it is clear that the vast majority of litigants aim to be in and out of court, there are some litigants who continuously and frequently file applications in courts. Those people can be considered Vexatious Litigants.

However, labelling a litigant vexatious is not a power the courts use lightly. Indeed the High Court of Australia, for only the 4th time in its history, labelled a litigant vexatious in the case Conomy v Maden [2019] HCATrans 49. Having the right to litigate is one of the corner stones of certain democratic values and one in which a very small percentage of litigant's abuse.

Within the Family Law jurisdiction, where Family violence is ripe, recent research has suggested that vexatious litigants may share similar characteristics with domestic violence offenders, being that they use control and coercion against others. This can be seen with the continued instigation of proceedings, or endlessly filing applications within an existing case or appealing multiple interim orders to a higher court. Indeed, it is common for vexatious litigants to even try to apply for special leave to the High Court multiple times if they do not receive the result they wanted.

Vexatious litigants use applications or proceedings for a number of reasons, with a common theme revolving around control. Control in trying to gain access to a child where the other party is fixed in their misconstrued view of the other parent; Control in trying to get what they want regardless of whether it right; control in trying to break the other party emotionally and financially. By dragging the other party through court, for often years, the vexatious litigant continues this cycle of control over the other party.

But given the small number of litigants labelled as vexatious, how high is the bar for a person to be ordered vexatious by the court? Vexatious proceedings includes:

(a) proceedings that are an abuse of the process of a court or tribunal;

(b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose;

(c) proceedings instituted or pursued in a court or tribunal without reasonable ground;

(d) proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

An example of a recent vexatious litigant can be found in Jabbar & Gade (No.22) [2019] FCCA 2186. In this matter the, parties had been litigating since late 2015 up until August 2019. During the space of 4 years the mother had filed 8 applications in a case, 2 applications for the Judge to disqualify herself, 2 contravention applications, 2 contempt applications, 3 Stay applications, 6 Appeals to the Full Court of the Family Court and 4 applications for Special Leave to appeal to the High Court. On top of the enormous amount of applications filed in the Family Law jurisdiction, the mother has filed 4 Statement of Claims in the District Court and 1 Statement of Claim in the Supreme Court of NSW. The majority of these applications, the Father was required to respond to. The cost and time required by the father to answer these applications, ultimately ended in him asking to be relieved from endlessly dealing with the mother’s applications by way of the court making an order. This is a clear matter in which a litigant abused the court system with baseless applications so that she could use the proceedings to harass and annoy the father.

On the other hand, Ericsson & Jarrold (No.9) [2019] FCCA 3202, over a period of 3 years, the father filed 3 initiating applications, contravention applications, 1 application for the judge to disqualify himself, 1 appeal to the Full Court of the Family Court and 1 application for review of the registrar's decision. In dismissing the application for the father to be ordered as a vexatious litigant, the Judge noted that while the applications can be characterised as vexatious in that it was brought on without proper basis, the judge did not find that the father himself could be viewed as vexatious.

As the above cases demonstrate there is a high bar to for a person to be ordered vexatious by the court within the Family Law Jurisdiction.

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