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Access to Justice (Federal Jurisdiction) Amendment Bill 2011

Schedule 3 Vexatious proceedings

Part 1 Amendments

Family Law Act 1975

1  Subsection 97(1)

Omit “subsections (1A) and (2)”, substitute “this Act”.

2  Before Part XII

Insert:

Part XIB Vexatious proceedings

Division 1 Preliminary

102Q   Definitions

             (1)  In this Part:

appropriate court official means:

                     (a)  in relation to the Family Court of Australia—the Chief Executive Officer or Principal Registrar of the Court; and

                     (b)  in relation to the Federal Magistrates Court—the Chief Executive Officer of the Court; and

                     (c)  in relation to the Family Court of Western Australia—the Principal Registrar of the Court; and

                     (d)  in relation to any other court—the chief executive officer or principal registrar (however described) of the court.

Australian court or tribunal means a court or tribunal of the Commonwealth, a State or a Territory.

institute , in relation to proceedings, includes:

                     (a)  for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against a party; and

                     (b)  for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal; and

                     (c)  for criminal proceedings—the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender; and

                     (d)  for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.

proceedings :

                     (a)  in relation to a court—has the meaning given by subsection 4(1); and

                     (b)  in relation to a tribunal—means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding.

proceedings of a particular type includes:

                     (a)  proceedings in relation to a particular matter; and

                     (b)  proceedings against a particular person.

vexatious proceedings includes:

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

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

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

                     (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.

vexatious proceedings order means an order made under subsection 102QB(2).

             (2)  A reference in this Part to a person acting in concert with another person in instituting or conducting proceedings does not include a reference to a person who is so acting as a lawyer or representative of the other person.

102QA   Powers of a court not affected

                   This Part does not limit or otherwise affect any powers that a court has apart from this Part to deal with vexatious proceedings.

Note:          For example, section 118 allows a court to dismiss particular proceedings if it is satisfied that the proceedings are frivolous or vexatious.

Division 2 Vexatious proceedings orders

102QB   Making vexatious proceedings orders

             (1)  This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:

                     (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.

             (2)  The court may make any or all of the following orders:

                     (a)  an order staying or dismissing all or part of any proceedings in the court already instituted by the person;

                     (b)  an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;

                     (c)  any other order the court considers appropriate in relation to the person.

Note:          Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

             (3)  The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

                     (a)  the Attorney-General of the Commonwealth or of a State or Territory;

                     (b)  the appropriate court official;

                     (c)  a person against whom another person has instituted or conducted vexatious proceedings;

                     (d)  a person who has a sufficient interest in the matter.

             (4)  The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

             (5)  An order made under paragraph (2)(a) or (b) is a final order.

             (6)  For the purposes of subsection (1), the court may have regard to:

                     (a)  proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

                     (b)  orders made by any Australian court or tribunal; and

                     (c)  the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

102QC   Notification of vexatious proceedings orders

             (1)  A person may request the appropriate court official of a court for a certificate stating whether a person named in the request is or has been the subject of a vexatious proceedings order made by the court.

             (2)  If a person makes a request under subsection (1) and the person named in the request is or has been the subject of a vexatious proceedings order made by the court, the appropriate court official must issue to the person making the request a certificate:

                     (a)  specifying the date of the order; and

                     (b)  specifying any other information prescribed by the applicable Rules of Court.

             (3)  This section is subject to any law of the Commonwealth, or order of the court, restricting the publication or disclosure of the name of a party to proceedings in the court.

Note:          Section 155 of the Evidence Act 1995 deals with adducing evidence of Commonwealth records.

Division 3 Particular consequences of vexatious proceedings orders

102QD   Proceedings in contravention of vexatious proceedings order

             (1)  If a person is subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act:

                     (a)  the person must not institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG; and

                     (b)  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 under section 102QG.

             (2)  If proceedings are instituted in contravention of subsection (1), the proceedings are stayed.

             (3)  Without limiting subsection (2), the court may make:

                     (a)  an order declaring proceedings are proceedings to which subsection (2) applies; and

                     (b)  any other order in relation to the stayed proceedings it considers appropriate, including an order for costs.

             (4)  The court may make an order under subsection (3) on its own initiative or on the application of any of the following:

                     (a)  the Attorney-General of the Commonwealth or of a State or Territory;

                     (b)  the appropriate court official;

                     (c)  a person against whom another person has instituted or conducted vexatious proceedings;

                     (d)  a person who has a sufficient interest in the matter.

102QE   Application for leave to institute proceedings

             (1)  This section applies to a person (the applicant ) who is:

                     (a)  subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or

                     (b)  acting in concert with another person who is subject to an order mentioned in paragraph (a).

             (2)  The applicant may apply to the court for leave to institute proceedings that are subject to the order.

             (3)  The applicant must file an affidavit with the application that:

                     (a)  lists all the occasions on which the applicant has applied for leave under this section; and

                     (b)  lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

                     (c)  discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

             (4)  The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

102QF   Dismissing application for leave

             (1)  The court may make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the affidavit does not substantially comply with subsection 102QE(3).

             (2)  The court must make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the proceedings are vexatious proceedings.

             (3)  The court may dismiss the application without an oral hearing (either with or without the consent of the applicant).

             (4)  The court may make an order under this section in Chambers.

102QG   Granting application for leave

             (1)  Before the court makes an order granting an application under section 102QE for leave to institute proceedings, it must:

                     (a)  order that the applicant serve:

                              (i)  the person against whom the applicant proposes to institute the proceedings; and

                             (ii)  any other person specified in the order;

                            with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application; and

                     (b)  give the applicant and each person described in subparagraph (a)(i) or (ii), on appearance, an opportunity to be heard at the hearing of the application.

             (2)  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.

             (3)  The court may make an order granting the application. The order may be made subject to the conditions the court considers appropriate.

             (4)  The court may grant leave only if it is satisfied the proceedings are not vexatious proceedings.

3  Section 118

Repeal the section, substitute:

118   Frivolous or vexatious proceedings

                   The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:

                     (a)  dismiss the proceedings; and

                     (b)  make such order as to costs as the court considers just.

4  After paragraph 123(1)(d)

Insert:

                     (e)  providing for and in relation to the prevention or termination of vexatious proceedings; and

Federal Court of Australia Act 1976

5  Subsection 17(1)

Omit “section”, substitute “Act”.

6  Paragraph 24(1D)(c)

After “section 37AF”, insert “, 37AS or 37AT”.

7  Paragraph 24(1D)(d)

After “section 88F”, insert “, 88U or 88V”.

8  Before Part VA

Insert:

Part VAAA Vexatious proceedings

Division 1 Preliminary

37AM   Definitions

             (1)  In this Part:

Australian court or tribunal means a court or tribunal of the Commonwealth, a State or a Territory.

institute , in relation to proceedings, includes:

                     (a)  for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against a party; and

                     (b)  for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal; and

                     (c)  for criminal proceedings—the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender; and

                     (d)  for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.

proceeding :

                     (a)  in relation to a court—has the meaning given by section 4; and

                     (b)  in relation to a tribunal—means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding.

proceedings of a particular type includes:

                     (a)  proceedings in relation to a particular matter; and

                     (b)  proceedings against a particular person.

vexatious proceeding includes:

                     (a)  a proceeding that is an abuse of the process of a court or tribunal; and

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

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

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

vexatious proceedings order means an order made under subsection 37AO(2).

             (2)  A reference in this Part to a person acting in concert with another person in instituting or conducting proceedings does not include a reference to a person who is so acting as a lawyer or representative of the other person.

37AN   Powers of the Court not affected

                   This Part does not limit or otherwise affect any powers that the Court has apart from this Part to deal with vexatious proceedings.

Division 2 Vexatious proceedings orders

37AO   Making vexatious proceedings orders

             (1)  This section applies if the Court is satisfied:

                     (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 a vexatious proceeding in an Australian court or tribunal.

             (2)  The Court may make any or all of the following orders:

                     (a)  an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

                     (b)  an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

                     (c)  any other order the Court considers appropriate in relation to the person.

Note:          Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

             (3)  The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

                     (a)  the Attorney-General of the Commonwealth or of a State or Territory;

                     (b)  the Registrar of the Court;

                     (c)  a person against whom another person has instituted or conducted a vexatious proceeding;

                     (d)  a person who has a sufficient interest in the matter.

             (4)  The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

             (5)  An order made under paragraph (2)(a) or (b) is a final order.

             (6)  For the purposes of subsection (1), the Court may have regard to:

                     (a)  proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

                     (b)  orders made by any Australian court or tribunal; and

                     (c)  the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

37AP   Notification of vexatious proceedings orders

             (1)  A person may request the Registrar of the Court for a certificate stating whether a person named in the request is or has been the subject of a vexatious proceedings order.

             (2)  If a person makes a request under subsection (1) and the person named in the request is or has been the subject of a vexatious proceedings order, the Registrar must issue to the person making the request a certificate:

                     (a)  specifying the date of the order; and

                     (b)  specifying any other information prescribed by the Rules of Court.

             (3)  This section is subject to any law of the Commonwealth, or order of the Court, restricting the publication or disclosure of the name of a party to proceedings in the Court.

Note:          Section 155 of the Evidence Act 1995 deals with adducing evidence of Commonwealth records.

Division 3 Particular consequences of vexatious proceedings orders

37AQ   Proceedings in contravention of vexatious proceedings order

             (1)  If the Court makes a vexatious proceedings order prohibiting a person from instituting proceedings, or proceedings of a particular type, in the Court:

                     (a)  the person must not institute proceedings, or proceedings of that type, in the Court without the leave of the Court under section 37AT; and

                     (b)  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 under section 37AT.

             (2)  If a proceeding is instituted in contravention of subsection (1), the proceeding is stayed.

             (3)  Without limiting subsection (2), the Court may make:

                     (a)  an order declaring a proceeding is a proceeding to which subsection (2) applies; and

                     (b)  any other order in relation to the stayed proceeding it considers appropriate, including an order for costs.

             (4)  The Court may make an order under subsection (3) on its own initiative or on the application of any of the following:

                     (a)  the Attorney-General of the Commonwealth or of a State or Territory;

                     (b)  the Registrar of the Court;

                     (c)  a person against whom another person has instituted or conducted a vexatious proceeding;

                     (d)  a person who has a sufficient interest in the matter.

37AR   Application for leave to institute proceedings

             (1)  This section applies to a person (the applicant ) who is:

                     (a)  subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court; or

                     (b)  acting in concert with another person who is subject to an order mentioned in paragraph (a).

             (2)  The applicant may apply to the Court for leave to institute a proceeding that is subject to the order.

             (3)  The applicant must file an affidavit with the application that:

                     (a)  lists all the occasions on which the applicant has applied for leave under this section; and

                     (b)  lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

                     (c)  discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

             (4)  The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 37AT(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

37AS   Dismissing application for leave

             (1)  The Court or a Judge may make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the affidavit does not substantially comply with subsection 37AR(3).

             (2)  The Court or a Judge must make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the proceeding is a vexatious proceeding.

             (3)  The Court or a Judge may dismiss the application without an oral hearing (either with or without the consent of the applicant).

37AT   Granting application for leave

             (1)  Before the Court makes an order granting an application under section 37AR for leave to institute a proceeding, it must:

                     (a)  order that the applicant serve:

                              (i)  the person against whom the applicant proposes to institute the proceeding; and

                             (ii)  any other person specified in the order;

                            with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application; and

                     (b)  give the applicant and each person described in subparagraph (a)(i) or (ii), on appearance, an opportunity to be heard at the hearing of the application.

             (2)  At the hearing of the application, the Court may receive as evidence any record of evidence given, or affidavit filed, in any proceeding 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.

             (3)  The Court may make an order granting the application. The order may be made subject to the conditions the Court considers appropriate.

             (4)  The Court may grant leave only if it is satisfied the proceeding is not a vexatious proceeding.

Federal Magistrates Act 1999

9  Before Part 7

Insert:

Part 6B Vexatious proceedings

Division 1 Preliminary

88N   Definitions

             (1)  In this Part:

Australian court or tribunal means a court or tribunal of the Commonwealth, a State or a Territory.

institute , in relation to proceedings, includes:

                     (a)  for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against a party; and

                     (b)  for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal; and

                     (c)  for criminal proceedings—the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender; and

                     (d)  for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.

proceeding :

                     (a)  in relation to a court—has the meaning given by section 5; and

                     (b)  in relation to a tribunal—means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding.

proceedings of a particular type includes:

                     (a)  proceedings in relation to a particular matter; and

                     (b)  proceedings against a particular person.

vexatious proceeding includes:

                     (a)  a proceeding that is an abuse of the process of a court or tribunal; and

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

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

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

vexatious proceedings order means an order made under subsection 88Q(2).

             (2)  A reference in this Part to a person acting in concert with another person in instituting or conducting proceedings does not include a reference to a person who is so acting as a legal practitioner or representative of the other person.

88P   Powers of the Federal Magistrates Court not affected

                   This Part does not limit or otherwise affect any powers that the Federal Magistrates Court has apart from this Part to deal with vexatious proceedings.

Division 2 Vexatious proceedings orders

88Q   Making vexatious proceedings orders

             (1)  This section applies if the Federal Magistrates Court is satisfied:

                     (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 a vexatious proceeding in an Australian court or tribunal.

             (2)  The Federal Magistrates Court may make any or all of the following orders:

                     (a)  an order staying or dismissing all or part of any proceedings in the Federal Magistrates Court already instituted by the person;

                     (b)  an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Federal Magistrates Court;

                     (c)  any other order the Federal Magistrates Court considers appropriate in relation to the person.

Note:          Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

             (3)  Subsection (2) applies in relation to proceedings in the Federal Magistrates Court other than proceedings under the Family Law Act 1975 .

Note:          Part XIB of the Family Law Act 1975 deals with vexatious proceedings under that Act.

             (4)  The Federal Magistrates Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

                     (a)  the Attorney-General of the Commonwealth or of a State or Territory;

                     (b)  the Chief Executive Officer;

                     (c)  a person against whom another person has instituted or conducted a vexatious proceeding;

                     (d)  a person who has a sufficient interest in the matter.

             (5)  The Federal Magistrates Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

             (6)  An order made under paragraph (2)(a) or (b) is a final order.

             (7)  For the purposes of subsection (1), the Federal Magistrates Court may have regard to:

                     (a)  proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

                     (b)  orders made by any Australian court or tribunal; and

                     (c)  the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

88R   Notification of vexatious proceedings orders

             (1)  A person may request the Chief Executive Officer for a certificate stating whether a person named in the request is or has been the subject of a vexatious proceedings order.

             (2)  If a person makes a request under subsection (1) and the person named in the request is or has been the subject of a vexatious proceedings order, the Chief Executive Officer must issue to the person making the request a certificate:

                     (a)  specifying the date of the order; and

                     (b)  specifying any other information prescribed by the Rules of Court.

             (3)  This section is subject to any law of the Commonwealth, or order of the Federal Magistrates Court, restricting the publication or disclosure of the name of a party to proceedings in the Federal Magistrates Court.

Note:          Section 155 of the Evidence Act 1995 deals with adducing evidence of Commonwealth records.

Division 3 Particular consequences of vexatious proceedings orders

88S   Proceedings in contravention of vexatious proceedings order

             (1)  If the Federal Magistrates Court makes a vexatious proceedings order prohibiting a person from instituting proceedings, or proceedings of a particular type, in the Federal Magistrates Court:

                     (a)  the person must not institute proceedings, or proceedings of that type, in the Federal Magistrates Court without the leave of the Federal Magistrates Court under section 88V; and

                     (b)  another person must not, acting in concert with the person, institute proceedings, or proceedings of that type, in the Federal Magistrates Court without the leave of the Federal Magistrates Court under section 88V.

             (2)  If a proceeding is instituted in contravention of subsection (1), the proceeding is stayed.

             (3)  Without limiting subsection (2), the Federal Magistrates Court may make:

                     (a)  an order declaring a proceeding is a proceeding to which subsection (2) applies; and

                     (b)  any other order in relation to the stayed proceeding it considers appropriate, including an order for costs.

             (4)  The Federal Magistrates Court may make an order under subsection (3) on its own initiative or on the application of any of the following:

                     (a)  the Attorney-General of the Commonwealth or of a State or Territory;

                     (b)  the Chief Executive Officer;

                     (c)  a person against whom another person has instituted or conducted a vexatious proceeding;

                     (d)  a person who has a sufficient interest in the matter.

88T   Application for leave to institute proceedings

             (1)  This section applies to a person (the applicant ) who is:

                     (a)  subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Federal Magistrates Court; or

                     (b)  acting in concert with another person who is subject to an order mentioned in paragraph (a).

             (2)  The applicant may apply to the Federal Magistrates Court for leave to institute a proceeding that is subject to the order.

             (3)  The applicant must file an affidavit with the application that:

                     (a)  lists all the occasions on which the applicant has applied for leave under this section; and

                     (b)  lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

                     (c)  discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

             (4)  The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 88V(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

88U   Dismissing application for leave

             (1)  The Federal Magistrates Court or a Federal Magistrate may make an order dismissing an application under section 88T for leave to institute a proceeding if the Federal Magistrates Court or Federal Magistrate considers the affidavit does not substantially comply with subsection 88T(3).

             (2)  The Federal Magistrates Court or a Federal Magistrate must make an order dismissing an application under section 88T for leave to institute a proceeding if the Federal Magistrates Court or Federal Magistrate considers the proceeding is a vexatious proceeding.

             (3)  The Federal Magistrates Court or a Federal Magistrate may dismiss the application without an oral hearing (either with or without the consent of the applicant).

88V   Granting application for leave

             (1)  Before the Federal Magistrates Court makes an order granting an application under section 88T for leave to institute a proceeding, it must:

                     (a)  order that the applicant serve:

                              (i)  the person against whom the applicant proposes to institute the proceeding; and

                             (ii)  any other person specified in the order;

                            with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application; and

                     (b)  give the applicant and each person described in subparagraph (a)(i) or (ii), on appearance, an opportunity to be heard at the hearing of the application.

             (2)  At the hearing of the application, the Federal Magistrates Court may receive as evidence any record of evidence given, or affidavit filed, in any proceeding 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.

             (3)  The Federal Magistrates Court may make an order granting the application. The order may be made subject to the conditions the Federal Magistrates Court considers appropriate.

             (4)  The Federal Magistrates Court may grant leave only if it is satisfied the proceeding is not a vexatious proceeding.

Judiciary Act 1903

10  Before Part XB

Insert:

Part XAB Vexatious proceedings

Division 1 Preliminary

77RL   Definitions

             (1)  In this Part:

Australian court or tribunal means a court or tribunal of the Commonwealth, a State or a Territory.

Chief Executive and Principal Registrar means the Chief Executive and Principal Registrar of the High Court appointed under section 18 of the High Court of Australia Act 1979 .

institute , in relation to proceedings, includes:

                     (a)  for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against a party; and

                     (b)  for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal; and

                     (c)  for criminal proceedings—the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender; and

                     (d)  for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.

proceeding :

                     (a)  in relation to a court—means a proceeding in the court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal; and

                     (b)  in relation to a tribunal—means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding.

proceedings of a particular type includes:

                     (a)  proceedings in relation to a particular matter; and

                     (b)  proceedings against a particular person.

vexatious proceeding includes:

                     (a)  a proceeding that is an abuse of the process of a court or tribunal; and

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

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

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

vexatious proceedings order means an order made under subsection 77RN(2).

             (2)  A reference in this Part to a person acting in concert with another person in instituting or conducting proceedings does not include a reference to a person who is so acting as a legal practitioner or representative of the other person.

77RM   Powers of the High Court not affected

                   This Part does not limit or otherwise affect any powers that the High Court has apart from this Part to deal with vexatious proceedings.

Division 2 Vexatious proceedings orders

77RN   Making vexatious proceedings orders

             (1)  This section applies if the High Court is satisfied:

                     (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 a vexatious proceeding in an Australian court or tribunal.

             (2)  The High Court may make any or all of the following orders:

                     (a)  an order staying or dismissing all or part of any proceedings in the High Court already instituted by the person;

                     (b)  an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the High Court;

                     (c)  any other order the High Court considers appropriate in relation to the person.

Note:          Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

             (3)  The High Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

                     (a)  the Attorney-General of the Commonwealth or of a State or Territory;

                     (b)  the Chief Executive and Principal Registrar;

                     (c)  a person against whom another person has instituted or conducted a vexatious proceeding;

                     (d)  a person who has a sufficient interest in the matter.

             (4)  The High Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

             (5)  An order made under paragraph (2)(a) or (b) is a final order.

             (6)  For the purposes of subsection (1), the High Court may have regard to:

                     (a)  proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

                     (b)  orders made by any Australian court or tribunal; and

                     (c)  the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

77RO   Notification of vexatious proceedings orders

             (1)  A person may request the Chief Executive and Principal Registrar for a certificate stating whether a person named in the request is or has been the subject of a vexatious proceedings order.

             (2)  If a person makes a request under subsection (1) and the person named in the request is or has been the subject of a vexatious proceedings order, the Chief Executive and Principal Registrar must issue to the person making the request a certificate:

                     (a)  specifying the date of the order; and

                     (b)  specifying any other information prescribed by Rules of Court.

             (3)  This section is subject to any law of the Commonwealth, or order of the High Court, restricting the publication or disclosure of the name of a party to proceedings in the High Court.

Note:          Section 155 of the Evidence Act 1995 deals with adducing evidence of Commonwealth records.

Division 3 Particular consequences of vexatious proceedings orders

77RP   Proceedings in contravention of vexatious proceedings order

             (1)  If the High Court makes a vexatious proceedings order prohibiting a person from instituting proceedings, or proceedings of a particular type, in the High Court:

                     (a)  the person must not institute proceedings, or proceedings of that type, in the High Court without the leave of the High Court under section 77RS; and

                     (b)  another person must not, acting in concert with the person, institute proceedings, or proceedings of that type, in the High Court without the leave of the High Court under section 77RS.

             (2)  If a proceeding is instituted in contravention of subsection (1), the proceeding is stayed.

             (3)  Without limiting subsection (2), the High Court may make:

                     (a)  an order declaring a proceeding is a proceeding to which subsection (2) applies; and

                     (b)  any other order in relation to the stayed proceeding it considers appropriate, including an order for costs.

             (4)  The High Court may make an order under subsection (3) on its own initiative or on the application of any of the following:

                     (a)  the Attorney-General of the Commonwealth or of a State or Territory;

                     (b)  the Chief Executive and Principal Registrar;

                     (c)  a person against whom another person has instituted or conducted a vexatious proceeding;

                     (d)  a person who has a sufficient interest in the matter.

77RQ   Application for leave to institute proceedings

             (1)  This section applies to a person (the applicant ) who is:

                     (a)  subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the High Court; or

                     (b)  acting in concert with another person who is subject to an order mentioned in paragraph (a).

             (2)  The applicant may apply to the High Court for leave to institute a proceeding that is subject to the order.

             (3)  The applicant must file an affidavit with the application that:

                     (a)  lists all the occasions on which the applicant has applied for leave under this section; and

                     (b)  lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

                     (c)  discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

             (4)  The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 77RS(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

77RR   Dismissing application for leave

             (1)  The High Court, or a Justice sitting in Chambers, may make an order dismissing an application under section 77RQ for leave to institute a proceeding if the High Court or Justice considers the affidavit does not substantially comply with subsection 77RQ(3).

             (2)  The High Court, or a Justice sitting in Chambers, must make an order dismissing an application under section 77RQ for leave to institute a proceeding if the High Court or Justice considers the proceeding is a vexatious proceeding.

             (3)  The High Court, or a Justice sitting in Chambers, may dismiss the application without an oral hearing (either with or without the consent of the applicant).

77RS   Granting application for leave

             (1)  Before the High Court makes an order granting an application under section 77RQ for leave to institute a proceeding, it must:

                     (a)  order that the applicant serve:

                              (i)  the person against whom the applicant proposes to institute the proceeding; and

                             (ii)  any other person specified in the order;

                            with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application; and

                     (b)  give the applicant and each person described in subparagraph (a)(i) or (ii), on appearance, an opportunity to be heard at the hearing of the application.

             (2)  At the hearing of the application, the High Court may receive as evidence any record of evidence given, or affidavit filed, in any proceeding 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.

             (3)  The High Court may make an order granting the application. The order may be made subject to the conditions the High Court considers appropriate.

             (4)  The High Court may grant leave only if it is satisfied the proceeding is not a vexatious proceeding.



 

Part 2 Application and saving provisions

11  Application of amendments

The power of a court to make a vexatious proceedings order under the Family Law Act 1975 , the Federal Court of Australia Act 1976 , the Federal Magistrates Act 1999 or the Judiciary Act 1903 , as amended by this Schedule, applies in relation to proceedings instituted in, or transferred to, that court on or after the commencement of this item.

12  Saving—pending proceedings etc.

(1)       Despite the amendment made by item 3, section 118 of the Family Law Act 1975 , as in force immediately before the commencement of that item, continues to apply on and after that commencement in relation to proceedings that were pending in the court immediately before that commencement.

(2)       Despite the amendment made by item 3, the Family Law Act 1975 , as in force immediately before the commencement of that item, continues to apply on and after that commencement in relation to an order made under paragraph 118(1)(a), (b) or (c) of that Act before, on or after that commencement.

(3)       Despite the amendments made by this Schedule, rules of court, in relation to a court, that were in force immediately before the commencement of this item under the Family Law Act 1975 , the Federal Court of Australia Act 1976 , the Federal Magistrates Act 1999 or the Judiciary Act 1903 (to the extent the rules relate to vexatious proceedings) continue to apply on and after that commencement in relation to proceedings that were pending in the court immediately before that commencement.

(4)       The amendments made by this Schedule do not affect the validity of any orders that were made before the commencement of this item under rules of court made under the Family Law Act 1975 , the Federal Court of Australia Act 1976 , the Federal Magistrates Act 1999 or the Judiciary Act 1903 (to the extent the rules relate to vexatious proceedings).