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Part 8—Vexatious proceedings

Part 8 Vexatious proceedings

Division 1 Introduction

203   Meaning of a person acting in concert

                   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.

204   Powers of the Federal Circuit and Family Court of Australia (Division 2) not affected

                   This Part does not limit or otherwise affect any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this Part to deal with vexatious proceedings.

Division 2 Vexatious proceedings orders

205   Making vexatious proceedings orders

             (1)  This section applies if the Federal Circuit and Family Court of Australia (Division 2) 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 Circuit and Family Court of Australia (Division 2) 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)  Subsection (2) applies in relation to proceedings in the Federal Circuit and Family Court of Australia (Division 2) 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 Circuit and Family Court of Australia (Division 2) 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 Circuit and Family Court of Australia (Division 2) 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 Circuit and Family Court of Australia (Division 2) 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.

206   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 Circuit and Family Court of Australia (Division 2), 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

207   Proceedings in contravention of vexatious proceedings order

             (1)  If the Federal Circuit and Family Court of Australia (Division 2) 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 210; 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 210.

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

             (3)  Without limiting subsection (2), the Federal Circuit and Family Court of Australia (Division 2) 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 Circuit and Family Court of Australia (Division 2) 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.

208   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 Circuit and Family Court of Australia (Division 2); 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 Circuit and Family Court of Australia (Division 2) 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 210(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

209   Dismissing application for leave

             (1)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge may make an order dismissing an application under section 208 for leave to institute a proceeding if the Court or Judge considers the affidavit does not substantially comply with subsection 208(3).

             (2)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge must make an order dismissing an application under section 208 for leave to institute a proceeding if the Court or Judge considers the proceeding is a vexatious proceeding.

             (3)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge may dismiss the application without an oral hearing (either with or without the consent of the applicant).

210   Granting application for leave

             (1)  Before the Federal Circuit and Family Court of Australia (Division 2) makes an order granting an application under section 208 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 Circuit and Family Court of Australia (Division 2) 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 Circuit and Family Court of Australia (Division 2) may make an order granting the application. The order may be made subject to the conditions the Court considers appropriate.

             (4)  The Federal Circuit and Family Court of Australia (Division 2) may grant leave only if it is satisfied the proceeding is not a vexatious proceeding.