Please note: This is an extract from Hansard only. Hansard extracts are reproduced with permission from the Parliament of Western Australia.

VEXATIOUS PROCEEDINGS RESTRICTION BILL 2002
Introduction and First Reading

Bill introduced, on motion by Mr McGinty (Attorney General), and read a first time.

Second Reading

MR McGINTY (Fremantle - Attorney General) [12.45 pm]: I move -

That the Bill be now read a second time.

This Bill will give Western Australia a new, modern and efficient process by which persons may be declared by the courts to be "vexatious" litigants. This will be in stark contrast with the current Vexatious Proceedings Restriction Act 1930, which will be repealed.
I am pleased to advise that the Bill implements relevant recommendations made by the Western Australian Law Reform Commission in its September 1999 "Review of the Criminal and Civil Justice System" on the problem of vexatious litigants. As I have publicly indicated, the Government is committed to implementing the recommendations in that report and other commission reports. The introduction of this Bill is evidence of the Government's resolve to do so. Of course, in this context, I note that the former Government introduced a corresponding Bill. However, the former Government did not proceed with that Bill. In contrast, this Government will make every endeavour to ensure the passage of this Bill through Parliament.
For the information of members, material relevant to vexatious litigants is contained in paragraphs 19.10 to 19.13, inclusive, of the Law Reform Commission's report. The commission made 10 recommendations. Nine of the recommendations are incorporated in the proposed new Act. The only exception is the commission's recommendation that the legislation be named the "Malicious Proceedings Restriction Act". However, there are good policy and legal reasons that the word "vexatious" should be retained. As a matter of law the word "malicious" denotes an evil intent. However, "vexatious" refers to an intention to annoy or an act that has the effect of causing annoyance. The word "vexatious" is used in the statutory provisions in all other States and Territories. Additionally, an action may be

For the convenience of members I will provide a short summary of the present law. First, it should be noted that the criteria providing the grounds on which a person may be declared to be a vexatious litigant are in section 3 of the Vexatious Proceedings Restriction Act 1930. Section 3 provides that the Supreme Court must be satisfied of three things: that the proceedings that were previously instituted were vexatious; that those proceedings were commenced habitually and persistently; and that those proceedings were instituted without any reasonable ground.

Secondly, it is important to note that the Vexatious Proceedings Restriction Act 1930 also provides that only the Attorney General can bring an action under the Act. The practical effect has been that an application is brought only in the clearest of cases, following extensive consideration of the relevant past history, including court documents, correspondence, and judicial decisions. Despite the growing volume of litigation, there have been seven successful applications under the Act since 1930. One unsuccessful application was made by the then Attorney General in 1999. The paucity of successful applications should not lead to the conclusion that this represents the number of persons who in fact conduct vexatious litigation; that is, although the numbers by themselves do not appear significant, there is, as the Law Reform Commission recognised, a different reality behind them.

At times, even though litigants have not been declared vexatious, the proceedings they institute in fact can only be described as reaching the level of vendetta. As a result, ordinary persons who find themselves as a defendant in these circumstances are subjected to harassment. Therefore, the new legislation will effect a number of important reforms. These will not only assist those ordinary persons who are unnecessarily forced into litigation but also will make the judicial process in this area of the law more accessible and efficient, with consequential beneficial effects;. for example, it will reduce the workload of the courts.

An important aspect of the Bill, in contrast with section 3 of the 1930 Act, is that it will expand the criteria to be used by courts in determining whether proceedings are vexatious. In deciding whether a person has instituted or conducted vexatious proceedings or whether a person will institute or conduct such proceedings, the court will make a decision about whether those proceedings are: an abuse of the process of a court or tribunal; instituted to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose; instituted or pursued without reasonable ground; or conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.

As I have already indicated, only the Attorney General may, under the 1930 Act, seek to have a person declared vexatious. In contrast, the Bill will provide that, at his or her own instigation, a Supreme or District Court judge may determine that a person is a vexatious litigant. In addition, the principal registrar of the court may make an application to the court for an order that a person is a "vexatious" litigant. The Attorney General will, of course, retain the ability to make an application.

Importantly, the Bill makes provision for two further types of applicant; namely, a defendant against whom another litigant has previously instituted vexatious proceedings, and a person with a "sufficient interest" in the matter. In both of these cases leave of the court is first required before the application proceeds. It is important that the leave of the court is required in these cases. Members will appreciate that this will prevent persons inappropriately using the new Act.

Of course, it is necessary to recognise the right of people to institute judicial proceedings to vindicate their claims. This right should not be unnecessarily or inappropriately curtailed. As a result, the Bill creates a process by which vexatious litigants can obtain leave of the court to institute proceedings. There are two stages in this process. The first stage provides protection to potential defendants from undue harassment. This is achieved by requiring the preliminary application seeking leave of the court to proceed to the substantive case to be conducted without the potential defendant being notified or otherwise made aware of the application. That is, these initial proceedings are ex parte. All relevant materials must be put before the court. Therefore, the new Act will require that this ex parte application must be accompanied by an affidavit disclosing all material facts, both supporting the application and adverse to it. This ex parte application is not served on any other person. The court may dismiss this ex parte application if the affidavit does not make full disclosure, the proceedings are vexatious, or prime facie grounds do not exist for the proposed substantive proceedings.

If the ex parte application is not dismissed, a second stage begins. The court grants leave to serve both the application for leave and the affidavit on the proposed defendant, the original applicant who obtained the "vexatious" order, and the Attorney General. Even at this stage, it should be noted that the proceedings in the substantive case have not yet commenced. The persons served with those documents will then be given an opportunity under the new Act to oppose the application for leave to institute the substantive proceedings. The court must hear those persons if they so wish. The court may dismiss the application or grant leave to institute the substantive proceedings on such conditions as it thinks fit.
In conclusion, it is important to note that through all these processes the new legislation will provide an appropriate balance between the right of persons to institute court proceedings and the right of others not to be subject to vexatious

Debate adjourned, on motion by Mr Marshall.