Vexatious Litigant

Under the Family Law Act 1975, a court or tribunal can declare a person a “vexatious litigant” if they persistently start legal action designed to harass, annoy, frustrate, worry or cost another person. The person subject to the order is prohibited from instituting proceedings without leave (permission) from the court. If proceedings are instituted without leave, they are stayed (suspended).

The impact a vexatious litigant can have on the opposing party can be significant. The court must balance a person’s fundamental right to access to justice through the courts with ensuring court process is not abused.

Vexatious proceedings

Section 102Q states vexatious proceedings include proceedings:

• that are an abuse of the process of a court or tribunal; and
• instituted or conducted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
• instituted or pursued in a court or tribunal without reasonable ground.

“Institute” means to apply for civil proceedings against a party or in a tribunal; to make a complaint or apply for a warrant in criminal proceedings; or to apply to appeal a decision in a civil or criminal matter.

Case law has defined vexatious proceedings as “instituted with the intention of annoying or embarrassing” a person; brought “for collateral purposes”; and “so obviously untenable or manifestly groundless as to be utterly hopeless”.

Making an order

The court can declare a person a vexatious litigant if they frequently institute or conduct vexatious proceedings in Australian courts or tribunals. No definition of “frequently” is provided.

The court can make an order to stay (suspend) or dismiss all or part of any proceedings begun by the person, or an order to prohibit the person from instituting proceedings.

It can make an order:

• on its own initiative;
• on application by the Attorney-General of the Commonwealth or a state or territory;
• on application by a court official;
• on application by a person against whom the person has instituted or conducted vexatious proceedings;
• on application by a person who has sufficient interest in the matter.

The court must give the person a chance to be heard before making an order about them.

Applying for leave

If the person subject to the order wants to apply for leave to institute proceedings, they must file an affidavit with the application that lists all the times the person has applied for leave and all proceedings they have instituted in a court or tribunal. A copy of the application and affidavit must be given to the person against whom the applicant proposes to institute proceedings, and that person must be given the opportunity to be heard.

The court must dismiss the application if it considers the proceedings are vexatious, and can do this without a hearing.

Examples of vexatious litigation

In the marriage of Wilmoth RS and Wilmoth MR (1981)

The parties had been married for 8 years and had 2 sons. Litigation spanned over at least 7 years before the mother applied for an injunction to restrain the father from instituting any proceedings unless he had legal representation or had obtained leave from the court. At the time, there were 9 applications by the father before the Family Court, which sought various orders including that:

• after each function at his business premises, the mother bring the children to the business to help clean up;
• he be granted complete access to the children during all school holidays;
• he not be required to maintain the children when he had access;
• the mother pay for certain items of furniture, despite a signed property settlement;
• when the children were sick, they were not to be left in their mother’s home but brought to him to be cared for;
• he be given control over the children’s education.

The court granted the mother’s injunction, stating “any further proceedings by the husband…would be a plain abuse of the process of the court”.

Jabbar & Gade (2019)

The parties, who had 2 children together, separated in 2015, and parenting orders were made that year. Then in the space of 4 years, the mother filed more than 30 applications. Most of these applications required a response from the father.

The judge in a 2017 hearing of one application commented: “Almost as soon as the ink was dry on the orders of 31 August 2015, an unbelievable array of applications to change the orders, contempt and contravention applications, appeals and associated applications were unleashed. Only a small number of applications were commenced by the father.”

The father eventually successfully applied to the court for the mother to be declared a vexatious litigant so he could be “relieved from endlessly dealing with the mother’s applications”. In granting the father’s order, the judge stated: “I am satisfied that the mother pursued these applications without reasonable ground and indeed it is very difficult to avoid the conclusion that she conducted these proceedings so as to harass and annoy the father.”

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