Vexatious litigants in Queensland
Government clients are sometimes the subject of repeated baseless litigation from self-represented litigants with an axe to grind against the agency. This article examines some applicable legislation to prevent repeated episodes.
The Vexatious Proceedings Act 2005, repealed and replaced the previous Vexatious Litigants Act 1981. The 2005 Act enlarged the scope of the 1981 Act which meant that the Supreme Court could, in determining whether a litigant was ‘vexatious’, take into consideration legal actions brought in tribunals and courts outside of the Queensland jurisdiction, previously not permitted under the 1981 Act.
The Queensland Supreme Court maintains a registrar of 'vexatious litigants'. There are currently 24 declared ‘vexatious litigants’ in Queensland, and the list is ever expanding. Crown Law and specifically the Administrative Law team, have come across many of these litigants over the years, almost always self-represented.
Obtaining a vexatious proceedings order
A ‘vexatious proceedings order’ can be made by the Supreme Court pursuant to s 6(2) of the Act. Such an order can be made by the court if it is satisfied that the person in question, has ‘frequently instituted or conducted vexatious proceedings in Australia’. The frequency or repeated nature of vexatious proceedings is the key to the making of a vexatious proceedings order. The court may have regard to:
(a) proceedings instituted or conducted in any Australian court or tribunal, including proceedings instituted or conducted before the commencement of this section and
(b) orders made by any Australian court or tribunal, including orders made before the commencement of this section.
The schedule to the Act (the Dictionary) defines a ‘vexatious proceeding’ to include:
(a) a proceeding that is an abuse of the process of a court or tribunal and
(b) a proceeding instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose and
(c) a proceeding instituted or pursued without reasonable ground and
(d) a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
Section 5 states that the court may make a vexatious proceedings order upon an application made by:
(a) the Attorney-General
(b) the Crown Solicitor
(c) the Registrar of the Court
(d) a person against whom another person has instituted or conducted a vexatious proceeding or alternatively a person who has a sufficient interest in the matter (with the Court’s leave) or
(e) the court upon its own initiative.
The remedy is therefore available to ‘private’ or non-government litigants the subject of a vexatious proceeding.
Section 6(2) outlines the types of orders the Court may make, including an order staying all or part of any proceeding in Queensland already instituted by the person or an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in Queensland.
Her Honour Justice Mullins provided the following helpful definition of a ‘vexatious proceeding’ in Cooper v Mbuzi  QSC 105:
That definition of what can be a vexatious proceeding is expansive and not prescriptive. That is consistent with the objective of the Act, as expressed in the Explanatory Notes for the Vexatious Proceedings Bill 2005 to address the problems created by vexatious litigants: “A vexatious litigant is a person who demonstrates particular behaviours in the pursuance of legal actions through the courts. These behaviours include taking legal action without any reasonable grounds, a repetition of arguments which have already been rejected, disregard for the court’s practices and rulings, and persistent attempts to abuse the court’s processes. The consequences of pursuing such actions include wastage of public resources and the harassment and annoyance of defendants in litigation that lacks a reasonable basis.
A person will not likely be declared a vexatious litigant after only a single loss in a piece of litigation, no matter how misconceived the proceeding may be.
Effect of a vexatious proceedings order
Where a vexatious proceedings order prohibits the person from instituting proceedings, or proceedings of a particular type, in Queensland s 10 of the Act prohibits the person from instituting proceedings in Queensland without leave of the Supreme Court. The steps for obtaining leave are outlined in ss 11-13 of the Act. The court may dismiss an application for leave to institute a proceeding without having to hear from the target of the proposed proceeding. Otherwise, before the Court, pursuant to s.11, grants leave to institute proceedings, the Applicant must serve a range of relevant persons, including the Attorney-General and the proposed target of the proceeding, who may be heard on the hearing of the application (s 13).
The example of Josiyas Zifanana Mbuzi
Mr Mbuzi is the 20th person to be declared a vexatious litigant pursuant to the Vexatious Proceedings Act 2005 or its predecessor. This declaration was made by Justice Mullins in 2012. As such Mr Mbuzi is prohibited from instituting proceedings in any Queensland Court.This declaration differs from others, in that Mr Mbuzi is prohibited from commencing any proceeding in a Queensland court, unlike other litigants who are prohibited from instituting proceedings only against specific people/companies. As a result of the declaration Mr Mbuzi isrequired to make an application to the court (ex parte) pursuant to the Act for leave to institute a proceeding in a Queensland court.
Relief under the Uniform Civil Procedure Rules 1999 (UCPR)
Separately from the Vexatious Proceedings Act, the UCPR offers its own remedies against vexatious or frivolous proceedings on a case by case basis, rather than a declaration preventing a specific person from bringing any proceeding (rules 15, 171 and 389A).
Rule 15 provides that the Registrar may refer the originating process to the court before issuing it, if the Registrar considers an originating process appears to be an abuse of the process of the court or frivolous or vexatious. Further, rule 171 allows the court at any stage to strike out pleadings (in part or in its entirety) if a pleading:
(a) discloses no reasonable cause of action or defence or
(b) has a tendency to prejudice or delay the fair of the proceeding or
(c) is unnecessary or scandalous or
(d) is frivolous or vexatious or
(e) is otherwise an abuse of the process of the court.
The UCPR also provides in rule 389A a restriction on applications that are frivolous, vexatious or an abuse of court’s process. The rule allows for the court, if satisfied, to make an order, if a party has made more than one application in relation to the existing proceeding that is ‘frivolous, vexatious or an abuse of process’. The order can be made upon an application by a party to the existing proceeding (or on the Court’s own initiative).
Commonwealth legislation has similar provisions to the Vexatious Proceedings Act 2005. Section 77RN of the Judiciary Act 1903 and s 37AO of the Federal Court Act 1976 contain the equivalent provisions in respect of the High Court and Federal Court of Australia respectively. The language of the provisions is similar to ss 5 and 6 of the Queensland Act. Section 77RN allows the High Court to make a vexatious proceedings order against a person which would prohibit them from instituting proceedings in the High Court of Australia. The Federal Court provision allows for similar orders. The criteria are similar in both courts.
The courts take great care before making a vexatious proceedings order because preventing citizens’ access to the courts is a significant step. Obtaining orders can be fraught by the vexatious litigant’s intransigence and other procedural pitfalls. The Administrative Law Team has extensive experience in this area of litigation, and is always happy to assist government clients with applications under the Act.
The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.
Published: 4 April 2017
Author: Lawyer, Menaka Wickramasinghe