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Report No. 192

Western Australia

In Western Australia, they have the 'Vexatious Proceedings Restriction Act, 2002'. It contains 13 sections and a Schedule.

Section 3 defines 'Court' as meaning the Supreme Court or a Judge of the State Supreme Court, the District Court, or a District Judge.

Section 3 also defines the words 'institute proceedings' as including:

"(a) in the case of civil proceedings, the taking of a step or the making of an application which may be necessary in a particular case before proceedings can be commenced against a party;

(b) in the case of proceedings before a tribunal, the taking of a step or the making of an application which may be necessary in a particular case before proceedings can be commenced before the tribunal;

(c) in the case of criminal proceedings, the commencement of 'prosecution' or the obtaining of a warrant for the arrest of an alleged offender; and

(d) in the case of civil or criminal proceedings, or proceedings before a tribunal, the taking of a step or the making of an application which may be necessary to commence an appeal in relation to the proceedings or to a decision or determination made in the course of the proceedings."

'Proceedings' are also defined as including:

"(a) any cause, matter, action, suit, proceeding, trial, or inquiry of any kind within the jurisdiction of any Court, including a Court of summary jurisdiction, or a tribunal;

(b) any proceedings, including interlocutory proceedings, taken in connection with or incidental to proceedings pending before a Court, including a Court of summary jurisdiction or a tribunal; and

(c) an appeal from a decision or determination, whether or not a final decision or determination, of a Court, including a Court of summary jurisdiction, or a tribunal."

Then, the words 'vexatious proceedings' are defined as meaning the following:

"(a) which are an abuse of the process of a Court or a tribunal;

(b) instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;

(c) instituted or pursued without reasonable ground; or

(d) conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.

This definition does not use the words 'habitually' or 'persistently' or 'frequently' litigatory as in UK or USA etc. This definition appears to be much wider and appears also to cover 'frivolous cases'.

Section 4 refers to 'Restriction of vexatious proceedings" and reads as follows:

"4(1) If a Court is satisfied that -

(a) a person has instituted or conducted vexatious proceedings (whether before or after the commencement of this Act); or

(b) it is likely that the person will institute or conduct vexatious proceedings, the Court may make either or both of the following orders -

(c) an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by that person;

(d) an order prohibiting that person from instituting proceedings, or proceedings of a particular class, without the leave of a Court or tribunal, as the case requires, under section 6(1)

(2) An order under subsection (1) may be made by the Court on its own motion or on the application of -

(a) the Attorney General;

(b) the Principal Registrar of the Supreme Court or the Principal Registrar of the District Court; or

(c) with leave of the Court -

(i) a person against whom another person has instituted or conducted vexatious proceedings, or

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

(3) The Court must not make an order under subsection (1) -

(a) staying any proceedings that have been instituted by a person, either as to the whole or part of the proceedings; or

(b) prohibiting a person from instituting proceedings, or proceedings of a particular class; without hearing that person or giving that person an opportunity of being heard.

The section 5 mentions the 'Effect of an order to stay proceedings or to prohibit the institution of proceedings without leave'. It states:

"(1) Proceedings are not to be instituted in contravention of an order under section 4(1)(d).

(2) If -

(a) despite subsection (1), proceedings are instituted in contravention of an order under section 4(1)(d); and

(b) those proceedings are struck out by a Court or tribunal in the purported exercise of a power to strike out the proceedings, the Court or tribunal has the power to award costs to the same extent as if the proceedings had been brought and had been struck out by the Court or tribunal.

(3) Costs awarded under subsection (2) are recoverable in the same manner as if the proceedings would have been instituted in the Court or tribunal and had been struck out by the Court or tribunal.

(4) A subpoena, summons to a witness, warrant, or process procured to be issued by a person in any proceedings stayed by an order under section 4(1)(c) or instituted by a person in contravention of an order under section 4(1)(d) is of no force or effect in law".

We have seen that in USA, in some State statutes, on such situations where a vexatious litigant files a case without seeking leave, he can be punished for contempt of Court. But here, costs can be imposed.



Prevention of Vexatious Litigation Back




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