New legislation will be introduced in New South Wales in an effort to prevent people bringing unmeritorious law suits, New South Wales Attorney General John Hatzistergos has announced.
The legislation will make it easier for orders to be made against people — known as “vexatious litigants” — who abuse the judicial process by bringing frivolous law suits for the purpose of harassing or intimidating others.
Hatzistergos estimates that only around 13 people in New South Wales have had vexatious litigant orders made against them to date, and he believes that aspects of the current legislation pose a barrier to having a greater number of legitimate orders made.
“The threshold is very, very strict before a person can actually have an order made against them,” Hatzistergos said. “At the moment that high threshold is an inhibiting factor to bringing vexatious litigation proceedings, and, by and large, that’s been recognised by the fact that such few proceedings have been brought.”
The current threshold, set out in section 84 of the Supreme Court Act 1974 (NSW), only allows an order to be made against a person who “habitually and persistently and without any reasonable ground” institutes vexatious legal proceedings. The reforms now proposed by the New South Wales government would see that threshold lowered considerably, to allow an order to also be made against a person who “frequently” brings such proceedings.
In addition, the reforms seek to broaden the range of people who can bring proceedings to have an order made against a vexatious litigant. Under the current regime, only the Attorney General or a “person aggrieved” have that ability.
However under the proposed new legislation, Hatzistergos explained, proceedings could also be brought by the Solicitor General, the registrar of the court, and — with leave of the court — anyone with a sufficient interest in the matter. In addition to the Supreme Court, orders will be able to be made in the Land and Environment Court and the Industrial Relations Commission.
The new legislation would also expand the range of matters that the court can take into account, allowing the court to consider not only proceedings that have been brought by a person in New South Wales, but also in any other Australian state or territory.
The court would also be given greater flexibility in terms of orders that it can make, including orders staying all or part of the current proceedings, prohibiting a person from instituting proceedings or prohibiting a person from instituting certain types of proceedings.
Although he isn’t certain about the exact number, Hatzistergos is confident that there are vexatious litigants currently slipping through the system.
“The number of vexatious litigants we have at the moment is relatively small. Although that doesn’t necessarily mean that the court’s unchallenged by persons bringing multiple proceedings — often not for the purpose of having a meritorious law suit adjudicated on, but for the purpose of intimidating, embarrassing or harassing,” he said.
“I’ve sent out consultation letters to various stakeholders and the response I’ve received so far has been overwhelmingly positive. It’s difficult to know the precise effect that this will have, though, on the basis of the responses that I’ve had, I’m confident that there will be a response.” he said.
The changes will bring New South Wales into line with Queensland, Western Australia and the Northern Territory, who have already fallen into line with national model laws.