This website is for use by legal professionals (lawyers and law practices) only. If the information is used incorrectly, you could risk losing money or your legal rights. If you are a member of the public looking for free advice about your legal problems please visit legalaid.vic.gov.au, or contact our Legal Help advice line on 1300 792 387, Monday to Friday from 8 am to 6 pm. 

If you decide to use or rely on the information or make decisions based on the information in this website (which VLA does not recommend) VLA is not liable to you or any third party in any way for any loss, damage, costs or expenses you or they may suffer or incur as a result.

Vexatious litigants and civi procedure

Information about laws that can restrict people from litigating if they continually bring actions without merit.

Who is a vexatious litigant?

A vexatious litigant is a person who makes an application to court that is considered to be an abuse of court process.

These litigants may sue the same person or people repeatedly, or they may sue a series of different people. This places a significant strain on the legal system by wasting the court's valuable time.

What is a vexatious proceeding or application?

A vexatious proceeding or application includes one that is:

  • an abuse of process of a court or tribunal
  • commenced or conducted in a way to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
  • commenced or pursued without reasonable grounds.

Vexatious litigation is considered to be an abuse of the court process. The applicants are almost always people who are representing themselves.

See s. 3—Vexatious Proceedings Act 2014 (Vic).

Various kinds of orders can be made to restrict vexatious litigants

There are different orders that can be made, depending on the litigant's history and pattern of behaviour. Courts can now take into account legal proceedings from all over Australia when they are making a decision whether or not to grant the order.

VCAT or the courts can also make an extended order where a person has frequently commenced or conducted vexatious proceedings against a specified person, or in relation to a specific matter.

Litigation restraint orders

Courts (or tribunals) may make a litigation restraint order against a person who has a history of vexatious behaviour. There are 4 levels of litigation restraint orders:

  • limited litigation restraint order
  • extended litigation restraint order
  • general litigation restraint order (can only be made by the Supreme Court)
  • appeal restriction orders (restricts appeals and can only be made by the Supreme Court).

Limited litigation restraint orders

These litigation restraint orders are limited to a particular proceeding. They do not affect the person's right to apply or to proceed with other court proceedings.

A limited litigation restraint order only stays in force for as long as the proceeding to which the order relates unless the court orders that the order stays in force for longer than this.

See ss. 13, 14, 15—Vexatious Proceedings Act 2014 (Vic).

When a limited litigation order may be made

The court will make a limited litigation restraint order against a person who is a party to a proceeding if satisfied that:

  • the person has made 2 or more interlocutory applications in the proceeding, and
  • those interlocutory applications are vexatious applications.

See s. 11—Vexatious Proceedings Act 2014 (Vic).

How the court decides

When deciding whether to make the order the court may take into account:

  • any interlocutory application that the person has made
  • any order made by an Australian court against the person, including any:
    • litigation restraint order
    • acting in concert order
    • vexatious proceeding order
    • order striking out a vexatious application, or
  • any other matter that relates to the way in which that person has conducted litigation before.

See s. 11—Vexatious Proceedings Act 2014 (Vic).

Extended litigation restraint orders

An extended litigation order relating to an intervention order in either the Magistrates' Court or the Children's Court only relates to people and matters that are specified in the order. It does not prohibit the person against whom the order was made from beginning or continuing with proceedings:

  • in other courts or tribunals
  • that do not relate to intervention orders.

The order stays in force for the length of time specified in the order. This could include an order that the extended litigation order is extend indefinitely.

See ss. 26(4), 27—Vexatious Proceedings Act 2014 (Vic).

When an extended litigation order may be made

The Magistrates' Court or Children's Court may make an extended litigation restraint order against a person (about intervention order laws) if satisfied that the person has frequently commenced or conducted vexatious proceedings:

  • against a person, or
  • in relation to a matter.

The courts may make an extended litigation restraint order on their own motion.

See ss. 18, 19—Vexatious Proceedings Act 2014 (Vic).

What the extended litigation restraint order may do

If an extended litigation order is made against a person it may direct that the person must not (without permission from the court):

  • continue an intervention order proceeding in the Magistrates' Court or Children's Court, or
  • begin proceedings in the Magistrates' or Children's courts against the person(s) protected by the order.

See ss. 22(2), 23—Vexatious Proceedings Act 2014 (Vic).

General litigation restraint orders

These are the most serious restraint orders for vexatious litigants. An application for a general litigation restraint order can only be made by the Attorney General. A judge of the Supreme Court will make an order if they are satisfied that the person has persistently and without reasonable excuse commenced or conducted vexatious proceedings.

Note: The Supreme Court may decide to make an extended litigation restraint order instead of a general litigation restraint order if they are not satisfied that grounds for making the order have been made out.

The Supreme Court may also make a general litigation restraint order on its own motion.

If a general litigation restraint order is made

If a general litigation restraint order is made against a person, that person must not begin or continue any proceeding in any Victorian court or tribunal without leave from the Supreme Court or court or tribunal where the proceeding is being heard.

See ss. 28, 30—Vexatious Proceedings Act 2014 (Vic).

Orders against someone supporting a vexatious litigant

Orders can also be made that restrict a person who is acting together with (or in support of) a person who has had a litigation restraint order made against them. These orders can be made if the person who is supporting the vexatious litigant makes an application that, if it were made by the vexatious litigant, would contravene the terms of the order made against that vexatious litigant. These orders are called 'acting in concert' orders.

Orders can be made against these supporters on the same terms as the orders against the vexatious litigant.

See Part 5—Vexatious Proceedings Act 2014 (Vic).

Who can apply for a restraint order

The Attorney General may apply for a limited litigation restraint order, or if a court gives permission, anyone who has previously been forced to protect themselves from vexatious behaviour involving court applications for family violence intervention orders under, or anyone who has sufficient interest in the matter.

A court may grant leave to apply for a limited litigation restraint order if the court is satisfied that the application has merit, and making the application would not be an abuse of process.

Note: Only the Attorney General can apply for a general restraint order.

See ss. 16, 19, 28—Vexatious Proceedings Act 2014 (Vic).

Who has sufficient interest?

A person with sufficient interest could include a police officer, guardian or a family member who is seeking to apply for an intervention order on behalf of a person.

See s. 18(1)—Vexatious Proceedings Act 2014 (Vic).

Costs

If an order is made, the person who is declared to be a vexatious litigant will be responsible for the cost of the proceeding, if they are found not to be vexatious, each party has to bear their own costs.

The court could make exceptions to these orders if exceptional circumstances exist. If the applicant is found to have applied frivolously, vexatiously or in bad faith, the court may award costs against the applicant.

See s. 154—Family Violence Protection Act 2008 (Vic), s. 111—Personal Safety Intervention Orders Act 2010 (Vic) and s. 35—Vexatious Proceedings Act 2014 (Vic).

Appealing, varying or revoking a litigation restriction orders

Varying or revoking an order

It may be possible to have a litigation restraint order varied or revoked. The applicant will need to get leave (permission) from the court or tribunal that made the order. There is a presumption that the application will be heard on the basis of written submissions. The court or tribunal will make the order if they believe that it is in the interests of justice to do so.

See Part 9—Vexatious Proceedings Act 2014 (Vic).

Appeals

With leave of the Supreme Court, a person who has been issued with an order may appeal on a question of law. This also applies to anyone who wants to appeal a decision to refuse to make an order.

See s. 79—Vexatious Proceedings Act 2014 (Vic).

More information

Legislation

Vexatious Proceedings Act 2014 (Vic)

  • s. 3—defines a 'limited litigation restraint order', 'extended litigation restraint order', 'intervention order legislation', 'vexatious application' and 'vexatious proceeding'
  • s. 10—applying for limited litigation restraint orders
  • s. 11—when court or VCAT may make a limited litigation restraint order
  • s. 12—content of a limited litigation restraint order
  • s. 13—effect of a limited litigation restraint order
  • s. 16—applying for extended litigation restraint orders
  • s. 18—application for an extended litigation restraint order for IO legislation
  • s. 22(2)—content of extended litigation restraint order
  • s. 23—content of an extended litigation restraint order made in the Children's Court
  • s. 26—extended litigation restraint order does not affect certain proceedings
  • s. 27—duration of extended litigation restraint order
  • s 28—applying for a general litigation order
  • s. 29—when a general litigation restraint order can be made
  • s. 30—if a general litigation restraint order is made
  • s. 33—how long the general litigation restraint order lasts
  • s. 35(2)—VCAT or courts may order costs against the vexatious litigant
  • s. 79—appeal with leave of the Supreme Court on question of law
  • s. 82—how notice is to be given if Supreme Court gives leave to appeal
  • Part 5—acting in concert order
  • Part 6—appeal restriction orders
  • Part 9—variation or revocation
  • Part 10—appeals

See Vexatious Proceedings Act 2014 (Vic).

Family Violence Protection Act 2008 (FVPA)

  • s. 154—costs
  • s. 167—exception to restriction on publication

See Family Violence Protection Act 2008 (Vic).

Personal Safety Intervention Order Act 2010 (PIOA)

  • s. 111—costs
  • s. 123—restriction on publication of proceeding
  • s. 124—exception to restriction on publication

See Personal Safety Intervention Orders Act 2010 (Vic).

Reference

Victorian Government Solicitors

See Victorian Government Solicitor blog—Victoria reins in vexatious litigants.

For details about vexatious litigation law see the 2008 report from the Victorian Parliament Law Reform Committee:

Updated