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Wednesday, 29 April 2009

Vexatious litigants

Blogger and barrister Stephen Warne (see failure to call witnesses) writes The Australian Professional Liability Blog. It's a wealth of posts both entertaining and informative.

His blog brought to our attention the remarkable man Brian William Shaw. I don't dare say anything further about Mr Shaw for fear I'll be added to the long and distinguished list of people he's unsuccessfully sued. The history and merits of Mr Shaw's litigation are dealt with thoroughly in the 42-page judgment of Hansen J in Attorney General for the State of Victoria v Shaw [2007] VSC 148.

Victoria first brought in specific powers to deal with vexatious litigants back in 1928. Current provisions allow the Supreme Court to discontinue proceedings or refuse leave to commence proceedings to a person declared a vexatious litigant. Mr Shaw is one of only 15 people subject to such a declaration in the last 80 years.

On 4 December 2008, the Law Reform Committee of the Victorian Parliament tabled its Inquiry into Vexatious Litigants. The Committee recommended statutory authority for registrars to refuse to issue process they consider vexatious, and a right of appeal by the litigant to a judicial officer of that jurisdiction. It also recommended codifying courts' inherent right to permanently stay proceedings for abuse of process (articulated by the High Court in Jago v The District Court of NSW (1989) 168 CLR 23). The Committee said that further clarification of the DPP's ability to take over (and potentially discontinue) a private prosecution under the Public Prosecutions Act 1994 s 22(1)(b)(ii) is also necessary.

The report recommended amending the existing vexatious-litigant legislation to grant new powers called limited litigation orders to all courts and VCAT. It also recommended the Supreme Court, Chief Judge of the County Court, Chief Magistrate, and President of VCAT should have the power to make a wider extended litigation limitation order, but on the application of only the Attorney-General or Solicitor-General.

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