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VEXATIOUS PROCEEDINGS BILL 2014

         Vexatious Proceedings Bill 2014

                          Introduction Print


               EXPLANATORY MEMORANDUM


                                   General
The Vexatious Proceedings Bill 2014 introduces a new regime for the
management and prevention of vexatious litigation in Victorian courts and
tribunals. The Bill aims to improve the effectiveness of the justice system by
ensuring that unmeritorious litigation is disposed of at an early stage and that
persons are prevented from wasting court time with further unmeritorious
cases. This will allow court and judicial resources to be allocated to the
determination of meritorious cases, which will reduce delays in the court
system for other pending matters.
The Bill enables the Supreme Court, the County Court, the Magistrates' Court
and VCAT to make various types of "litigation restraint orders", which
increase in severity in accordance with a person's litigation history and
pattern of vexatious behaviour. The Children's Court is also given the power
to make litigation restraint orders, but only in relation to litigation conducted
under the intervention order legislation. The tiered approach to litigation
restraint orders promotes early intervention and aims to provide flexibility for
the Courts and VCAT to adopt a proportionate response to a person's
conduct.
The Bill draws upon recommendations made by the Victorian Parliamentary
Law Reform Committee in 2008, and also implements aspects of a Model
Bill approved in 2004 by the former Standing Committee of Attorneys-
General (Model Bill).
The Bill repeals the vexatious litigation regimes in the Family Violence
Protection Act 2008 and the Personal Safety Intervention Orders Act
2010 and re-enacts those regimes in the Bill to align those regimes with the
new regime established under the Bill.




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Clause Notes PART 1--PRELIMINARY Clause 1 sets out the main purpose of the Bill, which is to reform and consolidate the law relating to vexatious proceedings in courts and tribunals in a way that balances individual rights of access to the courts with the public interest in an efficient and effective justice system and promotes uniformity with other jurisdictions in the management and prevention of vexatious behaviour. Clause 2 provides that the Bill commences on a day or days to be proclaimed. The Bill, or provisions of the Bill, will commence on 31 October 2014 if not proclaimed before that date. Clause 3 defines the key words and phrases used in the Bill, including application for leave to proceed, Australian court or tribunal, Court, extended litigation restraint order, general litigation restraint order, intervention order legislation, limited litigation restraint order, litigation restraint order, proceeding, vexatious application, vexatious proceeding, vexatious proceeding order and Victorian court or tribunal. A key concept introduced in the Bill is a litigation restraint order, which means an extended litigation restraint order, a general litigation restraint order or a limited litigation restraint order. An extended litigation restraint order means an order made by the Supreme Court, the County Court, the Magistrates' Court or VCAT under clause 17 of the Bill, or, in relation to intervention order legislation, an order made by the Magistrates' Court or the Children's Court under clause 19 of the Bill. In the Bill, intervention order legislation means the Crimes (Family Violence) Act 1987 as in force immediately before its repeal, the Family Violence Protection Act 2008, the Personal Safety Intervention Orders Act 2010, and the Stalking Intervention Orders Act 2008 as in force immediately before its repeal. A general litigation restraint order and a limited litigation restraint order refer to orders made under clauses 29 and 11 of the Bill respectively. A general litigation restraint order can only be made by the Supreme Court, while a limited litigation restraint order can be made by the Supreme Court, the County Court, the Magistrates' Court or VCAT. 2

 


 

The term Court means the Supreme Court, the County Court, the Magistrates' Court, and, in relation to an order under the Bill that relates to the intervention order legislation, the Children's Court. This term is used in the Bill to refer to the Victorian courts which are able to make litigation restraint orders and other specified orders under the Bill. The term can be distinguished from the broader concept of a Victorian court or tribunal, which means the Supreme Court, the County Court, the Magistrates' Court, the Children's Court, VCAT or VOCAT. This term is used to refer to all Victorian courts and tribunals to which the Bill applies (see further clause 6). The definition of Victorian court or tribunal does not include the Coroners Court, which means that the Bill does not apply to the Coroners Court. A proceeding means any matter in an Australian court or tribunal, whether civil or criminal. This includes interlocutory applications and other incidental proceedings as well as any appeal, review or other challenge, including an application for judicial review. The definition is not limited to appeals from final decisions and includes appeals, reviews and challenges of both final and interlocutory decisions. This overrides existing case law that interlocutory applications and appeals from interlocutory decisions do not constitute the institution of proceedings (see Attorney-General v Weston [2004] VSC 314). A broad definition is included to ensure that a Court or VCAT can take into account a person's full litigation history when deciding whether to make a litigation restraint order under the Bill, including litigation conducted in other Australian jurisdictions. The definition also ensures that an extended litigation restraint order or general litigation restraint order can restrain all forms of litigation, including interlocutory applications and appeals. The definition is consistent with the definition used in the Model Bill. The definitions of vexatious proceeding and vexatious application are central to the Bill. A vexatious proceeding is defined broadly and includes a proceeding that is an abuse of the process of a court or tribunal; a proceeding commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose; a proceeding commenced or pursued without reasonable ground; and a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. This definition is modelled on the definition 3

 


 

used in the Model Bill, which promotes uniformity with other jurisdictions. A similar definition is also included for vexatious application. These definitions expand on the position at common law to ensure that a Court or VCAT can consider the manner in which an interlocutory application or proceeding is conducted when deciding whether a particular application or proceeding is vexatious. Clause 4 defines acting in concert for the purposes of the Bill. A person will be acting in concert with another person if the first mentioned person acts on behalf of, for the predominant benefit of, on the instructions of, or in collusion with the other person. However, this does not apply to a legal practitioner who is acting for the person, a litigation guardian of the person, a professional advocate within the meaning of section 62(8) of the Victorian Civil and Administrative Tribunal Act 1998, or any other person who is authorised or required by law to act on behalf of the person. This distinguishes between persons who are acting on another person's behalf for a proper reason authorised by law and persons who are acting on another person's behalf for an improper purpose, such as to circumvent a litigation restraint order that has been made. Clause 5 defines interlocutory application for the purposes of the Bill. An interlocutory application means any process by which an interlocutory proceeding is commenced in an Australian court or tribunal, including a subpoena. However, an application under the Family Violence Protection Act 2008 in respect of which the court makes an interim order under section 53 or 101 of that Act, or an interim extension order under section 107 of that Act, is not an interlocutory application for the purposes of the Bill. A similar exception is included in relation to interim orders and interim extension orders made under the Personal Safety Intervention Orders Act 2010. These exceptions are included for the avoidance of doubt as applications which result in interim orders and interim extension orders under the Family Violence Protection Act 2008 or Personal Safety Intervention Orders Act 2010 are not applications that commence interlocutory proceedings. 4

 


 

Clause 6 provides that the Bill applies to all civil and criminal proceedings in a Victorian court or tribunal. The powers conferred by the Bill are in addition to any existing powers of a Victorian court or tribunal to control its own proceedings, for example any powers in relation to contempt of court or summary dismissal of an unmeritorious proceeding. The Bill does not prevent a court or tribunal from dismissing a proceeding or taking other action under these powers. Clause 7 provides that to the extent that there is any inconsistency, the Bill will prevail over any statutory jurisdiction and any other powers of a Victorian court or tribunal arising or derived from the common law or under any other Act, rule of court, practice note or practice direction. Clause 8 provides that the Bill does not limit the Supreme Court's inherent or implied jurisdiction or the implied jurisdiction of the County Court, the Magistrates' Court or the Children's Court. Clause 9 requires VCAT to be constituted by a member who is an Australian lawyer within the meaning of the Legal Profession Act 2004 when exercising any of the powers conferred on VCAT under the Bill. PART 2--LIMITED LITIGATION RESTRAINT ORDERS Clause 10 enables the Attorney-General to apply to a Court or VCAT for a limited litigation restraint order against a person who is a party to a proceeding in that Court or in VCAT. A person against whom a vexatious application has been made or a person with a sufficient interest in the matter can also apply for an order if they have obtained leave of the Court in which the proceeding is being heard, or leave of VCAT if the proceeding is being heard in VCAT. A person with a sufficient interest in the matter may include a party to the proceeding who is not a person against whom a vexatious application has been made. The Court or VCAT is able to grant leave to such persons if satisfied that there is merit in the application and that the making of the application would not be an abuse of process. 5

 


 

Clause 11 enables a Court or VCAT to make a limited litigation restraint order against a person who is a party to a proceeding, either on its own motion or on an application under clause 10. A reference to Court in this clause means the Supreme Court, the County Court or the Magistrates' Court. The limited litigation restraint order can only be made if the Court or VCAT is satisfied that the person has made two or more vexatious applications in the proceeding. Once satisfied that this threshold is met, the Court or VCAT can take into account any matter it considers relevant in determining whether to exercise its discretion to make an order. The clause provides guidance as to some of the matters that the Court or VCAT may consider, including any previous interlocutory applications made by the person in an Australian court or tribunal, any orders made against the person by an Australian court or tribunal, and any other matter relating to the way in which the person has conducted litigation. The Court or VCAT can consider these matters regardless of whether they relate to an interlocutory application made or a proceeding commenced or conducted before, on or after the commencement of this clause, which ensures that past litigation conduct is able to be taken into account. Clause 12 sets out the matters that may be included in a limited litigation restraint order. The order may direct that the person subject to the order must not make an interlocutory application or specified type of interlocutory application in the proceeding, continue an interlocutory application or specified type of interlocutory application in the proceeding, or both, without leave of the Court or VCAT. The Court or VCAT may include in the limited litigation restraint order any other direction or order in relation to the proceeding that it considers appropriate, which ensures that the Court or VCAT can tailor the order to the circumstances of the proceeding. This may include a direction or order which allows the person to make or continue a specified type of interlocutory application, for example an interlocutory application in relation to discovery or other interlocutory applications that may routinely be required in the course of a proceeding. 6

 


 

Clause 13 sets out the effect of a limited litigation restraint order on interlocutory applications in the proceeding to which the order relates (that is, interlocutory applications that, if made or continued, would contravene the terms of the order). Once a limited litigation restraint order is made, any existing interlocutory application in the proceeding is stayed and any new interlocutory application made by the person in contravention of the order is of no effect. This clause is subject to the terms of the order, which may provide that specified interlocutory applications can be made or continued (see clause 12). This ensures that no additional steps are required to be taken in order to stay or dismiss an interlocutory application that contravenes the terms of the limited litigation restraint order. Clause 14 provides that a limited litigation restraint order does not affect specified rights of the person subject to the order, including that person's right to make or continue an interlocutory application in a proceeding other than the proceeding in which the order was made, or to commence or continue another proceeding in a Victorian court or tribunal. Clause 15 provides that a limited litigation restraint order remains in force for the duration of the proceeding in which it is made. The Court or VCAT may order that the limited litigation restraint order remains in force for a different period of time. PART 3--EXTENDED LITIGATION RESTRAINT ORDERS Clause 16 enables the Attorney-General to apply to a Court or VCAT for an extended litigation restraint order against a person. A person against whom a vexatious proceeding has been commenced or conducted or a person with a sufficient interest in the matter can also apply for an order if they have obtained leave of the Court in which the order is sought or, if the order is sought in VCAT, with leave of VCAT. The grounds for granting leave are the same as the grounds specified in clause 10. Clause 17 enables a Court or VCAT to make an extended litigation restraint order against a person, either on its own motion or on an application under clause 16. A reference to Court in this clause means the Supreme Court, the County Court or the Magistrates' Court. The order can only be made if the Court or VCAT is satisfied that the person has frequently commenced or 7

 


 

conducted vexatious proceedings against a person or other entity or in relation to a matter. The term 'matter' is not defined in the Bill but is intended to have its ordinary meaning. Similarly, the term 'frequently' is not defined and whether this threshold is satisfied will depend on the circumstances of the case. In determining whether it is satisfied that this threshold is met, the Court or VCAT can take into account any matter it considers relevant. The clause provides guidance as to some of the matters that may be considered, which are similar to the matters described in clause 11. Clause 18 enables the Attorney-General to apply to the Magistrates' Court or the Children's Court for an extended litigation restraint order that relates to intervention order legislation against a person. Similarly to clause 16, other specified persons are also able to apply for an order, with leave. Clause 19 enables the Magistrates' Court or Children's Court to make an extended litigation restraint order that relates to intervention order legislation against a person, either on its own motion or on an application under clause 18. The order can only be made if the Magistrates' Court or Children's Court is satisfied that the person has frequently commenced or conducted vexatious proceedings under intervention order legislation against a person or in relation to a matter. This is similar to an order under clause 17 except that the vexatious proceedings must have been commenced or conducted under intervention order legislation. In determining whether it is satisfied that this threshold is met, the Magistrates' Court or Children's Court can take into account any matter it considers relevant. Section 154 of the Family Violence Protection Act 2008 (as amended by clause 122) and section 111 of the Personal Safety Intervention Orders Act 2010 (as amended by clause 133) set out the costs rules for a proceeding for an order under this clause. Clause 20 sets out the matters that may be included in an extended litigation restraint order that is made by the Supreme Court. The order may direct that the person subject to the order must not, for the period of time specified by the Supreme Court, continue a proceeding or commence a proceeding (or both) in a Victorian court or tribunal against a person or other entity named in the order, or in respect of a matter described in the 8

 


 

order, without leave. The extended litigation restraint order may specify that leave to continue or commence the proceeding should be sought from the Supreme Court or the Victorian court or tribunal in which the relevant proceeding is being, or would be, heard. This allows the Supreme Court to consider whether it is more appropriate in the circumstances for the Supreme Court to hear and determine all future applications for leave to proceed or whether such applications should be heard and determined in other jurisdictions. The Supreme Court may include in the extended litigation restraint order any other direction or order that it considers appropriate, including a direction or order which allows the person to commence or continue a specified proceeding in a Victorian court or tribunal. This allows the Supreme Court to tailor the order to the circumstances of the case, for example by allowing the person subject to the order to commence proceedings in a Victorian court or tribunal if the person is represented by a legal practitioner. Clause 21 sets out the matters that may be included in an extended litigation restraint order that is made by the County Court. The order may direct that the person subject to the order must not, for the period of time specified by the County Court, continue a proceeding or commence a proceeding (or both) in the County Court against a person or other entity named in the order, or in respect of a matter described in the order, without leave of the County Court. Although similar to an extended litigation restraint order made by the Supreme Court (see clause 20), an order made by the County Court is only able to restrain the commencement or continuation of proceedings in the County Court and cannot restrain the commencement or continuation of proceedings in other Victorian courts or tribunals. The clause also allows the County Court to include in the extended litigation restraint order any other direction or order that it considers appropriate. However, unlike the Supreme Court, the County Court can only include other directions or orders that relate to a proceeding or the commencement of a proceeding in the County Court. 9

 


 

Clause 22 sets out the matters that may be included in an extended litigation restraint order that is made by the Magistrates' Court. An extended litigation restraint order made against a person under clause 17 may include similar matters to the matters that may be included in an order made by the County Court (see clause 21). An extended litigation restraint order that relates to intervention order legislation made against a person under clause 19 may direct that the person subject to the order must not, for the period specified by the Magistrates' Court, commence a proceeding or continue a proceeding (or both) in the Magistrates' Court or the Children's Court under intervention order legislation either against a person protected by the extended litigation restraint order and, if the person is a parent of a child, his or her child, or in respect of a matter described in the order, without leave of the Magistrates' Court. The Magistrates' Court may include in an extended litigation restraint order that relates to intervention order legislation any other direction or order that it considers appropriate in relation to a proceeding or the commencement of a proceeding in either the Magistrates' Court or the Children's Court. Clause 23 sets out the matters that may be included in an extended litigation restraint order that relates to intervention order legislation that is made by the Children's Court. The order may include similar matters to the matters that may be included in an extended litigation restraint order that relates to intervention order legislation made by the Magistrates' Court (see clause 22). Clause 24 sets out the matters that may be included in an extended litigation restraint order that is made by VCAT. An order made by VCAT may include similar matters to the matters that may be included in an order made by the County Court (see clause 21). Clause 25 sets out the effect of an extended litigation restraint order on proceedings to which the order relates (that is, proceedings that, if continued or commenced, would contravene the terms of the order). Once an extended litigation restraint order is made, any existing proceeding to which the order relates is stayed and any new proceeding commenced by the person in contravention of the order is of no effect. This clause is subject to the terms of 10

 


 

the order, which may provide that specified proceedings can be commenced or continued (see clauses 20 to 24). Clause 26 provides that an extended litigation restraint order does not affect specified rights of the person subject to the order. An extended litigation restraint order made by the Supreme Court does not affect a person's right to continue or commence a proceeding in a Victorian court or tribunal against a person or other entity, or in respect of a matter, that is not specified in the order. An extended litigation restraint order made by the County Court, the Magistrates' Court (other than an extended litigation restraint order that relates to intervention order legislation) or VCAT only restrains the commencement or continuation of proceedings in the jurisdiction that made the order. The order does not affect a person's right to commence or continue a proceeding in another Victorian court or tribunal. An extended litigation restraint order that relates to intervention order legislation made by the Magistrates' Court or the Children's Court does not affect a person's right to commence or continue a proceeding against a person or the child of a person, or in respect of a matter, that is not specified in the order. The order also does not affect a person's right to commence or continue a proceeding in the Magistrates' Court or the Children's Court under legislation other than the intervention order legislation, or to commence or continue a proceeding in another Victorian court or tribunal. Clause 27 provides that an extended litigation restraint order remains in force for the period of time specified in the order, which may be indefinitely. This ensures that the Court or VCAT can tailor the duration of the order to what is reasonably required to prevent vexatious litigation in the circumstances of the case. The Court or VCAT may also extend the duration of the order if it considers it is in the interests of justice to do so. 11

 


 

PART 4--GENERAL LITIGATION RESTRAINT ORDERS Clause 28 enables the Attorney-General to apply to the Supreme Court for a general litigation restraint order against a person. Unlike limited litigation restraint orders and extended litigation restraint orders, other parties and persons with a sufficient interest in the matter are unable to apply for a general litigation restraint order. This reflects the seriousness of the order (see further clause 30). Clause 29 enables the Supreme Court to make a general litigation restraint order against a person, either on its own motion or on an application by the Attorney-General under clause 28. The Supreme Court is required to be constituted by a Judge of the Court when making the order. The order can only be made if the Supreme Court is satisfied that the person has persistently and without reasonable grounds commenced or conducted vexatious proceedings. "Persistently" is not defined in the Bill but is intended to connote a higher threshold test than "frequently" (as used in clauses 17 and 19 in relation to extended litigation restraint orders). Whether the threshold is satisfied will depend on the circumstances of the case. In determining whether it is satisfied that this threshold is met, the Supreme Court can take into account any matter it considers relevant. The clause provides guidance as to some of the matters that may be considered, which are the same as the matters set out in clause 17. Clause 30 sets out the matters that may be included in a general litigation restraint order. The order may direct that the person subject to the order must not, for the period of time specified by the Supreme Court, continue a proceeding or commence a proceeding (or both) in a Victorian court or tribunal, without leave. The order may specify that leave to continue or commence the proceeding should be sought from the Supreme Court or the Victorian court or tribunal in which the relevant proceeding is being, or would be, heard. The Supreme Court can also tailor the order to the circumstances of the case. A general litigation restraint order differs from an extended litigation restraint order made by the Supreme Court (see clause 20) in that it can restrain the commencement or continuation of all proceedings in a Victorian court or tribunal, 12

 


 

rather than restraining proceedings against a specified person or other entity or in respect of a specified matter. Clause 31 allows the Supreme Court to make an extended litigation restraint order against a person if, on the hearing of an application for a general litigation restraint order under clause 28, the Supreme Court is not satisfied that the threshold test for a general litigation restraint order (see clause 29) is met but is satisfied that the threshold test for an extended litigation restraint order (see clause 17) is met. An order made under this clause can be made on the same terms as an extended litigation restraint order made by the Supreme Court under clause 20. Clause 32 sets out the effect of a general litigation restraint order on proceedings to which the order relates. This clause is in similar terms to clause 25. Clause 33 provides for the duration and extension of a general litigation restraint order. This clause is in similar terms to clause 27. PART 5--ACTING IN CONCERT ORDERS Clause 34 allows specified persons to apply to a Court or VCAT for an order against another person who is acting in concert with a person who is subject to a litigation restraint order. Clause 35 enables a Court or VCAT to make an order against a person who is acting in concert with a person who is subject to a litigation restraint order, either on its own motion or on an application under clause 34, and sets out the matters of which the Court or VCAT must be satisfied before making such an order. The clause also sets out the matters that an acting in concert order may specify, including that the person acting in concert is subject to a limited litigation restraint order or an extended litigation restraint order on the same terms as the person with whom the person is acting in concert or on any of the terms that the Court or VCAT may order under Part 3. The clause provides that an acting in concert order made against a person must not direct that the person is subject to a general litigation restraint order but that otherwise such an order may direct any other thing that the Court or VCAT considers appropriate in the circumstances. This does not prevent a general litigation restraint order being made against the person under Part 4. 13

 


 

Clause 36 enables the Magistrates' Court or the Children's Court to make an order against a person who is acting in concert with a person who is subject to an extended litigation restraint order that relates to intervention order legislation, either on its own motion or on an application made under clause 34. This clause is similar to clause 35 in that it sets out the matters of which the Magistrates' Court or the Children's Court must be satisfied before making the order. It also sets out the matters that an acting in concert order may specify, including that the person acting in concert is subject to an extended litigation restraint order that relates to intervention order legislation on the same terms as the person with whom the person is acting in concert or on any of the terms that the Magistrates' Court or the Children's Court may order under clause 22(2) or 23(1). The clause also provides that an acting in concert order that relates to intervention order legislation may direct any other thing that the Magistrates' Court or the Children's Court considers appropriate in the circumstances. Similarly to clause 19, section 154 of the Family Violence Protection Act 2008 (as amended by clause 122) and section 111 of the Personal Safety Intervention Orders Act 2010 (as amended by clause 133) set out the costs rules for a proceeding for an acting in concert order under this clause. PART 6--APPEAL RESTRICTION ORDERS Clause 37 enables the Supreme Court to make an appeal restriction order against a person. The Supreme Court can only make the order if satisfied that the person has frequently made applications for leave to proceed that are vexatious applications and that it is in the interests of justice to make the order. An appeal restriction order may direct that, for the period specified by the Supreme Court, the person cannot appeal a decision by any Victorian court or tribunal to refuse leave to make or continue an interlocutory application or to commence or continue a proceeding. The clause also provides that an appeal restriction order may be made despite the appeal provisions set out in Part 10 of the Bill and the terms of the litigation restraint order. This means that an appeal restriction order will restrain appeals from decisions refusing leave to make or continue an interlocutory application 14

 


 

or to commence or continue a proceeding, notwithstanding that an application for leave to appeal would otherwise be able to be made in respect of such decisions. The order does not affect the rights of a person to make an application for leave to appeal from other decisions under the Bill (see Part 10). Clause 38 enables the County Court, the Magistrates' Court or VCAT to make an appeal restriction order. The clause is similar to clause 37 in that it sets out the matters of which the Court or VCAT must be satisfied before making such an order and provides that an order may be made despite anything to the contrary in Part 10 and despite the terms of the litigation restraint order. An appeal restriction order made under this clause may direct that, for the period specified in the order, the person cannot appeal a decision by the relevant court or VCAT to refuse leave to make or continue an interlocutory application or to commence or continue a proceeding in the court or VCAT. Unlike an appeal restriction order made by the Supreme Court, an order made by the County Court, the Magistrates' Court or VCAT is only able to restrain appeals from the jurisdiction that made the order. Clause 39 enables the Magistrates' Court or the Children's Court to make an appeal restriction order against a person. This clause is in similar terms to clause 38. Clause 40 sets out the effect of an appeal restriction order on applications for leave to appeal to which the order relates (that is, applications for leave to appeal from a decision to refuse leave to make or continue an interlocutory application or to commence or continue a proceeding). Once an appeal restriction order is made, any existing application for leave to appeal to which the order relates is stayed and any new application for leave to appeal made by the person in contravention of the order is of no effect. Clause 41 provides that an appeal restriction order does not affect specified rights of the person subject to the order, including that person's right to make or continue another type of interlocutory application, or to commence or continue a proceeding (other than the appeal), in a Victorian court or tribunal. Clause 42 provides for the duration and extension of an appeal restriction order. This clause is in similar terms to clause 27. 15

 


 

PART 7--GENERAL MATTERS RELATING TO ORDERS Division 1--Applications for orders Clause 43 provides for the Attorney-General to request documents from a Victorian court or tribunal for the purpose of deciding whether to apply for a litigation restraint order against a person. The clause also allows, but does not require, the Victorian court or tribunal to provide to the Attorney-General a copy of the requested documents. Clause 44 requires the principal registrar of the Magistrates' Court or the Children's Court to cause a copy of an application under clause 18 for an extended litigation restraint order that relates to intervention order legislation to be given to specified persons. This clause overrides the normal processes regarding notification and service pursuant to which the applicant for an order would ordinarily be required to cause a copy of the application to be given to relevant persons. The clause ensures that a person is not breaching the terms of an intervention order that may be in place and protects victims of family violence, prohibited behaviour and stalking. Division 2--Making of orders Clause 45 requires a Court or VCAT to hear a person, or give the person an opportunity to be heard, before making specified orders in relation to the person. The clause also requires the Magistrates' Court and Children's Court to hear the person who would be protected by an order before making an extended litigation restraint order, an acting in concert order or an appeal restriction order that relates to intervention order legislation. The clause does not require an oral hearing and expressly allows the Court or VCAT to specify that submissions be made in writing. Clause 46 requires an extended litigation restraint order that relates to intervention order legislation made by the Magistrates' Court or Children's Court to include or be accompanied by a statement of reasons for the decision. 16

 


 

Division 3--Copies of orders Clause 47 requires a Court or VCAT to ensure that a copy of specified orders is given to the Attorney-General. A copy of an order made by VCAT is not required to include a statement of reasons. This is despite section 117(6) of the Victorian Civil and Administrative Tribunal Act 1998, which provides that the reasons given by VCAT for an order it makes in a proceeding form part of the order. Clause 48 requires specified court and tribunal officers to cause a copy of litigation restraint orders, acting in concert orders and appeal restriction orders to be given to other specified Victorian courts and tribunals. This clause is necessary to ensure that relevant Victorian courts and tribunals are aware of the existence of these orders and can prevent the circumvention of the order. Clause 49 requires the principal registrar of the Magistrates' Court or Children's Court to cause a copy of specified orders that relate to intervention order legislation to be given to the person subject to the order, the person protected by the order, and the applicant for the order. Similarly to clause 44, this clause is necessary to override the normal processes regarding notification and service. PART 8--APPLICATIONS FOR LEAVE TO PROCEED Division 1--Application for leave to proceed under limited litigation restraint order Clause 50 enables a person subject to a limited litigation restraint order to apply to the Court that made the order or to VCAT, if VCAT made the order, for leave to make or continue an interlocutory application in the proceeding. The application for leave can be made notwithstanding that the terms of the limited litigation restraint order would otherwise restrain the person from making the application. Clause 51 sets out the matters of which a Court or VCAT must be satisfied to grant leave on an application under clause 50. The Court or VCAT can only grant leave if satisfied that the interlocutory application that is proposed to be made or continued is not a vexatious application and that there are reasonable grounds for 17

 


 

the application. If the Court or VCAT is not satisfied as to both matters, the application for leave will be dismissed. Division 2--Application for leave to proceed under extended litigation restraint order Clause 52 enables a person subject to an extended litigation restraint order to apply to a Victorian court or tribunal for leave to commence or continue a proceeding against a person or other entity protected by the order (and in the case of an extended litigation restraint order that relates to intervention order legislation, against the child of a person protected by the order) or in respect of a matter described in the order. The application for leave can be made notwithstanding that the terms of the extended litigation restraint order would otherwise restrain the person from making the application. The leave application must generally be made to the Court that made the order, or to VCAT, if VCAT made the order. However, if the extended litigation restraint order was made by the Supreme Court, the leave application must be made to the Victorian court or tribunal that would hear the proceeding to which the application for leave relates, unless the terms of the order otherwise requires the Supreme Court to hear and determine the leave application (see clause 20). Clause 53 sets out the matters of which a Victorian court or tribunal must be satisfied to grant leave on an application under clause 52. This clause is similar to clause 51 in that it provides for the Victorian court or tribunal to grant leave only if satisfied that the proceeding that is proposed to be commenced or continued is not a vexatious proceeding and that there are reasonable grounds for the proceeding. Division 3--Application for leave to proceed under general litigation restraint order Clause 54 enables a person subject to a general litigation restraint order to apply to a Victorian court or tribunal for leave to commence or continue a proceeding. The application for leave can be made notwithstanding that the terms of the general litigation restraint order would otherwise restrain the person from making the application. The leave application must generally be made to the Victorian court or tribunal that would hear the proceeding to 18

 


 

which the application for leave relates, unless the terms of the order otherwise requires the Supreme Court to hear and determine the leave application (see clause 30). Clause 55 sets out the matters of which a Victorian court or tribunal must be satisfied to grant leave on an application under clause 54. The matters are the same as the matters referred to in clause 53. Division 4--General matters relating to applications for leave to proceed Clause 56 requires a person who makes an application for leave to proceed to disclose specified matters to the Victorian court or tribunal in which the application is made, including an explanation as to how the application is materially different to a previous application for leave to proceed made by the person and all other material facts known to the applicant, whether supportive of or adverse to the application. This disclosure ensures that the Victorian court or tribunal considering the application for leave to proceed is aware of the applicant's past litigation conduct and prior attempts to seek leave to bring further litigation. Clause 57 allows specified court and tribunal officers to refuse to accept an application for leave to proceed if the officer is not satisfied that the application is materially different to a previous application made by the applicant. The Victorian court or tribunal may direct the officer to accept the application. Clause 58 allows a Victorian court or tribunal to dismiss an application for leave to proceed if it is not satisfied that the application is materially different to a previous application made by the applicant. This ensures that a person is unable to bring multiple applications for leave to proceed that are not materially different. Clause 59 prevents an applicant for leave to proceed from giving notice of the application without a direction or order of a Victorian court or tribunal. This clause overrides the normal processes regarding notification and service pursuant to which the applicant would ordinarily be required to cause a copy of the application to be given to relevant persons. This ensures that relevant persons are not required to consider or contest an application for leave to proceed which the Victorian court or tribunal considers, on the basis of the leave application and the 19

 


 

material disclosed under clause 56, should be dismissed. Relevant persons will only be notified if the Victorian court or tribunal is proposing to grant leave to the applicant (see further clauses 60 and 61). Clause 60 requires a Victorian court or tribunal, if it considers that an application for leave to proceed should proceed, to direct the applicant (other than an applicant for leave to proceed under an extended litigation restraint order that relates to intervention order legislation) to give notice of the application to specified persons. The notice given under this clause must include a copy of the application for leave to proceed and must state that the person receiving notice is entitled to make submissions in relation to the application. A Victorian court or tribunal may also make any other order in relation to notification that it considers appropriate, for example, extend the notice requirements to additional persons. Clause 61 requires the Magistrates' Court or the Children's Court, if it considers that an application for leave to proceed under an extended litigation restraint order that relates to intervention order legislation should proceed, to direct the principal registrar to cause notice of the application to be given to specified persons. Notice given under this clause must include the same matters as the matters that must be included pursuant to clause 60. Clause 62 provides for a person who has been given notice of an application for leave to proceed under clause 60 or 61 to be heard in relation to the application. The clause does not require an oral hearing and expressly allows a Victorian court or tribunal to direct that submissions be made in writing. Clause 63 creates a presumption that an application for leave to proceed will be determined 'on the papers' (that is, on the basis of written submissions and without the appearance of the applicant or any other person notified of the application). Notwithstanding this presumption, a Victorian court or tribunal may conduct an oral hearing if it considers that there are exceptional circumstances and it is appropriate to do so in the interests of justice. An oral hearing may be held regardless of whether written submissions have been made or whether the written submissions establish the matters required for the granting of leave or the dismissal of the application. 20

 


 

Clause 64 allows a Victorian court or tribunal to impose conditions on the granting of an application for leave to proceed. PART 9--VARIATION OR REVOCATION OF LITIGATION RESTRAINT ORDER Division 1--Court or VCAT may vary or revoke order Clause 65 enables a person subject to a litigation restraint order to apply for the variation or revocation of the order to the Court that made the order or to VCAT, if VCAT made the order, with leave. The application for leave can be made notwithstanding that the terms of the litigation restraint order would otherwise restrain the person from making the application. Clause 66 prevents a person who applies for leave to make an application for the variation or revocation of a litigation restraint order from giving notice of the leave application without an order from a Court or VCAT. The clause also prevents an applicant for variation or revocation of a litigation restraint order from giving notice of the application without a direction or order of a Court or VCAT. This clause is in similar terms to clause 59. Clause 67 requires a Court or VCAT, if it considers that an application to vary or revoke a litigation restraint order should proceed, to direct the applicant (other than an applicant for the variation or revocation of an extended litigation restraint order that relates to intervention order legislation) to give notice of the application to specified persons. This clause is similar to clause 60 in that it sets out the matters that must be included in the notice and allows a Court or VCAT to make any other order in relation to notification that it considers appropriate. Clause 68 requires the Magistrates' Court or the Children's Court, if it considers that an application to vary or revoke an extended litigation restraint order that relates to intervention order legislation should proceed, to direct the principal registrar to cause notice of the application to be given to specified persons. Notice given under this clause must include the same matters as the matters that must be included pursuant to clause 67. Clause 69 allows a Court or VCAT to vary or revoke a litigation restraint order, either on its own motion or on an application under clause 65, if it considers it is in the interests of justice to do so. 21

 


 

Clause 70 provides for a person who has been given notice of an application to vary or revoke a litigation restraint order under clause 67 or 68 to be heard in relation to the application. This clause is in similar terms to clause 62. Clause 71 creates a presumption that an application to vary or revoke a litigation restraint order will be determined on the papers and sets out the circumstances in which a Court or VCAT may conduct an oral hearing. These circumstances are similar to the circumstances set out in clause 63. Clause 72 requires a Court or VCAT to ensure that a copy of an order varying or revoking a litigation restraint order is given to the Attorney-General. Similarly to clause 47, a copy of an order made by VCAT is not required to include a statement of reasons. Clause 73 requires specified court and tribunal officers to cause a copy of an order varying or revoking a litigation restraint order to be given to other specified Victorian courts and tribunals. Division 2--Variation or revocation application prevention orders Clause 74 enables a Court or VCAT to make a variation or revocation application prevention order in relation to a person who is subject to a litigation restraint order. The Magistrates' Court and Children's Court may also make an order in respect of a person who is subject to an extended litigation restraint order that relates to intervention order legislation. The clause sets out the matters of which the Court or VCAT must be satisfied before making such an order and provides that an order can only be made by the Court that made the litigation restraint order to which the person is subject or by VCAT, if VCAT made the order. A variation or revocation application prevention order may direct that the person subject to the order must not, for the period specified by the Court or VCAT, continue an application for leave to vary or revoke a litigation restraint order, apply for leave to vary or revoke a litigation restraint order, or both. 22

 


 

Clause 75 sets out the effect of a variation or revocation application prevention order on applications to which the order relates (that is, applications for leave to vary or revoke a litigation restraint order). Once the variation or revocation application prevention order is made, any existing application to which the order relates is stayed and any new application made by the person in contravention of the order is of no effect. Clause 76 provides that a variation or revocation application prevention order does not affect specified rights of the person subject to the order, including that person's right to make or continue another type of interlocutory application or to commence or continue a proceeding in a Victorian court or tribunal. Clause 77 provides for the duration and extension of a variation or revocation application prevention order. This clause is in similar terms to clause 27. PART 10--APPEALS Clause 78 provides that Part 10 applies despite anything to the contrary in a litigation restraint order. This means that a person is able to make an application for leave to appeal, notwithstanding that the terms of the litigation restraint order would otherwise restrain such an application. Clause 79 allows a person to appeal, on a question of law, specified decisions of a Victorian court or tribunal made under the Bill. An appeal may only be brought with leave of the Supreme Court. Clause 80 prevents an applicant for leave to appeal from giving notice of the application without a direction or order of the Supreme Court. This clause is in similar terms to clause 59. Clause 81 requires the Supreme Court, if it considers that an application for leave to appeal (other than an application for leave to appeal a decision that relates to intervention order legislation) should proceed, to direct the applicant to give notice of the application to specified persons. The persons to whom notice must be given depends on the decision which is sought to be appealed. This clause is similar to clause 60 in that it sets out the matters that must be included in the notice and allows the Supreme 23

 


 

Court to make any other order in relation to notification that it considers appropriate. Clause 82 requires the Supreme Court, if it considers that an application for leave to appeal a decision that relates to intervention order legislation should proceed, to direct the Prothonotary to cause notice of the application to be given to specified persons. This clause is in similar terms to clause 81. Clause 83 provides for a person who has been given notice of an application for leave to appeal under clause 81 or 82 to be heard in relation to the application. This clause is in similar terms to clause 62. Clause 84 creates a presumption that an application for leave to appeal will be determined on the papers and sets out the circumstances in which the Supreme Court may conduct an oral hearing. These circumstances are similar to the circumstances set out in clause 63. PART 11--MISCELLANEOUS PROVISIONS Clause 85 requires the Attorney-General to cause a copy of an order given to the Attorney-General under the Bill (see clauses 47 and 72) to be published in the Government Gazette, and allows the Attorney-General to publish the details of an order in another way. The clause also allows the Attorney-General, at his or her discretion, to remove the name of a person or other entity protected by an order prior to publication. However, in the case of an order that relates to intervention order legislation, the order must have removed from it the name of a person protected by the order, including a child of a person protected by the order, unless the Court has made an order authorising publication (see clause 86 below). Clause 86 allows the Magistrates' Court or the Children's Court, when making an order under the Bill that relates to intervention order legislation, to specify that the name of the person protected by the order, or the name of his or her child, may be published under clause 85. The clause also sets out the circumstances in which the court may allow publication. 24

 


 

Clause 87 requires each Court and VCAT to give the Attorney-General a report each financial year and sets out the matters that must be included in the report. The report must be provided as soon as practicable after the end of the relevant financial year. Clause 88 provides a rule-making power in respect of matters for which provision may be made under the Bill by rules of court. Any rules made may regulate generally the practice and procedure of a court or tribunal under the Bill. Clause 89 allows the Governor in Council to make regulations for or with respect to any matter or thing that is required or permitted by the Bill to be prescribed, or that is necessary to be prescribed to give effect to the Bill. Regulations may be of general or limited application. PART 12--TRANSITIONAL PROVISIONS Clause 90 provides that Part 12 does not affect or take away from anything in the Interpretation of Legislation Act 1984, unless the contrary intention appears. Clause 91 sets out the transitional provisions in relation to orders declaring a person to be a vexatious litigant made under section 21(2) of the Supreme Court Act 1986, which is repealed by clause 102 of the Bill. The clause provides that an order made under section 21(2) of the Supreme Court Act 1986 that is in force immediately before the repeal of that section is taken, on and from that repeal, to be a general litigation restraint order made under clause 29 of the Bill, on the same terms as the terms of the order made under section 21(2) of the Supreme Court Act 1986 (unless the terms are otherwise varied or revoked under the Bill). Clause 92 sets out the transitional provisions in relation to applications made under section 21 of the Supreme Court Act 1986 that have not begun to be heard or determined immediately prior to the repeal of that section. Section 21(1) of that Act allows the Attorney-General to apply to the Supreme Court for an order declaring a person to be a vexatious litigant. The clause provides that, on and from the repeal, the application is taken to be an application by the Attorney-General under clause 28 of the Bill for a general litigation restraint order. The Bill will apply to the hearing and determination of the application. 25

 


 

Clause 93 sets out the transitional provisions in relation to applications made under section 21(1) of the Supreme Court Act 1986 that have begun to be heard and determined, but have not been finally determined, immediately prior to the repeal of that section. The clause provides that section 21 of that Act (as in force immediately before its repeal) will continue to apply to the hearing and determination of the application. If the application results in the making of an order declaring a person to be a vexatious litigant, the order is taken, on the making of the order, to be a general litigation restraint order made under clause 29 of the Bill, on the same terms as the terms of the order made under section 21(2) of the Supreme Court Act 1986 (unless the terms are otherwise varied or revoked under the Bill). Clause 94 sets out the transitional provisions in relation to orders declaring a person to be a vexatious litigant made by the Magistrates' Court or the Children's Court under section 193 of the Family Violence Protection Act 2008, which is repealed by virtue of the repeal of Part 11 of that Act by clause 125 of the Bill. Clause 94 provides that an order made under section 193 of the Family Violence Protection Act 2008 that is in force immediately before the repeal of Part 11 of that Act is taken, on and from that repeal, to be an extended litigation restraint order that relates to intervention order legislation made under clause 19 by the Magistrates' Court or the Children's Court (as the case requires). The extended litigation restraint order is taken to be on the same terms as the terms of the order made under section 193 of the Family Violence Protection Act 2008 (unless the terms are otherwise varied or revoked under the Bill). This clause is subject to clause 96, which provides for orders made under section 193 of the Family Violence Protection Act 2008 to continue to be dealt with under Part 11 of that Act for the purposes of certain applications which are part heard immediately prior to the repeal of Part 11 of that Act. Clause 95 sets out the transitional provisions in relation to applications made under section 189, section 194, section 195 or section 197 of the Family Violence Protection Act 2008 that have not begun to be heard or determined immediately prior to the repeal of Part 11 of that Act by clause 125. Section 189 of that Act allows specified persons to apply to the Magistrates' Court or 26

 


 

Children's Court for an order declaring a person to be a vexatious litigant. Section 194 of that Act provides for a person declared to be a vexatious litigant to seek leave to make applications under that Act. Section 195 of that Act allows a vexatious litigant to apply for leave to appeal against the making of the order declaring the person to be a vexatious litigant. Section 197 of that Act allows a vexatious litigant to apply for leave to vary, set aside or revoke the order declaring the person to be a vexatious litigant. In relation to applications made under section 189 of the Family Violence Protection Act 2008, the clause provides that if the application was made by the Attorney-General, it is taken to be an application for an extended litigation restraint order that relates to intervention order legislation made by the Attorney-General under clause 18(1)(a). If the application was made by a person referred to in section 189(1)(b), (c) or (d) of that Act, it is taken to be an application for an extended litigation restraint order that relates to intervention order legislation made by a person against whom a vexatious proceeding has been conducted or commenced under the intervention order legislation under clause 18(1)(b). In relation to applications referred to in section 194 of the Family Violence Protection Act 2008, the clause provides that the application is taken to be an application for leave to proceed under clause 52(2). In relation to applications made under section 197 of the Family Violence Protection Act 2008, the clause provides that the application is taken to be an application for the variation or revocation of an extended litigation restraint order that relates to intervention order legislation under clause 65. In relation to applications made under section 195 of the Family Violence Protection Act 2008, the clause provides that the application is taken to be an application for leave to appeal against the making of an extended litigation restraint order that relates to intervention order legislation under clause 79. The Bill will apply to the hearing and determination of all of these applications. 27

 


 

Clause 96 sets out the transitional provisions in relation to applications made under section 189, section 194, section 195 and section 197 of the Family Violence Protection Act 2008 that have begun to be heard and determined, but have not been finally determined, immediately prior to the repeal of Part 11 of that Act. The clause provides that Part 11 of that Act (as in force immediately before its repeal) will continue to apply to the hearing and determination of these applications. If an application made under section 189 of the Family Violence Protection Act 2008 results in the making of an order declaring a person to be a vexatious litigant, that order is taken, on the making of the order, to be an extended litigation restraint order that relates to intervention order legislation made by the Magistrates' Court or the Children's Court (as the case requires) under clause 19 of the Bill. The extended litigation restraint order is taken to be on the same terms as the terms of the order made under section 193 of the Family Violence Protection Act 2008 (unless the terms are otherwise varied or revoked under the Bill). In relation to an application referred to in section 194 of the Family Violence Protection Act 2008, on the deciding of the application, the applicant is taken to have been granted leave to proceed or refused leave to proceed under clause 53 and the person is taken to be subject to an extended litigation restraint order that relates to intervention order legislation made under clause 19 by the Magistrates' Court or the Children's Court (as the case requires). The extended litigation restraint order is taken to be on the same terms as the terms of the order made under section 193 of the Family Violence Protection Act 2008 (unless the terms are otherwise varied or revoked under the Bill). If an application made under section 197 of the Family Violence Protection Act 2008 results in the making of an order which varies the terms of an order declaring a person to be a vexatious litigant, the order declaring a person to be a vexatious litigant is taken, on the making of the variation order, to be an extended litigation restraint order that relates to intervention order legislation made by the Magistrates' Court or Children's Court (as the case requires) under clause 19. The extended litigation restraint order is taken to be on the same terms as the terms of the order made under section 193 of the Family 28

 


 

Violence Protection Act 2008, as varied in accordance with the variation order made under section 197 of that Act. If an application made under section 195 of the Family Violence Protection Act 2008 results in a determination by the Supreme Court or the County Court that an order declaring a person to be a vexatious litigant is to remain in force, the order declaring a person to be a vexatious litigant is taken, on the making of the determination, to be an extended litigation restraint order that relates to intervention order legislation made by the Magistrates' Court or the Children's Court (as the case requires) under clause 19. The extended litigation restraint order is taken to be on the same terms as the terms of the order made under section 193 of the Family Violence Protection Act 2008 (unless the terms are otherwise varied or revoked under the Bill). Clause 97 sets out the transitional provisions in relation to orders declaring a person to be a vexatious litigant made under section 165 of the Personal Safety Intervention Orders Act 2010, which is repealed by virtue of the repeal of Part 10 of that Act by clause 136 of the Bill. The transitional provisions under this clause are similar to the transitional provisions for the Family Violence Protection Act 2008 under clause 94. Clause 98 sets out the transitional provisions in relation to applications made under section 161, section 166, section 167 or section 169 of the Personal Safety Intervention Orders Act 2010 that have not begun to be heard or determined immediately prior to the repeal of Part 10 of that Act by clause 136. The transitional provisions under this clause are similar to the transitional provisions for the Family Violence Protection Act 2008 under clause 95. Clause 99 sets out the transitional provisions in relation to applications made under section 161, section 167 or section 169 of the Personal Safety Intervention Orders Act 2010 that have begun to be heard and determined, but have not been finally determined, immediately prior to the repeal of Part 10 of that Act. The transitional provisions under this clause are similar to the transitional provisions for the Family Violence Protection Act 2008 under clause 96. 29

 


 

Clause 100 enables the Governor in Council to make regulations containing provisions of a transitional nature. This may include matters of an application or savings nature that arise as a result of the enactment of the Bill, including the repeals and consequential amendments made by the Bill. Regulations made pursuant to this clause have effect despite anything to the contrary in any Act (other than the Bill or the Charter of Human Rights and Responsibilities Act 2006) or in any subordinate instrument. The clause is repealed on the second anniversary of the date that the clause commences, reflecting the transitional nature of this power. Clause 101 enables a Court or VCAT to make an order to resolve any difficulty which arises as a result of the operation of the Bill, such as an unforeseen transitional issue which arises in a specific case. Such an order can be made on the application of a party or on the Court's or VCAT's own motion, and has effect despite any provision to the contrary that is made by or under any other Act (excluding the Charter of Human Rights and Responsibilities Act 2006). PART 13--CONSEQUENTIAL AMENDMENTS Division 1--Amendment of Supreme Court Act 1986 Clause 102 repeals section 21 of the Supreme Court Act 1986, which allows the Supreme Court to make an order declaring a person to be a vexatious litigant and sets out various other matters in relation to such an order. This provision is obsolete in light of the new regime for the management and prevention of vexatious litigation that is established by the Bill. Clause 103 amends section 25(1) of the Supreme Court Act 1986, which provides that the Judges of the Court (not including any reserve Judge) may make rules of court for or with respect to specified matters. The clause inserts a new paragraph (ag) to introduce a specific power for Supreme Court judges to make rules of court in relation to the Bill. 30

 


 

Division 2--Amendment of County Court Act 1958 Clause 104 amends section 78(1) of the County Court Act 1958, which provides that a majority of judges (other than reserve judges or associate judges) may make rules for all or any of specified purposes. The clause inserts a new paragraph (db) to introduce a specific power for County Court judges to make rules of court in relation to the Bill. Division 3--Amendment of Magistrates' Court Act 1989 Clause 105 amends section 4I(1) of the Magistrates' Court Act 1989, which provides that the Family Violence Court Division of the Magistrates' Court has jurisdiction to deal with specified matters that arise from or include allegations of family violence by a person. The clause inserts a new paragraph (ab) to give the Family Violence Court Division jurisdiction to deal with proceedings under the Bill in relation to intervention order legislation. Clause 106 amends section 4O(3) of the Magistrates' Court Act 1989, which sets out the matters in respect of which the Neighbourhood Justice Division of the Magistrates' Court has jurisdiction. The clause inserts a new paragraph (f) to give the Neighbourhood Justice Division jurisdiction to deal with proceedings under the Bill in relation to intervention order legislation. Clause 107 amends section 16(1) of the Magistrates' Court Act 1989, which provides that the Chief Magistrate together with two or more Deputy Chief Magistrates may jointly make rules of court for or with respect to specified matters. The clause inserts a new paragraph (cb) to introduce a specific power for the Chief Magistrate and Deputy Chief Magistrates to make rules of court in relation to the Bill. Division 4--Amendment of Victorian Civil and Administrative Tribunal Act 1998 Clause 108 amends Schedule 2 to the Victorian Civil and Administrative Tribunal Act 1998, which sets out the matters in respect of which rules may be made. The clause inserts a provision at the end of Schedule 2 to allow the Rules Committee of VCAT to make rules in respect of procedures under the Bill. 31

 


 

Division 5--Amendment of Children, Youth and Families Act 2005 Clause 109 amends section 515 of the Children, Youth and Families Act 2005, which provides that the Family Division of the Children's Court has jurisdiction to hear and determine specified matters in addition to the jurisdiction given to the Family Division by specified Acts. The clause amends section 515(2) to give the Family Division jurisdiction to deal with proceedings under the Bill in relation to intervention order legislation. Clause 110 amends section 520C(4) of the Children, Youth and Families Act 2005, which sets out the jurisdiction of the Neighbourhood Justice Division of the Children's Court. The clause inserts a new paragraph (e) to give the Neighbourhood Justice Division jurisdiction to deal with proceedings under the Bill in relation to intervention order legislation. Clause 111 amends section 534 of the Children, Youth and Families Act 2005, which prevents a person from publishing or causing to be published specified matters in relation to proceedings in the Children's Court or orders made by the Children's Court, subject to some exceptions. The clause inserts a new subsection (6) to provide that the restriction on publication does not apply to the publication by the Attorney-General under clause 85 of orders that relate to intervention order legislation. This ensures that the Attorney-General does not breach the restriction on publication when complying with the requirement in clause 85 to publish specified orders. Clause 112 amends section 588 of the Children, Youth and Families Act 2005, which allows the President together with two or more magistrates (other than a reserve magistrate) to make rules for or with respect to specified matters. The clause inserts a new subsection (1AC) to introduce a specific power for the President and magistrates to make rules in relation to the Bill. Clause 113 amends section 592 of the Children, Youth and Families Act 2005, which allows the President to issue practice directions, statements or notes in relation to specified matters. The clause inserts a new subsection (1A) to introduce a specific power for the President to issue practice directions, statements or notes in relation to proceedings in the Children's Court under the Bill. 32

 


 

Division 6--Amendment of Family Violence Protection Act 2008 Clause 114 amends section 4 of the Family Violence Protection Act 2008, which defines the key terms and phrases used in that Act. The clause inserts definitions for acting in concert order, extended litigation restraint order and litigation restraint order proceeding. An acting in concert order is defined to mean an order made under clause 36 of the Bill. An extended litigation restraint order is defined to mean an order made under clause 19 of the Bill. A litigation restraint order proceeding means a proceeding under the Bill in relation to specified orders that relate to an application or proceeding under the Act, including extended litigation restraint orders and acting in concert orders. These definitions are included to ensure that certain protections which apply to proceedings under the Act will also apply to relevant proceedings under the Bill. Clause 115 amends section 67(1) of the Family Violence Protection Act 2008, which prevents a child (other than a child who is an applicant for a family violence intervention order or a respondent) from giving evidence for the purposes of a proceeding under the Act, unless the court grants leave for the child to give evidence. The clause inserts "or a litigation restraint order proceeding" into subsection (1), which means that the restriction on children giving evidence without leave will also apply to relevant proceedings under the Bill. Clause 116 amends section 68(1) of the Family Violence Protection Act 2008, which allows the court to order that proceedings be heard in closed court or that only specified persons may be present during the proceeding if it considers it necessary to prevent specified persons from being caused undue distress or embarrassment. The clause inserts "or a litigation restraint order proceeding" into subsection (1), which means that the ability of the court to make such an order can also be made in relation to relevant proceedings under the Bill. Clause 117 amends section 69(1) of the Family Violence Protection Act 2008, which enables a court to direct that alternative arrangements be made for a proceeding in respect of a family violence intervention order (for example, permitting the proceeding to be conducted by means of closed circuit television or using screens to remove the respondent from a person's direct line of vision). The clause inserts "or a litigation 33

 


 

restraint order proceeding" into subsection (1), which means that alternative arrangements can also be made in relation to relevant proceedings under the Bill. Clause 118 amends section 70(1) of the Family Violence Protection Act 2008, which provides that certain persons are protected witnesses for the purposes of a proceeding under the Act. Section 70(3) of that Act prevents a protected witness from being personally cross-examined by a respondent in the proceeding, except in specified circumstances. This clause inserts "or a litigation restraint order proceeding" into subsection (1), which means that the persons specified in subsection (1) will also be protected witnesses for the purposes of a relevant proceeding under the Bill. Clause 119 amends section 114(2) of the Family Violence Protection Act 2008, which outlines various exceptions to a party's right to appeal relevant decisions made in a proceeding under the Act. This clause repeals paragraphs (c) and (d), which relate to appeals by a person declared to be a vexatious litigant by an order under Part 11 of the Act. These paragraphs are repealed as a consequence of the repeal of Part 11 by clause 125. Clause 120 amends section 122 of the Family Violence Protection Act 2008, which enables a relevant person to apply to the court for a rehearing of a proceeding in specified circumstances. The clause amends subsections (1) and (3) and repeals subsection (5) to remove references to a person declared to be a vexatious litigant under Part 11 of the Act. Similarly to clause 119, these subsections are amended and repealed as a consequence of the repeal of Part 11 by clause 125. Clause 121 amends section 150(1) of the Family Violence Protection Act 2008, which prevents a child from being present during a proceeding under the Act in specified circumstances. The clause inserts "or during a litigation restraint order proceeding" into subsection (1), which means that a child will also be prevented from being present during relevant proceedings under the Bill. 34

 


 

Clause 122 amends section 154(2) of the Family Violence Protection Act 2008, which outlines specific costs rules for proceedings for an order to declare a person to be a vexatious litigant under Part 11 of the Act. The clause substitutes a new subsection (2) as a consequence of the repeal of Part 11 by clause 125. The new subsection (2) provides that if a person is made subject to an extended litigation restraint order or an acting in concert order, that person must bear the costs of the proceeding (except for the Attorney-General's costs). However, if a person is not made subject to an extended litigation restraint order or acting in concert order, each party must bear that party's own costs. Clause 123 amends section 166 of the Family Violence Protection Act 2008, which prevents a person from publishing or causing to be published specified matters in relation to proceedings under the Act or orders made under the Act (other than proceedings in, or orders made by, the Children's Court). The clause inserts new paragraphs (c) and (d) into subsection (1) to extend the restriction on publication to litigation restraint order proceedings in the Magistrates' Court and orders made by the Magistrates' Court under the Bill that relate to an application or proceeding under the Act. Clause 124 amends section 167(b) of the Family Violence Protection Act 2008, which provides an exception to the restriction on publication set out in section 166 of the Act in relation to the publication by the Attorney-General of a copy of an order under section 193 declaring a person to be a vexatious litigant or an order under section 197 varying, setting aside or revoking that order. These sections are contained in Part 11 of the Bill, which is repealed by clause 125. This clause substitutes a new paragraph (b) to provide that the restriction on publication does not apply to the publication by the Attorney-General under clause 85 of orders that relate to an application or proceeding under the Act. Similarly to clause 111, this ensures that the Attorney-General does not breach the restriction on publication when complying with the requirement in clause 85 to publish specified orders. Clause 125 repeals Part 11 of the Family Violence Protection Act 2008, which allows the Magistrates' Court and Children's Court to make an order declaring a person to be a vexatious litigant and sets out various other matters in relation to vexatious litigants. 35

 


 

This Part is obsolete in light of the new regime established by the Bill for the management and prevention of vexatious litigation conducted under the intervention order legislation. Division 7--Amendment of Personal Safety Intervention Orders Act 2010 Clause 126 amends section 4 of the Personal Safety Intervention Orders Act 2010, which defines the key terms and phrases used in that Act. This clause makes similar amendments to the amendments made to section 4 of the Family Violence Protection Act 2008 by clause 114. Clause 127 amends section 49(1) of the Personal Safety Intervention Orders Act 2010, which is in similar terms to section 67(1) of the Family Violence Protection Act 2008. This clause makes similar amendments to the amendments made to section 67(1) of the Family Violence Protection Act 2008 by clause 115. Clause 128 amends section 51(1) of the Personal Safety Intervention Orders Act 2010, which is in similar terms to section 68(1) of the Family Violence Protection Act 2008. This clause makes similar amendments to the amendments made to section 68(1) of the Family Violence Protection Act 2008 by clause 116. Clause 129 amends section 52(1) of the Personal Safety Intervention Orders Act 2010, which is in similar terms to section 69(1) of the Family Violence Protection Act 2008. This clause makes similar amendments to the amendments made to section 69(1) of the Family Violence Protection Act 2008 by clause 117. Clause 130 amends section 91(2) of the Personal Safety Intervention Orders Act 2010, which is in similar terms to section 114(2) of the Family Violence Protection Act 2008. The clause substitutes a new subsection (2) in order to remove paragraphs which relate to appeals by a person declared to be a vexatious litigant by an order under Part 10 of the Act. These paragraphs are obsolete due to the repeal of Part 10 by clause 136. Clause 131 amends section 99 of the Personal Safety Intervention Orders Act 2010, which is in similar terms to section 122 of the Family Violence Protection Act 2008. This clause makes similar amendments to the amendments made to section 122 of the Family Violence Protection Act 2008 by clause 120. 36

 


 

Clause 132 amends section 107(1) of the Personal Safety Intervention Orders Act 2010, which is in similar terms to section 150(1) of the Family Violence Protection Act 2008. This clause makes similar amendments to the amendments made to section 150(1) of the Family Violence Protection Act 2008 by clause 121. Clause 133 amends section 111(2) of the Personal Safety Intervention Orders Act 2010, which is in similar terms to section 154(2) of the Family Violence Protection Act 2008. This clause makes similar amendments to the amendments made to section 154(2) of the Family Violence Protection Act 2008 by clause 122. Clause 134 amends section 123 of the Personal Safety Intervention Orders Act 2010, which is in similar terms to section 166 of the Family Violence Protection Act 2008. This clause makes similar amendments to the amendments made to section 166 of the Family Violence Protection Act 2008 by clause 123. Clause 135 amends section 124(b) of the Personal Safety Intervention Orders Act 2010, which is in similar terms to section 167(b) of the Family Violence Protection Act 2008. This clause makes similar amendments to the amendments made to section 167(b) of the Family Violence Protection Act 2008 by clause 124. Clause 136 repeals Part 10 of the Personal Safety Intervention Orders Act 2010, which is in similar terms to Part 11 of the Family Violence Protection Act 2008. Part 10 is obsolete in light of the new regime established by the Bill for the management and prevention of vexatious litigation conducted under the intervention order legislation. Clause 137 repeals Part 13 of the Bill on 31 October 2015. The repeal does not affect the continuing operation of the amendments made by the Bill (see section 15(1) of the Interpretation of Legislation Act 1984). 37

 


 

 


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