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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.
571216 1 BILL LA INTRODUCTION 18/2/2014
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.
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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
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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.
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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.
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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.
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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).
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