Vexatious Litigants: What to do when Don Quixote comes after your windmills
11 January 2016
This article about vexatious litigants has been supplied by David Bannerman and Mark Pollinger, Bannermans Lawyers.
One of the many frustrating scenarios faced by strata owners
corporations, their executive committees and their lot owners is when a
lot owner with a perceived grievance subjects them to seemingly endless
litigation about trivial or non-existent issues or repeated litigation
about the same issues. Such behaviour can amount to vexatious
litigation, in which case the persons subjected to it may have legal
Vexatious litigation can be particularly problematic in a strata context, as such owners:
May have personality disorders and possibly even mental health issues
which lead to obsessive pursuit of the perceived grievances and
inability to resolve those grievances by constructive means.
Thye are typically self represented and not concerned about incurring substantial legal costs.
Can cause owners corporations, executive committee members, lot owners
and strata managing agents substantial legal costs defending themselves
against multiple legal actions and appeals against adverse decisions in
those actions. Further, it is common for vexatious litigants to
continue after being made bankrupt and losing capacity to satisfy costs
orders made against them.
However, there are options open to persons who have been subjected to such behaviour. In particular:
Most courts and tribunals have power to deal with spurious proceedings,
including power to dismiss or stay proceedings and make adverse costs
The Vexatious Proceedings Act 2008 permits the Supreme Court, the Land
and Environment Court and the Industrial Court to make various orders,
including orders staying existing vexatious proceedings and prohibiting
future vexatious proceedings. There is a register of persons in
relation to whom such orders have already been made.
The main requirements for such an order are as follows:
The person seeking the order must be eligible to do so. The Court can
make an order of its own motion and the Attorney General or Solicitor
General can apply for such an order. A person against whom vexatious
proceedings have been brought can apply for such an order and that is
the most common scenario. The Court can also grant leave to apply to a
person whom the Court considers has sufficient interest in the matter
and that may well be the case where an Owners Corporation proposes to
seek an order preventing further vexatious proceedings against lot
The person against whom the order is made must have frequently
instituted or conducted vexatious proceedings or be acting in concert
with someone against whom an order has already been made. The frequency
required is unclear, but persons against whom such orders have been
made have typically instituted a large number of actions over a period
of years. The concept of “vexatious” is also complex, but essentially
involves abuse of the process of the relevant court or tribunal, which
in turn involves proceedings instituted or conducted without reasonable
ground, to harass or annoy or achieve some other wrongful purpose.
Typically, such proceedings involve a baseless action brought for the
purpose of coercing someone to take action which they are not legally
required to take or for the purpose of creating a forum for promoting
the political or other views of the person.
If you have been subjected to such behaviour, you should obtain legal advice.
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