Loading...

What is a Vexatious Litigant?

23 April 2018

The average person generally spends their life trying to avoid the inside of a Court room. Yet, there are some who just cannot stay away persistently initiating legal actions that do not have sufficient grounds, simply to harass or subdue their adversary. In such cases, the Court is often placed in the difficult position of balancing a person’s fundamental right to access justice through the Courts, against ensuring the Court process is not being abused.

Vexatious litigant defined

Vexatious litigant is someone who persistently begins legal actions but doesn’t have sufficient grounds for doing so. In Family Law proceedings, the impact that a vexatious litigant has on the individual who is the victim of their conduct can be significant. In many cases, the result is often that the party with limited financial resources ‘bows out’ of proceedings due to the delays and costs brought about by the vexatious litigant.

Frequently starting court applications

In assessing whether Court proceedings are vexatious, the Court must look at the whole history of the matter, including the number, general character and the result of the proceedings. The Court may determine that proceedings are vexatious notwithstanding that a particular case may have had a legal basis.

If the Court is satisfied that an applicant has frequently started Court Applications that are frivolous, vexatious or an abuse of process, it may:

(a) dismiss the applicant’s application;

(b) make a costs  order; and

(c) stop the Applicant filing any further applications, without the court’s permission.

Such an order may be made by a court on its own initiative, or the application of a party. However, an order of this nature cannot be made unless the litigant in question has had “a reasonable opportunity to be heard”.

Application in a Case

The Court Rules provide that if a person who has been prohibited from filing or continuing an application without the Court’s permission wants to file an Application, they must first file an “Application in a Case” and the matter will be heard ex parte (without the other party’s attendance).  On the first Court date the Court may dismiss the application, or if the Court is satisfied that the case has a ‘reasonable likelihood of success’, it may order service of the documents and list the matter for a hearing. This approach ensures that, if the Application is vexatious and is then dismissed, then the other party has not had to waste time and money attending Court.

A vexatious litigant can be represented or unrepresented. Interestingly, people often associate unrepresented litigants with vexatious conduct, which has been the subject of much discussion among Law Reform Committees and community organisations. One theory is that many unrepresented litigants do have valid causes of action, but are simply not able to properly state them without adequate legal representation. Alternatively, it is argued that vexatious litigants are often obsessive people with particular personality traits who refuse to accept adverse outcomes, regardless of whether they have adequate representation.

Sometimes, individuals who are represented engage in conduct that adversely impacts on the efficiency or effectiveness of the Court for ‘tactical reasons’, consequently obstructing the course of justice. Such conduct has a range of impacts which can include significant resources being consumed in appearances, court time, gathering evidence, defending claims and so on.

In the marriage of Wilmoth, R.S. and Wilmoth, M.R. (1981)

In this case the parties had been married for 8 years and had 2 sons. Following separation there was an extraordinary amount of litigation between the parties, both in the Victorian Supreme Court and the Family Court of Australia, principally concerned with what was then called “custody” of, and “access” to, the children.

The Mother commenced proceedings for dissolution of marriage in 1974 and those proceedings took some years to bring to fruition. In 1976, following a contested hearing, Final Orders regarding parenting arrangements were also issued awarding ‘custody’ of the boys to the Mother and ordering the Father have defined periods of ‘access’.

As a result of continued litigation the Wife eventually applied in 1981 for, among other things, an injunction to restrain the Husband from instituting any application unless he was represented by a solicitor, or had first obtained “leave” from the Court.

At the time, the Wife’s Application was heard, there were 9 applications before the Family Court for determination. Some of the orders sought by the Husband in the various applications included the following:

  • an order that he be given custody of the children or unlimited access until the children are 18 years old;
  • that after each function held at his business premises, the wife bring the children to the business to assist in cleaning up and do the odd jobs boys do, and that he call and take them back to the residence, if the children do not stay on with him.
  • due to the irregular nature of his business, he be given complete access during all school holidays.
  • that he not be required to maintain the boys while he has them during access.
  • that the Wife reside at a place where the boys can commute between properties of himself and his Wife, either by foot or public transport.
  • that certain items of furniture be paid for by the Wife, despite the fact that a property settlement agreement has been signed and approved.
  • that the children when sick be not left in the Wife’s home but be brought to him to be cared for.
  • that he be given control of the children’s education and that they receive vocational guidance.

In the final judgement the Judge stated:

“At the hearing before me, the Husband made it plain that he intended to institute further proceedings to force his Wife to give way to his demands regarding access and the control of the boys… In my view, any further proceedings by the husband concerning access or the control of the boys based on the material disclosed in the husband’s affidavits filed in support of his applications or based on what he told me during the proceedings would be a plain abuse of the process of the Court”.

Held:

The Court ordered that the Husband be restrained from instituting any Court application unless he was represented by a solicitor, or had first obtained “leave” from the Court.

Conclusion

There are only a very small number of people who have formally been declared vexatious litigants nationally. This does not reflect the number of proceedings that are frivolous or vexatious, but rather the conservative approach taken by the Court given the very serious infringement of human rights that long term preclusion of access to legal processes causes.

If you wish to know more about the Court procedures or need assistance with Family Law, call our Brisbane office on (07) 3221 4300 today.  Also, you’re welcome to email to [email protected] to arrange a fixed-cost, no-obligation appointment with an experienced family lawyer.

2022-01-05T14:00:28+10:00

Client Testimonials

My family lawyer was very helpful in assisting me to combat a very ugly situation without stooping to the low levels that the other solicitor attempted to take us.
M.J., Manly
Michael is very personable and very good at covering the material and explaining the strategy.
J.O., Hawthorne
Lovely to deal with and provides a balanced view in what are very difficult circumstances.
A.C., Morningside
Amy’s work was extremely professional but above all she has a manner and wisdom in dealing with people under stress. I will be recommending your firm to anyone that requires assistance.
K.H., Augustine Heights
Thank you for the outstanding legal advice you have provided and professionalism in which you conduct yourself. I am truly thankful that it was you who represented me.
M.T., Stafford
Amy, thank you for all that you have done during this matter. You impressed me with your professionalism from our initial meeting, and you have proven beyond doubt, to have had the skills and knowledge required. You are a credit to the company, and I would highly recommend you to anyone in a similar situation.
R.P., Cleveland

I have appreciated the way that you and the staff at your firm have handled my situation. I would especially like to mention the professional and caring way my lawyer conducted my case, I am deeply grateful and extremely happy with the results. I will be referring others to your service.

J.H., Wellington Point
Amy, thank you. You have been diligent, accurate and pro-active for the entire duration of my matter. I appreciate it.
R.P., Cleveland

My lawyer has been an amazing help through this stressful time. I will remember her help for the rest of my life. Thank you.

J.H., Brisbane
Thank you for your ongoing conciliatory approach in this matter and as always I appreciate your level headed advice. I certainly feel that I ended up with the right Solicitor.
S.C., Nundah

I was very impressed with the initial interview. Everything was well-explained, and the advice was honest about what I should expect.

C.M., Morningside

Thank you Debra for all the work you did for me, you both made the process manageable and brought sense to the chaos.

R.B., Toowong
A personalised and professional service. Information has been clear and provided timely to assist my decision-making.
S.S., Hamilton

Thank you very much to everyone at Michael Lynch Family Lawyers. Thank you for helping me get my life back and make a fresh start. To have that fresh start without fear and anxiety is priceless.

A.A., Perth

At Michael Lynch Family Lawyers I got professional and ‘no-nonsense’ advice, costs were within quoted amounts and my matter was resolved quickly – well done!

L.R., Ascot

Many thanks to Stephanie for her help and support through this time, I was incredibly impressed with her work.

L.K., North Lakes
I really appreciated the happiness of your secretarial staff.
G.C., Clayfield
I always felt that the service provided by Michael Lynch Family Lawyers was of a high standard. Each time, after appointments I came away feeling secure. Keep doing what you are and maintain the ‘family feel’ that permeates your services.
C.W., Brookfield

Michael Lynch Family Lawyers know what they are talking about.

R.M., Warwick
The staff at Michael Lynch Family Lawyers were great. Everyone was fantastic, professional, understanding, caring and always communicated with me. I knew I was in good hands.
A.A., Eatons Hill

I would like to thank your firm for the support and compassion shown while dealing with my matter.

C.M., Brisbane

I just wanted to get in touch to say thanks for helping me get through my custody and settlement. Thanks again to you and your staff. You have had a significant positive impact in my kids’ lives!

B.S., Brisbane
My solicitor provided a personalised service, prompt and quick responses and cost information prior to my commitment.
G.C., Southport

Michael Lynch Family Lawyers are easy to deal with, and your systems are good.

D.T., Ferny Grove
Michael, thank you again for your presence here yesterday. We really appreciated the clarity and accessibility of your presentation. It is a rare thing to find somebody who not only has expertise, but also has a skill in communicating it.
J.S., Brisbane

After utilising the mediation services team recommended by your organisation, my ex-partner and I were able to reach some interim agreements about parenting. I am incredibly grateful for the advice provided by Debra Effeney; and found your firm’s services to be exceptionally professional. If we needed to consult a family lawyer in the future, we would have no hesitation in reconnecting with your firm.

K.M., Paddington
My lawyer acted with professionalism in all her dealings with me and with the lawyer on the other side. I was always kept in the loop. I liked her approach. Thanks.
D.S., Coorparoo
Your team is professional, warm, friendly and real.
N.R., Crows Nest
I appreciate my lawyer’s professional approach and her being on top of my situation.
N.S., Mt Gravatt
I was guided through a really difficult time with expertise of Michael Lynch Family Lawyers. I am more than happy with the outcome of mediation.
J.H., Windaroo
Amy, thanks very much to you and your team. Throughout my dealings with MLFL I have been continually impressed with your level of professionalism and, in particular, your understanding of circumstances and the articulate way you conduct yourself. I was completely satisfied with today’s outcome and without your experience and expertise in family law I doubt that the result would have been achieved.
M.R., West End

Thank you for helping me through this difficult time. You have been caring, compassionate and efficient. Some of my divorcing friends have not been so fortunate. In my mind, you are the best family lawyer in Brisbane. If anyone I know needs a good family lawyer, I will tell them to speak to you. Thanks again.

B.T., Clayfield
I like your friendly service and the ability to speak to my solicitor directly.
R.G., Wishart
Many thanks for your assistance – life is now great – I’m moving on.
J.K., Mansfield

Thank you, you kept me sane in a difficult situation and gave me the encouragement and the confidence to keep going. You made me feel extremely comfortable.

A.M., Chambers Flat
May I take this opportunity to express my gratitude to you and your staff for the excellent professional services I received. In a word, priceless.
D.H., Hendra
I was impressed by my solicitor’s attention to detail and her concern for me, and that the process was explained to me and that I understood it at all times.
B.W., Chapel Hill
Michael Lynch Family Lawyers always gave me competent and knowledgeable advice. I was consistently kept up to date. The meetings and phone calls were kept business-like, yet caring and thoughtful of my emotional state at the time. Thank you.
J.S., Holland Park

I was always confident that I was getting the very best advice.

T.S., Flinders

We had such a positive experience with Michael Lynch Family Lawyers, and we highly recommend their services. Meticulous attention to detail, attended quickly to every additional request we made, and made sure we always knew exactly where we were every step of the way. Our lawyer took what was such a stressful and emotional time for our family, and made the process feel so smooth and seamless.

N.B., Brisbane

I’m very glad ‘Michael Lynch Family Lawyers’ is my lawyer and not the other side’s solicitor.

S.S., Hamilton
If I need a family lawyer in the future I’ll be heading to Michael Lynch Family Lawyers again.
C.W., Brookfield

Thank you for being very personable, professional and always providing me with the most appropriate advice in my times of difficulty. The other party’s lawyers were extremely aggressive, while Michael Lynch Family Lawyers remained calm and professional.

S.D., Parkinson

My solicitor is a good listener. My documentation maintained the high moral ground.

S.S., Hamilton

Your staff is knowledgeable, professional and very calm.

A.C., Helensvale
The professionalism and reliability delivered by Amy Honan was fantastic. I had an urgent matter around my property sale and Amy offered to provide assistance over a weekend if I required it – that’s above and beyond!
E.F., Nundah
So pleased to have had a good, sound and knowledgeable firm.
C.W., Brookfield
I appreciate you being upfront with fee estimates. You also have a fantastic website and the seminars REALLY helped to get me focussed.
T.C., Tarragindi
Michael Lynch Family Lawyers have really listened to me. I felt confident my case was handled well. The law has changed recently, and I did not feel that a previous law practice I spoke to was suitably up-to-date.
P.B., Carindale
Your newsletters are great, I appreciate them.
K.B., Carina

You, guys, provide extraordinary service.

A.O., North Brisbane
Thank you, you placed my needs first, you were aware of the need to reach a final result and not get caught up in the personal issues of the other party.
S.L., Moranbah
I liked my solicitor keeping things as simple as possible.
S.M., Clayfield
I like that my lawyer treated me like a friend and kept jargon to a minimum. She was easy to contact and kept me informed.
L.R., Samford

I really liked the personable service by Michael Lynch Family Lawyers, the simple plain language you adopt and everyone’s patience.

A.O., Kedron
Thank you for the great newsletter. Your article on “Coping with Christmas” is brilliant – clear, caring and helpful. Thanks again!
C.T., Bribie Island

My lawyer was the most knowledgeable of all lawyers I spoke to when looking for a lawyer. Michael Lynch Family Lawyers showed professionalism.

R.R., Brighton
Your team’s communication with me was exceptional, I knew exactly what was happening.
A.A., Eatons Hill
Thank you for providing me with a professional yet empathetic approach to gain the best outcome for me. My solicitor was excellent in explaining the processes and in representing me in Court. You have great customer service!
T.V., Everton Park