Vexatious Litigant

Vexatious litigants are individuals who repeatedly instigate legal proceedings that are without merit. In family law proceedings, individuals can use litigation to annoy, harass, frustrate, worry or cost the other party. This prolongs family disputes, places undue stress on the respondents, and strains the court system. In order to manage this issue, there is a statutory provision in the Family Law Act 1975 to curb abusive litigation and protect innocent people from unnecessary hardship. This article looks at the legal consequences for vexatious litigants in family law proceedings, with reference to several court decisions.

What is a vexatious litigant?

A vexatious litigant is a person who repeatedly begins legal actions without sufficient grounds. Case law has recognised vexatious litigation as aimed to annoy or embarrass, ‘brought for collateral purposes’, and ‘so obviously untenable or manifestly groundless as to be utterly hopeless’.

In a family law proceeding, a vexatious litigant can have a profound effect on the victim of their conduct. Sometimes litigants involved in otherwise legitimate cases will engage in vexatious actions intending to slow down or to obstruct the court proceeding, such as seeking access to unnecessary documents, applying for unnecessary hearings, calling unnecessary witnesses or raising unnecessary objections. This means that the other party wastes time and money on court appearances, evidence gathering, and mounting a defence. Sometimes, the party with fewer financial resources is simply forced to ‘bow out’ of proceedings because of the costs and time wasted through unnecessary proceedings.

Identifying vexatious litigants

The court may be able to identify that a litigant is vexatious simply by looking at the history of a legal matter, including the number of applications, their general character and the results of each application. Even if the litigant has been successful in some of their applications, this does not mean that they are not vexatious. In fact, the court may define a proceeding as vexatious regardless of whether a particular case has a valid legal basis. If the court decides that an applicant is frequently lodging vexatious, frivolous or abuse of process actions, it can:

• dismiss the application
• make a cost order against the applicant
• prevent the applicant filing future applications without the court’s permission.

The court can make such orders on its own initiative, or in response to an application from another person. However, the court will not make this type of order unless the litigant has a ‘reasonable opportunity to be heard’.

A vexatious litigant is not permanently barred from accessing the court system. If a vexatious litigant wishes to make an application, they must seek the court’s permission first by filing an Application in a Case that will be heard ex parte (without the respondent’s attendance). The court may dismiss the application, or order service of documents and list the matter for hearing if it is satisfied that there is not a continuation of the person’s vexatious conduct. This approach allows the court to dismiss vexatious applications without the responding party wasting time and money attending a court hearing. If a vexatious litigant tries to institute a proceeding without leave, their application is automatically stayed.

Causes of vexatious litigation

A probable cause of vexatious litigation is that some people cannot accept an adverse outcome and continue to file application after application to try and produce a different outcome. Another probable cause of vexatious litigation is simply badly prepared applications. Unrepresented litigants may inadvertently become vexatious because they do not understand the legal system. As a result, they might struggle to express their argument, or present a confused argument, resulting in the need for numerous additional hearings and multiple filings in relation to a single matter. The court is sympathetic to self-represented litigants struggling with the complexities of the legal system, but it will not permit this lack of expertise to result in the unreasonable harassment of the other party.

In family law matters, vexatious litigation is often (a conscious or unconscious) continuation of the bullying and controlling behaviour that characterised the relationship. In these cases, the court is faced with the difficult task of balancing an individual’s fundamental right to access justice through court proceedings while simultaneously ensuring that the court is not used as a vehicle for continuing family violence.

Vexatious litigation examples

In the Marriage of Wilmoth RS and Wilmoth MR (1981), the parties were previously married for 8 years and had two children. Following separation, litigation between the parties continued for seven years before the mother applied for an injunction restraining the father from bringing any new proceedings without legal representation or leave from the court. At that point, the father had nine applications before the Family Court, seeking orders such as that:

• the mother must bring the children to his business premises after each function to help clean up
• the mother must pay for items of furniture despite there being a finalised property settlement in place
• the children must be brought to him whenever they were sick and not left in the mother’s home, and
• he be granted complete control over the children’s education.

The court granted the injunction, noting that any further proceedings brought by the husband would be a ‘plain abuse of the process of the court’.

The parties in Jabbar & Gade (2019) separated in 2015 and the court made parenting orders in the same year for the care of their two children. However, in the next four years, the mother filed more than 30 applications with the court, most of which required a response from the father. In 2017, a judge commented on what he described as ‘an unbelievable array of applications’ filed in the matter. The father was eventually successful in having the mother declared a vexatious litigant so that he was ‘relieved from endlessly dealing with the mother’s applications’. The judge was satisfied that the mother made the applications without reasonable grounds and that it was difficult to avoid the conclusion that the purpose of the applications was to harass and annoy the father.

Only a small number of individuals have been formally declared a vexatious litigant in Australia. The court takes a conservative approach to this very serious legal action. For more information about vexatious litigants, court procedures and family law in general, call Go To Court Lawyers on 1300 636 846.