Vexatious litigants

Q.  Could we be branded as “vexatious litigants” ?

 A.  See at p.3 Article of the A-Gs Fiat (Part I) at this link:

“(C)          Have an Informant labelled a “Vexatious Litigant”.

 Para.2.18 of the Law Commission Report 1998, describes the power of the High Court, on the instigation of the Attorney-General, as follows:

 “Under section 42 of the Supreme Court Act 1981  and on the application of the Attorney-General, the High Court may make a “criminal proceedings order” against a person if it is satisfied that he or she has “habitually and persistently and without reasonable ground … instituted vexatious prosecutions (whether against  the same person or different persons)”.

A “criminal proceedings order” declares the person to be a vexatious litigant and prevents the person bringing further proceedings without leave of the High Court. If the court is satisfied that the person is a vexatious litigant in both civil and criminal proceedings, it may make an “all proceedings order” as a result of which that person is prevented from bringing both criminal and civil proceedings without leave of the High Court.  “.

This is the singular instance of an example where the Attorney-General is not able to act so as to quash or prevent access to justice by himself alone; but rather where he can do so only by invoking the exercise of a specific statutory jurisdiction granted by Parliament to the High Court instead.”

Two main points :

(a) because one is required to obtain the consent of the A-G as a condition precedent to the institution of the particular proceedings we are here concerned with, it follows that it is technically impossible for the A-G to allege such a person as comprising in a vexation litigant instead,  because by definition he cannot have had the opportunity to have “instituted vexatious prosecutions” at all, let alone done so “habitually and persistently” –  per s,42(1)(c) of the Supreme Court Act 1981 (as amended)  – unless and until he first gets the A-Gs consent to do so, at which point it would then become the A-G, if anyone, who would be the vexatious litigant  ! The worst the A-G can brand you is a “vexatious correspondent”!?!  if he were dumb enough … then again

(b) before the High Court can ‘brand’ someone as a “vexatious litigant” on the application of the A-G  under this procedure, that person has the right under the section to appear before the High Court and be heard in opposition. So instead of your case being summarily dismissed by an officious assistant justice’s clerk on the basis that you have not and will never get the A-Gs consent (“go away you silly stupid people before I have you arrested for obstruction of justice”), instead you get a full-blown High Court hearing before at least two-judges to present your case on all its merits instead. That would defeat the very purpose as far as the A-G would be concerned.