What are Vexatious Proceedings in the NSW Court System?

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Last year a small group of protesters were stopped and charged by police. The charge was obstructing traffic.

The protesters were anti-coal seam gas and were demonstrating when police arrived. The charge of obstructing traffic came with a paltry $67 fine.

Several were arrested, charged with obstructing pedestrians and drivers as well as hindering police.

When the case reached the courtroom, the magistrate threw out the case, demanding to know why the prosecution was wasting the court’s time with the vexatious charges.

The case was thrown out and scathingly described as absurd and a waste of the courts time.

What can only now be seen as an embarrassment for the police and police prosecution that the case even made it as far as court also demonstrates the courts dislike for people who waste it’s time and unnecessarily inflict the stress of court appearances on defendants.

While this doesn’t mean that police are never justified in charging people with relatively obscure crimes, it should be a warning against launching too quickly into vexatious proceedings.

Under the NSW court system, vexatious proceedings can be thrown out of court.

They are not only an abuse of the court process to gain advantage or cause harm but a waste of the court’s time.

There are four categories of vexatious proceedings:

  • An abuse of process of the process of a court or tribunal
  • Proceedings started with the intention to annoy or harass, cause delay or detriment or any other wrongful purpose
  • Proceedings commenced without a reasonable ground
  • Proceedings that are conducted in a way that annoys, harasses, causes delay or detriment or achieve any other wrongful purpose

There is even a whole piece of legislation dedicated to them: the NSW Vexatious Proceedings Act, which governs both civil and criminal matters.

If you believe the charges against you are vexatious, you can request the court throw the case out on that basis.

Even if you aren’t the defendant, you can still seek an order if you have sufficient interest in the case; which means that the case will affect you in some material way.

Courts have the power to set aside vexatious proceedings and there is a register of known repeat offenders on their website.

If someone’s name makes the list, they are no longer allowed to commence proceedings without leave of the court.

The consequences of false accusations can be unfair – they have the potential to ruin a reputation and even relationships or careers even if completely unfounded.

It is against the law to make accusations knowing them to be false. Yet unfortunately this sometimes happens, either by complainants or by police.

In the criminal law context, vexatious proceedings in the NSW court system may include the repeated prosecution of the same suspect in the same crime.

One-off vexatious proceedings will not normally be enough to get someone declared vexatious under the law– there will usually need to be a level of repetition.

Courts have also made it clear that it is impermissible to prosecute a defendant for perjury at their original trial when they claimed innocence.

This is abuse of court procedures and vexatious because it is in effect, a sneaky way to re-prosecute the same matter. This is both unfair to a defendant, and undermines the finality and conclusiveness of criminal proceedings.

Vexatious AVOs:

Apprehended Violence Orders (AVOs) are often brought by vengeful former partners, landlords/tenants/neighbours and former friends for vexatious reasons.

AVOs can be misused for a variety of reasons such as strengthening other proceedings, extending or gaining visas or gaining advantages against former associates.

If you have been the subject of a vexatious AVO, it is possible to fight it on that basis.

In court, either the police or private applicant will have to prove that on the balance of probabilities that the person in need of protection (or PINOP) had reasonable grounds to fear certain forms of behaviour such as intimidation, stalking or violence.

A vexatious AVO will not be allowed to stand. An authorised officer or even court registrar can refuse to allow AVO proceedings to be commenced or continued if it is found that they are vexatious.

Courts have also recognised the advantages that a well-resourced State has over private defendant and the NSW court system has in a number of cases attempted to ensure that police do not abuse this by dealing with defendants in a vexatious manner.

If you believe that proceedings against you were commenced or conducted in a way that was vexatious and want the case dropped, speak to a criminal lawyer to find out how you can go about bringing this to the attention to the court so that the case might be thrown out before the hearing date.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.


  1. Thomas Toberty

    Great article.
    Please, where is the “there is a register of known repeat offenders on their website”?
    I have searched, but have come up empty. Sorry.
    Thank you,

  2. Terry Sheean

    So true. Most lawyers encourage you to accept the AVO without admission to save money and court time but this puts you in a very vulnerable position when you are dealing with someone who will do anything to hurt you or provoke you into breaking the conditions. Locking you out and throwing your personal items away is not punished by the law even when the court has ruled you have no restrictions on attending the property. I have suggested an alternative method of dealing with AVO claims to the law reform society where a mediator hears both sides of the story before it goes to court. The PINOP and defendant are separated until the mediation appointment. This takes pressure off the police who are under extreme media scrutiny in domestic violence cases and would decrease court time but still ensure perpetrators of violence are dealt with effectively.

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