Vexatious Litigants and the Rights to a Fair Hearing, Access to a Court and Legal Aid

Kay v Victorian Attorney-General & Anor (Victorian Court of Appeal, Unreported, 19 May 2009) In this case, the Victorian Court of Appeal considered whether the making of a vexatious litigant order was compatible with the right to a fair hearing under s 24 of the Victorian Charter.  The Court held that while the right to a fair hearing subsumes a right to access the courts and, in certain cases, a right to legal aid, these rights are not absolute and may be subject to reasonable limitations.  In the circumstances, the Court considered the vexatious litigant order to be a reasonable limitation.


The applicant, Ian Kay, had previously been declared a vexatious litigant.  In the present case he sought, inter alia, to have the vexatious litigant order revoked.

Section 21 of the Supreme Court Act 1986 (Vic) sets out the test for declaring a litigant vexatious.  Pursuant to s 21(2), a person may be declared vexatious if the person has 'habitually and persistently and without reasonable grounds instituted vexatious legal proceedings'.  Section 21(5) empowers the court to revoke an order declaring a person vexatious if it considers it proper to do so.  An application to set aside a vexatious litigant order will not be allowed unless the court is satisfied that there has been such a change in relevant circumstances since the making of the order as to make it appropriate that the order be set aside.

The present application was made on the grounds that the vexatious litigant order denied the applicant natural justice by rendering him unable to present his case in accordance with normal court procedures.  Mr Kay also contended that the matter should not be heard until he had been supplied with all of the documents requested to prove the required 'relevant change of circumstance'.

In oral argument, Mr Kay contended, among other matters, that the vexatious litigant order breached his right to access the courts and his right to legal aid in violation of the right to a fair hearing under s 24 of the Victorian Charter.


The Court of Appeal refused the application.  Nettle JA commented that the applicant's repeated submissions to the courts and the repeated provision of reasons by the courts for the rejection of his applications evidenced that the applicant had not been denied natural justice and access to normal court procedures.  According to the Court, the applicant 'was given yet another hearing, he was permitted to put his submission yet again and was provided with yet another set of reasons for the rejection of his application'.  The Court further held that there was no relevant change of circumstances justifying the revocation or variation of the order and that 'most if not all of his contentions are simply a regurgitation of arguments previously advanced and rejected'.

Consideration of the Victorian Charter

Section 24(1) of the Victorian Charter provides that 'a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing'.

At international law, the right to a fair hearing subsumes a right of access to, and equality before, the courts, and a right to legal advice and representation.  In its General Comment on art 14 of the ICCPR (on which s 24 of the Charter is modelled), the UN Human Rights Committee stated that the administration of justice must 'effectively be guaranteed in all cases to ensure that no individual is deprived, in procedural terms, of his/her right to claim justice': HRC, General Comment No 32: Article 14 Concerning the Right to Equality before Courts and Tribunals and to a Fair Trial, (2006), [2].

Right of Access to Courts

In the present case, the Court of Appeal implicitly recognised that s 24 of the Charter enshrines a right to access the court but that such access may be 'subjected to reasonable restrictions aimed at achieving legitimate objectives if the means used to achieve those objectives are proportionate thereto' (see, eg, Golder v United Kingdom (1975) 1 EHRR 524).  Relying on UK and European Court jurisprudence, the Court further held that, 'since a right of access of the kind enshrined in s 24 of the Charter is informed and limited by the "needs and resources of the community and individuals" it is recognised that it is in the interest of justice and thus a legitimate aim to restrict the access of vexatious litigants'.

Right to Legal Aid

The Court of Appeal also recognised that vulnerable litigants may require free legal representation to give effective and practical meaning to s 24 of the Charter, stating 'the right to a fair hearing may require legal aid in some cases, especially criminal cases'.

Again relying on UK and European jurisprudence, the Court accepted that a right to legal aid in civil cases may arise where 'the withholding of legal aid would make the assertion of a civil claim practically impossible, or where it would lead to an obvious unfairness of proceedings' (see, eg, X v United Kingdom (1984) 6 EHRR 136).  The right to legal aid is, of course, not absolute and a legal aid scheme may distinguish between cases on merit.  In the present case, the Court was not satisfied that the lack of legal aid compromised Mr Kay's ability to establish a relevant change of circumstances; rather his problem was that there was no evidence of such a change.

The full text decision is available here.

Ali Shahverdi is a volunteer with the Human Rights Law Resource Centre