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Frivolous and vexatious

Han v 30 Pitt Street PL [2011] NSWWCC 24. Mr Snell.

In deciding whether the requirements of the sub-section [341(4)] are made out, the onus of proof rests on the employer seeking the order.

23. In Sullivan v Illawarra Newspapers Holdings PL [2006] NSWWCCPD 135 Roche DP applied the following passage from the decision of Byron DP in Taeiloa v Forstaff Personnel [2003] NSWWCCPD 8:

“The words in the phrase 'frivolous or vexatious' are not defined in the Act and should be given their ordinary meaning. The Macquarie Dictionary defines 'frivolous' as 'of little or no weight, worth or importance; not worthy of serious notice; a frivolous objection characterised by lack of seriousness or sense'.

'Vexatious' is defined as 'causing vexation; vexing, annoying...': Mudie v Gainriver PL & Anor [2002] QCA 546. These words or this phrase are variously used in different contexts, but in any event, indicate that something much more than lack of success needs to be shown before proceedings or a claim can be said to be frivolous or vexatious: Mudie v Gainriver PL.

The words were discussed in Oceanic Sun Line &c v Fay (1988) 165 CLR 197, where Deane J said 'vexatious' means productive of serious and unjustified trouble and harassment, followed in Voth v Manildra Flour (1990) 171 CLR 538.

An action may be frivolous or vexatious if it is so obviously untenable that it cannot possibly succeed or is 'manifestly groundless, so manifestly faulty that it does not admit of argument': L Grollo Darwin Management PL v Victor Plaster Products PL (1978) 19 ALR 621."

24. In Angelozzi v Carrington Slipways PL (1996) 15 NSWCCR 193 Burke J said:

“For an application to be adjudged frivolous it is necessary, but not sufficient, to establish the claimant doesn't have and never had any genuine claim.

"It must also be shown that he could not have reasonably considered that he had such a claim. As framed by Lush J in Norman v Mathews (1916) 85 LJ KB 857:

‘It must appear that his alleged cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide and contend that he had a grievance which he was entitled to bring before the court.’


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