De Varda v Austin (No 3)

The Court of Appeal of New South Wales, comprising Bell P, McCallum JA, and Emmett AJA, considered an appeal by De Varda against orders made by Pembroke J on 8 June 2018. The dispute concerned the making of orders under the *Vexatious Proceedings Act 2008* (NSW) against De Varda.

The central legal issue before the Court of Appeal was whether the orders made by Pembroke J under the *Vexatious Proceedings Act 2008* (NSW) were valid, given that De Varda had not been heard and had not been given an opportunity to be heard before those orders were made. The non-compliance with section 8(3) of the Act was conceded by the respondent. A further question arose as to whether the Court of Appeal itself should entertain an application for orders under the Act in the circumstances of the appeal.

The Court of Appeal found that the concession regarding the non-compliance with section 8(3) of the *Vexatious Proceedings Act 2008* (NSW) was determinative. This section mandates that a person against whom an order is sought must be given an opportunity to be heard. As this procedural requirement had not been met, the orders made by Pembroke J were vitiated. The Court also determined that it was not appropriate for the Court of Appeal to entertain an application for orders under the Act in the present circumstances.

Consequently, the Court of Appeal allowed the appeal and set aside orders 2 and 3 of Pembroke J’s decision made on 8 June 2018.