16.12Submitters’ views on the question of standing were mixed. Most were in favour of extending standing to bring an application to parties, at least in relation to the lower levels of order.
16.13A civil restraint order curtails civil rights, and limiting who can apply for such an order may operate as an important safeguard. It may also prevent the risk of an application being brought by a party for malicious or tactical reasons, as a tool of litigation strategy. On the other hand, parties to vexatious litigation are more likely to be aware of the nature of the behaviour, and have more incentive to take action.
16.14The New Zealand Law Society submitted that under a graduated system, in addition to the Attorney-General (or Solicitor-General), the parties to the relevant proceedings should have standing to bring an application for the first two tiers of civil restraint order. However, it proposed that leave of the court should be required, to minimise the risk of ill-conceived or inappropriate applications. The Law Society proposed only the Attorney-General (or Solicitor-General) should have standing to apply for the most restrictive civil restraint order.
16.15The Law Society did not consider the courts should be able to make orders of their own motion, because of the potential risk that this might create perceptions of bias. Rather, it proposed that protocols be developed whereby the courts can refer potential vexatious litigants for investigation and possible action, for example to the Solicitor-General.
16.16The Crown Law Office agreed only the Attorney-General should be able to seek the most restrictive order, as it would be difficult for other applicants to speak to the wider public interest and to balance the potentially competing principles of access to the courts and the need to protect respondents and the courts from actions that are without foundation.
16.17On the other hand, the Bar Association proposed that the Attorney-General should only have standing (but not exclusive standing) at the intermediate and final stages of the system. It also proposed that the courts should be able to initiate orders on their own motion, as in the United Kingdom and Standing Committee of Attorneys-General model in Australia. It stated that “[t]he judges (and court officials) will often be best placed to identify persons who are making unmeritorious claims, and to assess what kind of order would be appropriate.”
The Bar Association recommended the courts should also be able to make an order on the application of:
16.19On the question as to whether other parties should require leave before applying for an order, Duncan Cotterill observed that the discretion as to whether to grant an order will still lie with the court – a leave requirement before one can make an application adds little to the process.
16.20The Commission believes the courts should be able to initiate an application for a civil restraint order themselves, as they will often be uniquely placed to assess the behaviour of a party to one or more proceedings. We also consider that the parties to a vexatious proceeding should be able to apply for any level of restraint order, as should either of the law officers (the Attorney-General or the Solicitor-General).
16.21We do not propose to extend standing to make an application to “other interested parties”. If the defendant to the litigation is not sufficiently concerned to bring an application, we do not consider that a person who only has an interest in the litigation should have standing to do so.
16.22Finally, we agree with the view expressed by Duncan Cotterill that an application should not require leave.
16.24We also consider that, as at present, the courts should also be able to take into account criminal prosecutions initiated by the litigant. No submitters suggested this should not be the case.
R85 The courts should be able to take into account interlocutory applications, appeals and criminal prosecutions brought by the litigant when considering applications for civil restraint orders.
We set out below the features of a graduated system of orders that we consider should be adopted in New Zealand. As in the United Kingdom, in our view there should be three tiers:
16.26We do not consider that a lower tier order needs to be made against a litigant before moving to the next level. However, we expect that, in practice, this will be what happens, as the point of the graduated system is to allow the court to deal with a person’s behaviour in an immediate and targeted way, rather than as a matter of last resort (as is the case at present).
16.27A limited order may be made by a judge of any court where a party has made two or more applications in a particular proceeding that are totally without merit. The effect of the order is to restrain the party against whom it is made from making any future applications in the specific proceedings, without first obtaining the permission of the judge identified in the order.
16.28If the party makes a further application in the proceeding without permission, the application will be automatically dismissed without the judge having to make any order, or the other party needing to respond. A limited order will remain in effect for the duration of the proceedings, unless the court otherwise orders.
16.29The middle tier of the system provides for an extended order to be made by a judge of any court where a party has persistently issued claims or made applications that are totally without merit. An extended order restrains the party from issuing proceedings or making applications concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made, except with permission of a judge:
16.30An extended order is made for a specified period of no greater than three years (although the duration may be extended).
16.31The most restrictive measure, a general order, may be made by a High Court judge where the party against whom the order is made persists in issuing claims or making applications that are totally without merit, in circumstances where an extended order would not be sufficient or appropriate.
16.32A general order restrains a party from issuing any claim or making any application in any court without permission of a High Court judge. A general order operates for up to three years, but may be extended.
16.34Submitters were divided on this issue. The Senior Courts’ judges and the majority of the Bar Association thought that section 88B of the Judicature Act 1908 should be limited to civil proceedings. On the other hand, the Law Society, the Crown Law Office and the District Courts’ judges consider that it should extend to criminal proceedings, as private prosecutions are seldom of constitutional significance and are open to abuse, given the low cost of initiation and lack of requirement for pre-trial information exchange.
16.35The Law Society commented that the general provision in the United Kingdom (section 42 of the Senior Courts Act 1981 (UK)) extends to criminal proceedings. However, we note that only the Attorney-General can apply for an order under this provision and the threshold is high – normal cases require at least five or six vexatious actions to have been filed. The Law Society also noted that while the courts have inherent power to stay criminal proceedings that are an abuse of process, this power is rarely used and is likely to require the defendant to submit evidence and effectively argue the merits of the case.
16.36The Commission considers that, given the existing safeguards (and that these are being strengthened), it is not necessary to extend the vexatious actions provisions to enable them to prevent the institution of criminal proceedings.
R87 Civil restraint orders should not prevent the initiation of a criminal prosecution.
16.38Submitters were mixed on this question. Some, including the Senior Courts’ judges and the Law Society, considered that appeals should be as of right. Others, including the Bar Association, said leave should be required.
16.40On balance, we are not prepared to recommend the imposition of a leave requirement before a litigant can appeal against a civil restraint order. We note that, unless the court grants a stay of the order pending appeal, the restrained litigant will still need to seek leave before instituting any proceedings or applications caught by it, so the order will not be thwarted by the litigant dragging matters out by using the appeal processes.
R88 Leave should not be required for a first appeal against a civil restraint order.
16.41Where a civil restraint order has been made, the subject of the order must seek leave before he or she can institute or continue civil proceedings caught by it. One area of ambiguity is whether the litigant must serve the application for leave on the intended other party and, if so, whether service and the right of appearance lie with the Crown Law Office (as counsel for the Attorney-General), or with the intended defendant.
…The normal rule should therefore be that applications are dealt with without notice and the court should only require service on other parties if it is considering granting the application, or otherwise needs the assistance of opposing argument in determining where the merits lie.
16.44Indeed, it was further submitted by the Bar Association that “[t]he applicant should be prohibited from serving his/her application on any person unless so directed by the Court, as is the case in the New South Wales Act.”
16.45We agree with both these points, and we recommend accordingly.
R89 After a restraint order has been made, applications for leave to continue or issue proceedings should usually be dealt with on a without-notice basis. The applicant should be prohibited from serving his or her application on any person unless so directed by the court.