Contents

Chapter 16
Vexatious actions

A civil restraint order regime

16.10The Commission considers that New Zealand should introduce a graduated system of orders for restraining vexatious civil proceedings. In our view, the top tier of this system should incorporate the key features of section 88B and, on that basis, the existing provision should not be re-enacted in new courts legislation. We set out below how we consider such a graduated system should operate in New Zealand.255

The making of the application

Who should have standing to apply for an order?

16.11In other jurisdictions, there has been a move towards granting standing to apply for restraint orders to other parties, such as the defendants who are being sued by the litigant in question. In Australia, Victoria is the only jurisdiction where the Attorney-General still has a monopoly on applications.256  In the United Kingdom, parties to a proceeding can apply for any level of civil restraint order,257  and the courts have the power to initiate an application themselves.258

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.”

16.18

The Bar Association recommended the courts should also be able to make an order on the application of:

(a) court registrar;
(b) a person against or in relation to whom the litigant has instituted or conducted a vexatious proceeding; or
(c) a person who, in the opinion of the court, has a sufficient interest in the matter (for example, someone who has been threatened with a vexatious action, or a member of the litigant’s family who is adversely affected by his/her conduct).

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.

R83 New Zealand should adopt a system of graduated orders for dealing with persons who bring vexatious proceedings.

R84 The following should have standing to bring an application for any level of order restraining vexatious proceedings:
(a)The courts of their own motion;
(b)Parties to the proceedings;
(c)The law officers.

Interlocutory proceedings, appeals and criminal prosecutions

16.23One of the problems we identified in Issues Paper 29 was whether or not the courts should be able to take into account interlocutory proceedings and appeals when considering applications for civil restraint orders.259  All submitters agreed that they should, and we consider this to be appropriate and necessary.

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.

Determination of the application and effects of the order

Classes of order

16.25

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:

(a) a limited order;
(b) an extended order; and
(c) a general order.

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).

Limited order

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.

Extended order

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:

(a) in any court, where the order is made by a High Court judge;
(b)in the District Court, where the order is made by a District Court judge.

16.30An extended order is made for a specified period of no greater than three years (although the duration may be extended).

General order

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.

R86 There should be three tiers of civil restraint orders:
(a) A limited order, which restrains the party from making any applications in a particular proceeding without leave;
(b) An extended order, which restrains the party from issuing proceedings or making any applications in relation to any matter involving, relating or touching upon the proceedings in which the order was made without leave;
(c)A general order, which restrains the party from issuing any civil proceedings or making any applications without leave.

Should orders restrain criminal proceedings?

16.33Under the current provision, the High Court cannot make an order preventing a person from commencing a criminal prosecution. In Issues Paper 29, the Commission discussed the role of private prosecutions as a check on the power of the State, but also acknowledged their potential for abuse.260  We noted that there are some controls on private prosecutions in the Summary Proceedings Act 1957 that can prevent them from being used vexatiously, and that these are being strengthened by the Criminal Procedure Act 2011 (once the relevant provisions comes into force). Our preliminary view was that it would not be appropriate to extend civil restraint orders to criminal proceedings.

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.

Post-order considerations

Is leave required to appeal against an order?

16.37In Issues Paper 29, the Commission noted that, while section 88B of the Judicature Act 1908 is ambiguous on its face as to whether leave is needed to appeal against a restraint order, the Court of Appeal has interpreted it as not requiring such.261  We sought views on this policy issue. In the United Kingdom, leave is required to appeal against any civil restraint order, but given section 88B orders are a significant restriction of a person’s right of access to the courts, our preliminary view was that it is appropriate that there be an appeal as of right.

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.

16.39We note that in New Zealand the typical approach is for unsuccessful parties to litigation to have a first appeal as of right, and it is only if they seek to appeal further that leave is then required.262  However, an argument could be made that applications for restraint orders are not “typical”, because before they are granted it must be shown that the respondent has been abusing the court processes. Accordingly, it could be said that a leave requirement would ensure that that the restrained litigant is not continuing to act in such a manner. On the other hand, an application for a restraint order is itself “new” litigation (at least at the extended order and general order tiers), in which case the subject of any such order should perhaps be treated as any other unsuccessful party.

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.

Applications for leave to continue or issue proceedings

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.

16.42Nowhere is it expressly stated whether the potential defendant is entitled to be served with a copy of the application for leave and to appear at the hearing. In Re Collier, the High Court concluded that while applications for leave under section 88B(2) should usually be dealt with on an ex parte basis, the Court has inherent jurisdiction to direct that the Attorney-General and, if appropriate, the proposed defendants be served with the application, and that those parties have the opportunity to appear if they see fit.263  However, the Court noted that neither the Attorney-General, nor the intended defendants, should be lightly troubled by the application.
16.43In Issues Paper 29, the Commission stated that we agreed with the approach in Re Collier, and we asked for submitters’ views.264  The Law Society, the Bar Association and the Senior Courts’ judges all supported this approach. The Bar Association stated that:

…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.

255While the detail of the scheme was framed in Issues Paper 29 as relating to amending s 88B of the Judicature Act 1908 (if we had decided not to recommend a move to a graduated system), the same principles largely apply to both civil restraint models.
256Law Reform Committee, Parliament of Victoria, Australia Inquiry into vexatious litigants Parliamentary Paper no. 162, Session 2006 – 2008  <www.parliament.vic.gov.au> at [10.4].
257 Civil Procedure Rules (UK), Practice Direction 3C – Civil Restraint Orders, 5.1.
258Civil Procedure Rules (UK), r 3.3.
259Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 251, at [16.60]-[16.62]. We note that a Full Court in Attorney-General v Reid [2012] NZHC 2119 has recently held (at [54]) that, having regard to R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1, on the current wording of s 88B it would be inappropriate to treat appeals as “legal proceedings” that have been “instituted”.
260At [16.55]-[16.59].
261Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 251, at [16.74]-[16.77], citing Heenan v Official Assignee [2010] NZCA 135.
262This can be contrasted with the United Kingdom, where in the ordinary course any unsuccessful litigant requires permission to appeal.
263Re Collier [2008] 2 NZLR 505 (HC) at [27]–[28].
264Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 251, at [16.78]-[16.83].