Contents

Chapter 16
Vexatious actions

Introduction

16.1In this chapter we discuss what should be done when people persistently bring vexatious actions against others. This was discussed in the final chapter of Issues Paper 29,251  where the Commission noted that New Zealand has had a statutory measure in place since 1965 to help the courts deal with vexatious actions,252  but said there has been concern that the relevant provision, section 88B of the Judicature Act 1908, is no longer sufficient or appropriate.

16.2Section 88B provides the High Court with the power to restrain a person from bringing or continuing civil proceedings in certain circumstances. It states:

(1) If, on an application made by the Attorney-General under this section, the High Court is satisfied that any person has persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior Court, and whether against the same person or against different persons, the Court may, after hearing that person or giving him an opportunity of being heard, order that no civil proceeding or no civil proceeding against any particular person or persons shall without the leave of the High Court or a Judge thereof be instituted by him in any Court and that any civil proceeding instituted by him in any Court before the making of the order shall not be continued by him without such leave.

(2) Leave may be granted subject to such conditions (if any) as the Court or Judge thinks fit and shall not be granted unless the Court or Judge is satisfied that the proceeding is not an abuse of the process of the Court and that there is prima facie ground for the proceeding.

(3) No appeal shall lie from an order granting or refusing such leave.
251Law Commission Review of the Judicature Act 1908: Towards a consolidated Courts Act (NZLC IP29, 2012) at chapter 16.
252The current provision, s 88B of the Judicature Act 1908, began in 1965 as section 71A, with the section number being changed to section 88A in 1966 and then to its current position in 2005: see (respectively) Judicature Amendment Act 1965, s 3; Judicature Amendment Act 1966, s 3; and Judicature Amendment Act (no 2) 2005, s 5(1).