Chapter 16
Vexatious actions

Querulous litigants

16.46Before we conclude this chapter, it is necessary to deal with one final matter. This is what has been termed “querulous litigants”. The issue they present has been described in the following way:265

Such research as there is tends to suggest that initially the querulous litigant had a legitimate grievance. The judicial or other resolution of that grievance, however, never satisfies or brings finality. The litigant will sue and re-sue. Attempts are made to circumvent matters which are res judicata by collateral attack. Judges and law officers become litigation targets. When there is some statutory complaints procedure against judicial officers, targeted too will be the complaints adjudicator. Appeal tracks are pursued and re-pursued.

16.47The Bar Association in its submission has asked us to consider this category of litigants in the context of the restraint of vexatious proceedings. It submitted:

(a) That the High Court Rules dealing with incapacitated persons be amended by:
  • removing the power under Rule 4.42 for the Court to order costs against a litigation guardian; and
  • amending Rules 4.30 and 4.35 in order to empower the Court, where it considers appropriate, to appoint an amicus curiae to assist the Court in relation to an incapacitated person in lieu of appointing a litigation guardian.
(b) That section 88B of the Judicature Act 1908 be amended by conferring on the Court a discretion in cases where the Court considers the proceeding brought by the incapacitated person, or any defence or counterclaim raised by such incapacitated person to have merit, to refer the proceeding to the Public Defender’s Office for assignment by that Office of counsel to represent the litigant and take over from the litigant the conduct of the proceeding, defence or counterclaim.

16.48We have considerable sympathy for the position that lawyers find themselves in when dealing with problem litigants, whether it be acting for them (in one capacity or another) or representing the opposing party. However, it is outside our terms of reference to consider incapacitated persons, particularly where the suggested changes are matters properly left to the Rules Committee. We do note, though, as the Bar Association acknowledges, that the graduated civil restraint order system we are recommending will cover the querulous litigant, and will hopefully assist in this regard.

265Corbett v Western [2011] 3 NZLR 41 (HC) at [8].