Chapter 16 - Vexatious actions

 

Amending section 88B

If a graduated approach is not adopted in New Zealand, there are a number of issues to consider in relation to section 88B of the Judicature Act 1908 that need to be resolved before it is re-enacted in a new consolidated courts statute. Before discussing these in detail, we briefly outline the model used in many states in Australia to deal with vexatious proceedings.

Standing Committee of Attorneys-General

In 2004, Queensland developed a model bill dealing with vexatious proceedings, under the auspices of the Standing Committee of Attorneys-General (“the SCAG model”).564 Since then, a number of Australian states have passed legislation based on the model bill, including the Northern Territory565 and New South Wales.566

The SCAG model, like section 88B, provides for a sanction of last resort, and operates on the same basic premise, requiring a litigant to repeatedly bring vexatious proceedings. However, the model differs from the New Zealand legislation in some ways that make it easier to obtain a vexatious proceedings order than an order under section 88B.

For example, the Queensland Act allows a broader range of people to apply for orders. Applications for a vexatious proceedings order may be made by:567

(a) the Attorney-General; or

(b)the Crown Solicitor; or

(c)the registrar of the Court; or

(d)a person against whom another person has instituted or conducted a vexatious proceeding; or

(e)a person who has a sufficient interest in the matter.

The last two categories of applicant require leave of the Court to apply for an order.

The Queensland statute also extends the scope of matters to be considered in making the order to include proceedings brought by the litigant in other jurisdictions, and allows orders to be made in relation to proceedings initiated by other persons acting in concert with vexatious litigants.

 

It also lowers the threshold for making orders. The Court may make an order if it is satisfied that a person has frequently instituted or conducted vexatious proceedings in Australia; or is acting in concert with a person who has instituted or conducted a vexatious proceeding in Australia, or is the subject of a vexatious proceedings order.568 A “vexatious proceeding” includes:569

(a) a proceeding that is an abuse of the process of a court or tribunal; and

(b)a proceeding instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)a proceeding instituted or pursued without reasonable ground; and

(d)a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

If found to be made out, the Court may make any or all of the following orders:570

(a) an order staying all or part of any proceeding in Queensland already instituted by the person;

(b)an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in Queensland;

(c)any other order the Court considers appropriate in relation to the person (such as an order directing that the person may only file documents by mail, or an order to give security for costs, or an order for costs).

Orders can be made in relation to proceedings of any kind, within the jurisdiction of any court or tribunal.

Against that background, we now return to some of the problems that have been identified with the New Zealand provision, and how it might be improved.

Who can bring an application under section 88B?

Section 88B provides for the Attorney-General to bring an application for an order, although, as noted above, the power can also be exercised by the Solicitor-General, and in practice is.

In other jurisdictions, there has been a move towards giving standing to apply for vexatious proceedings orders to other people, such as parties who are being sued. In 2008, the Victoria Law Reform Committee noted that Victoria was now the only jurisdiction in Australia where the Attorney-General still had a monopoly on applications.571 In the United Kingdom, parties to a proceeding can apply for any level of civil restraint order and the courts have the power to initiate an application for a civil restraint order themselves.

There are arguments in favour of limiting the right to apply for orders under section 88B to the Attorney-General and the Solicitor-General. An order under section 88B is a significant curtailment of civil rights. In that sense, limiting who can apply for such an order operates as an important safeguard. Crown Law’s filtering role also prevents the risk of an application for an order under section 88B being brought by a party for malicious or tactical reasons, as a tool of litigation strategy.

On the other hand, given the effect of the actions of vexatious proceedings on the people sued, it can be argued that those parties should be able to apply for orders as well. Submitters to the Victoria Law Reform Committee argued that other parties were more likely to be aware of the vexatious nature of the behaviour, and have more incentive to take action.

Some statutes extend standing beyond law officers, but require other parties to get leave from the court before making an application, in order to prevent misuse of the power.572 Our provisional view is that such a “halfway house” approach provides a good balance and may be warranted in New Zealand.

Q59

Who should have standing to bring an application under section 88B:

  • law officers only?
  • other parties?
  • the courts?

Q60

If standing is extended to other parties, should they be required to seek leave before making an application?

What proceedings can orders apply to?

Criminal proceedings

The wording of section 88B requires the High Court to be satisfied that a person has persistently and without any reasonable ground instituted vexatious “legal proceedings”. If the Court is so satisfied, it can make an order preventing the person from filing or continuing any “civil proceeding”.

The result is that the Court can take into account any legal proceedings, civil or criminal, instituted by the litigant when deciding whether to make an order, but can only make an order under section 88B to restrain the litigant from filing or continuing civil proceedings. Therefore, a person who is declared to be a vexatious litigant under section 88B is still able to bring private criminal proceedings.

Although prosecution of offences is regarded as a central function of the State, in 2000 the Law Commission concluded that private prosecutions continued to have an important constitutional and theoretical place in the justice system.573 Private prosecutions provide an important safeguard for citizens against capricious, corrupt or biased failure or refusal to prosecute offenders.574

However, although they provide this check on the power of the State, private prosecutions also carry with them the risk of abuse, and lack some of the safeguards that exist in the public prosecution system. Vengeful or vexatious private prosecutions can cause considerable distress for defendants, and are an abuse of the process of the court, and a waste of time and resources.

The arguments are finely balanced. However, given there are some existing controls on private prosecutions that can prevent them being used vexatiously,575 and further limits on the ability to commence a private prosecution have been enacted in the Criminal Procedure Act 2011,576 our preliminary view is that it would not be appropriate to extend section 88B of the Judicature Act 1908 to criminal proceedings.

Interlocutory proceedings and appeals

At present, interlocutory applications are not included in the proceedings which a court may take into account when considering an application under section 88B.577

The question of whether appeals are properly characterised as proceedings for the purposes of section 88B is less clear. In Re Wiseman, the Court of Appeal held that the lodging of appeals involves the institution of proceedings.578 However, a Full Court in Attorney-General v Collier considered that the point had not been determined in New Zealand, and suggested that caution was needed in taking an expansive approach to the language of a section that impacts upon rights of access protected by the New Zealand Bill of Rights Act 1990.579 In Attorney-General v Heenan, the High Court was not required to decide the point, but noted that an appeal may at least be taken into account in the overall assessment of the respondent’s litigious behaviour.580

This question has been resolved by legislation in some other jurisdictions. For example, the SCAG model bill defines vexatious proceedings broadly, to include interlocutory applications and appeals.581

Q61

Should section 88B of the Judicature Act 1908 be extended to allow orders to be made to prevent a person instituting criminal proceedings?

Q62

Should the courts be able to take interlocutory applications and appeals into account as proceedings that have been instituted when considering applications under section 88B?

 

Criteria for obtaining an order

Section 88B requires the Court to be satisfied that a person has persistently and without any reasonable ground instituted vexatious legal proceedings. Once those grounds are established, the Court can decide whether to exercise its discretion to make an order, and if so, what the terms of the order should be.

The term “vexatious” is not defined. Vexatious in the legal sense requires something more than mere irritation – some element of impropriety or abuse. It has been noted that the words “frivolous or vexatious” are often used interchangeably with the term “abuse of the process of the court.”582

It is not clear that the requirement that proceedings must be instituted “without any reasonable ground” adds anything to the term “vexatious”, as the concept of being without any reasonable ground seems to be inherent in the latter term. Otherwise, it would be possible for a litigant to persistently institute vexatious legal proceedings with reasonable ground.583 Our provisional view is that, if a provision akin to section 88B is retained, the requirement that the proceeding be instituted “without any reasonable ground” be removed.

Section 88B also requires that the person against whom the order is sought has brought vexatious proceedings “persistently.” In Brogden v Attorney-General, the Court of Appeal held that whether proceedings have been instituted “persistently” depends not only on the number of proceedings, but on their character, their lack of any reasonable ground, and the way in which they have been conducted.584

The Court’s approach in this case has been criticised on the ground that most of the factors relied on as being relevant to determining “persistence” are in fact taken into account in other parts of the statutory test, and should not be used to satisfy the persistence element as well.585

In the United Kingdom, the requirement of “persistence” has been removed from the lowest tier of available orders – for a limited civil restraint order, a party need only establish that the litigant has filed two or more proceedings. Persistence is still required for the extended and general civil restraint orders.

In Australia, those states that have adopted the SCAG model bill do not require “persistence”. Instead, they use a less strict test of “frequently” bringing vexatious legal proceedings.586

A number of American states adopt an approach of using numerical criteria to decide whether a person should be declared a vexatious litigant. For example, in Florida, a vexatious litigant may be defined as someone who has taken, on his or her own, five or more civil actions in any Florida state court (except for small claims) over the immediately preceding five years, which have been finally and adversely determined against him or her.587 While this creates an element of certainty, it involves choosing an arbitrary number of proceedings as the trigger point. Further, the courts can only act once those proceedings have all been finally adversely decided and, in the interim, the litigant may file any number of vexatious proceedings.

Q63

Should the meaning of “vexatious” be clarified in section 88B? If so, how?

How long should an order last?

Section 88B does not provide for the revocation, setting aside or variation of orders.588 This begs the question: can the court set aside an order when it is no longer necessary? Or, does it remain in place indefinitely?

In the United Kingdom, there are time limits to the operation of civil restraint orders. Further, the Civil Procedure Rules specifically provide that the vexatious litigant may apply for amendment or discharge of the order provided he has first obtained the permission of a judge identified in the order.

We consider that a time limit for an order should be statutorily provided for, or at the very least the vexatious litigant should be able to apply to the Court for amendment or discharge of the order. It is inappropriate, in our view, for this to be left to the inherent jurisdiction of the court.

Q64

Should section 88B provide a time limit for the application of an order?

Q65

Should the section provide for the revocation, variation or setting aside of orders made under the section?

Is leave required to appeal against an order?

Section 88B(1) gives the High Court power to order that no civil proceeding shall be instituted by a particular person “in any Court”. In Heenan v Official Assignee, the Attorney-General contended that the effect of this wording was that Mr Heenan could not appeal to the Court of Appeal against the decision declaring him to be a vexatious litigant without the leave of the High Court.589

The Court of Appeal rejected this argument, concluding that any statutory restriction on the right of access to the courts must be clear. It held that the words “in any Court” in section 88B were potentially ambiguous, and accordingly it was proper to read down the expression so it did not include the Court of Appeal or the Supreme Court.590 It also considered that the words “in any Court” in section 88B were shorthand for the reference earlier in the section to “in the High Court or in any inferior Court.”591

Heenan has decided the question in New Zealand as to whether leave is required for an appeal against an order under section 88B, but the question remains as to whether the policy position is correct – should vexatious litigants to have to apply for leave to appeal against an order under section 88B? In the United Kingdom, the Civil Procedure Rules provide that leave is required to appeal against any civil restraint order – an application for permission to appeal may be made to the lower court at the hearing at which the decision to be appealed was made, or to the appeal court in an appeal notice.592

Given that an order under section 88B represents a significant restriction of a person’s right of access to the courts, our preliminary view is that it is appropriate that there be an appeal as of right against any such order.

Q66

Should appeals against orders made under section 88B be as of right, or require leave?

Applications for leave to continue or issue proceedings

Where an order has been made under section 88B, a vexatious litigant must seek leave before he or she can institute or continue civil proceedings. 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 Crown Law (as counsel for the Attorney-General) or with the intended defendant.

Neither the Judicature Act 1908 nor the High Court Rules expressly state 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.593  However, the Court noted that neither the Attorney-General, nor the intended defendants, should be lightly troubled by the application.

On the one hand, one of the objects of an order under section 88B is to protect other parties from unnecessary costs and anxiety caused by the activities of the vexatious litigant. Requiring or allowing that litigant to serve an application for leave on the other party may provide them with another avenue for continuing their vexatious behaviour.

Having said that, the intended defendant may well want the opportunity to oppose an application for leave to issue or continue proceedings, and it is in the interests of the defendant and the court to ensure that further unmeritorious claims are identified before proceedings are issued.

In the United Kingdom, the point is dealt with expressly in a practice direction made under the Civil Procedure Rules.594 The practice direction provides that applications for leave must be served on the other party, who is given the opportunity to respond in writing. The application is determined without a hearing.

Our provisional view is that the approach taken in Re Collier is appropriate, and that this should be made clear in any future provision based on section 88B.

Q67

What approach should be taken to service and determination of applications for leave to institute or continue proceedings where an order has been made under section 88B?

Vexatious Proceedings Act 2005 (Qld).

Vexatious Proceedings Act 2007 (NT).

Vexatious Proceedings Act 2008 (NSW).

Vexatious Proceedings Act 2005 (Qld), s5.

Section 6(1).

Schedule Dictionary.

Section 6(2).

Law 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].

See, for example, Vexatious Proceedings Act 2005 (Qld), s 5; Family Violence Protection Act 2008 (Vic), s 189.

Law Commission Criminal Prosecution (NZLC R66, 2000) at 92.

Gouriet v Union of Post Office Workers [1978] AC 435 at 498; Law Commission Criminal Prosecution (NZLC PP28, 1997) at 136.

In particular, section 77A of the Summary Proceedings Act 1957 confers on the Attorney-General the power to stay a prosecution. This provision will be replaced by s 176 of the Criminal Procedure Act 2011 when it comes into force.

See, for example, Criminal Procedure Act 2011, s 26.

Attorney-General v Collier [2001] NZAR 137 (HC) at [39]; Attorney-General v Heenan [2009] NZAR 763 (HC) at [27].

Re Wiseman HC Auckland M672/67, 20 February 1968 and CA10/68, 28 May 1969.

Attorney-General v Collier [2001] NZAR 137 (HC) at [32].

Attorney-General v Heenan [2009] NZAR 763 (HC) at [30].

See, for example, Vexatious Proceedings Restriction Act 2002 (WA), s 3.

IH Jacob “The Inherent Jurisdiction of the Court” (1970) 23 Current Legal Problems 23 at 41.

Taggart and Klosser “Controlling Vexatious Litigants” in Groves M (ed) Law And Government in Australia (Federation Press, Sydney, 2005) at 290.

Brogden v Attorney-General [2001] NZAR 809 (CA) at [21]. The appellant had brought only three proceedings, one of which had not been heard. He appealed against the vexatious proceedings order on the ground that this small number of proceedings could not satisfy the requirement of persistence.

Taggart and Klosser, “Controlling Vexatious Litigants” in Groves M (ed) Law And Government in Australia (Federation Press, Sydney, 2005). As the authors state, “[t]he rolling together of all the factors in Brogden’s case obscured the lack of persistence”.

Vexatious Proceedings Act 2005 (Qld), s 6; Vexatious Proceedingas Act (NT), s 7; Vexatious Proceedings Act 2008 (NSW), s 8.

Title VI Civil Practice and Procedure, 68 Florida Code, §68.093.

Taggart and Klosser, “Controlling Vexatious Litigants” in Groves M (ed), Law and Government in Australia (Federation Press, Sydney, 2005) at 294.

Heenan v Official Assignee [2010] NZCA 135.

At [11].

At [15].

Civil Procedure Rules (UK), r 52.4.

Re Collier [2008] 2 NZLR 505 at [27]–[28].

Civil Procedure Rules, Civil Restraint Orders, Practice Direction Part 3C, April 2010.