Chapter 16 - Vexatious actions


Access to the courts is an integral element of the rule of law, and a fundamental right in a democracy.544  However, sometimes people use the courts in ways that strain the resources of the justice system and place undue pressure on other parties, court staff and judicial officers. Some people repeatedly bring civil proceedings, often involving the same subject matter, against others, despite the courts finding that their claims are without merit. Others respond to a decision that goes against them by bringing still more proceedings, drawing in an ever-widening circle of defendants.

There are mechanisms operating in the courts system that have the effect of discouraging people from taking proceedings to court unless they have a genuine cause of action, but these are not always enough. Further, while the High Court has inherent jurisdiction to restrain a plaintiff from making applications within an existing proceeding (on the basis that they are vexatious), without the leave of the Court,545 it does not have the power under its inherent jurisdiction to prevent a person from commencing proceedings that appear to be vexatious.546  Nor does it have inherent jurisdiction to prevent a plaintiff from instituting future actions without leave.547

Accordingly, New Zealand has, since 1965, had statutory measures in place to help the courts deal with litigants who persistently bring vexatious civil proceedings against others.548  This Issues Paper examines those provisions, and asks whether they are satisfactory and sufficient, or whether they need to be improved.

Re H&W Wallace Ltd (in liquidation) [1994] 1 NZLR 235 at 241. The right to bring civil proceedings involving the Crown, and judicial review proceedings, is protected by section 27(2) and (3) of the New Zealand Bill of Rights Act 1990. Also, article 14 of the United Nations International Covenant on Civil and Political Rights encompasses the right of access to the courts.

Grepe v Loam (1887) 37 Ch D 168 (CA).

IH Jacob “The Inherent Jurisdiction of the Court” (1970) 23 Current Legal Problems 23 at 43.

Stewart v Auckland Transport Board [1951] NZLR 576.

The current provision, section 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 Judicature Amendment Act 1965, s 3; Judicature Amendment Act 1966, s 3; and Judicature Amendment Act (no 2) 2005, s 5(1), respectively.