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As Lord Woolf noted, New Zealand and Australian authority is firmly against the
existence of any "extended" Grepe v Loam jurisdiction. Thus, in Commonwealth
Trading Bank v Inglis (1974) 131 CLR 311, the applicant sought an order "pursuant to
the inherent jurisdiction" of the Court that no legal proceedings should be instituted or
applications in existing proceedings made or appeals lodged by the respondents or
either of them without leave of a justice of the Court on the grounds of previous
vexatious conduct. Barwick CJ
held that in the absence of statutory power to make
such an order, the court had no jurisdiction. Cases dealing with abuse of the process at
the interlocutory stages had to be distinguished. As his Honour pointed out :-
"...... the making of unwarranted and vexatious applications in an action which is pending in
the Court is, in our opinion, a matter over which there is an inherent power in the Court to
exercise control. There is an essential difference, in our opinion, between regulating the
conduct of such an action so as to prevent the Court's process from being abused, on the one
hand, and impeding a particular person in the exercise of a right of access to the Court, on the
other hand."
His Honour concluded that while such a power might be justifiable "as a proper
safeguard against abuse of the Court's process", it was apparent :-
" ...... that the Courts, both in England and in this country, have declined to regard themselves
as having power to do so, except where such power has been conferred upon them by an Act
of Parliament or by Rules promulgated under statutory authority."
Notes
Sitting with McTiernan J.
At 319.
At 315. A similar approach was adopted in the Australian High Court in Jones v Skyring (1992) 109
A.L.R. 303. The argument there focussed on whether a rule of court (O 63 r6(1)) applied and
whether it was intra vires the rule-making power and therefore able to support an order requiring
applicants to seek leave before starting fresh actions, appeals or other proceedings. There was no
question of such an order being justified as within the court's inherent jurisdiction.
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