VEXATIOUS LITIGANTS: A REPORT ON CONSULTATION WITH COURT AND VCAT STAFF

Dr Ian Freckelton SC1 1 October 2008

1 The author records his gratitude for the assistance given during the interviewing process and the feedback provided by Helen Ross-Soden. Contents

Methodology ...... 3

Distinctions in terminology ...... 4

Usefulness of retaining the term “vexatious litigant” in Victorian legislation...... 5

The test for declaration of a person to be a “vexatious litigant”...... 5

Profiles/common characteristics of vexatious litigants...... 6

Commonness of undeclared vexatious litigants in Victoria ...... 8

Significance of the problem posed by vexatious litigants for Victoria’s courts and tribunals...... 9

Adequacy of Victoria’s declaration system of vexatious litigants ...... 13

Alternative strategies for addressing the issues raised by vexatious litigants...... 15

Need for reform to Victoria’s laws in relation to vexatious litigants ...... 16

Role of the Attorney-General in applying for declaration of vexatious litigant status ...... 17

Family Violence Protection Bill 2008 (Vic) ...... 19

Potential for declaration of vexatious litigant status outside the Supreme Court .. 20

The Charter of Human Rights and Responsibilities Act 2005...... 20

Mutual recognition of declarations of vexatious litigants ...... 21

Vexatious litigants in the criminal context: Private prosecutions...... 21

Conclusions...... 22

Appendix One: Questions for Court and VCAT Staff Interviewees...... 25

2

Methodology

Approval having been gained from the Department of Justice Human Research Ethics Committee, the methodology employed in the consultation process was to communicate with the Chief Justice of the Supreme Court, the Chief Judge of the County Court, the Chief Magistrate and the President of VCAT to obtain permission to consult directly with court and tribunal staff designated as appropriate for that purpose by the respective head of the jurisdiction.

By appointment Dr Ian Freckelton SC, and a staff representative from the Law Reform Committee, met with each group of staff in a focus group format. The discussions ranged from an hour and a half to two hours and canvassed the majority of the “Questions for Court and VCAT Staff” at Appendix One to this Report.

At the commencement of each consultation, Dr Freckelton explained that notes would be taken of the discussions and of the opinions expressed. The identity of those participating would be kept confidential, so far as that was possible, by anonymising those who participated. However, a Report summarising the different perspectives of court and tribunal staff consulted would be generated, circulated to participants and would form one of the bases for the Law Reform Committee’s report on Vexatious Litigants which will be tabled in the Victorian Parliament in December 2008.

All staff signed a consent form that explained the nature of the research and confirmed the staff members’ preparedness to participate and keep confidential information discussed in the course of the focus group. They were informed that if they had any queries or concerns about the research, they should contact the Secretary to the Department of Justice Human Research Ethics Committee.

Four focus groups were held with court and tribunal staff:

3 • Supreme Court on 19 June 2008; • County Court on 19 June 2008; • Magistrates’ Court on 22 June 2008; and • VCAT on 12 August 2008.

Each court and VCAT made available a generous number of staff to speak to the Interviewer. Participants to the semi-structured interviews were candid and very helpful. However, inevitably, different views during each session were expressed by different members of staff. Therefore, although views in this Report are attributed to staff from particular jurisdictions, it should not be assumed that these are the official views of the court or tribunal or that all members of staff share the views to which reference is made. In addition, it should not be concluded that the results of the interviews have produced statistically sound data; the contents of this Report are simply a summary of the views of some persons who attended the focus groups.

To maintain anonymity of participants, so far as possible, gender specific descriptors have been avoided.

Judges of the Supreme Court and County Courts, Magistrates and members of VCAT have also been were consulted. Their views are canvassed in a separate Report.2

Distinctions in terminology

Staff were concerned to distinguish between vexatious litigants, declared and undeclared, and

2 See I Freckelton, “Vexatious Litigants: A Report on Consultation with Judicial Officers and VCAT Members” (2008) report for Victorian Parliament Law Reform Committee.

4 • Unrepresented litigants;

• Mentally ill and personality disordered litigants; and

• persons with emotional difficulties and behavioural problems that are manifested in relation to a particular case.

Staff used different expressions on occasions to differentiate between “difficult”, “persistent” and “vexatious” litigants.

Usefulness of retaining the term “vexatious litigant” in Victorian legislation

Supreme Court staff expressed reservations about the term “vexatious litigants” but did not propose a specific alternative. Other court and tribunal staff did not comment on the issue.

The test for declaration of a person to be a “vexatious litigant”

There was general agreement by all court and tribunal staff that the language in s21 of the Supreme Court Act 1986 (Vic)3 should be modernised. They preferred the criterion

3 (1) The Attorney-General may apply to the Court for an order declaring a person to be a vexatious litigant. (2) The Court may, after hearing or giving the person an opportunity to be heard, make an order declaring the person to be a vexatious litigant if it is satisfied that the person has- (a) habitually; and (b) persistently; and (c) without any reasonable ground- instituted vexatious legal proceedings (whether civil or criminal) in the Court, an inferior court or a tribunal against the same person or different persons. (3) An order under subsection (2) may provide that the vexatious litigant must not without leave of- (a) the Court; or (b) an inferior court; or (c) a tribunal constituted or presided over by a person who is an Australian lawyer do the following- (d) continue any legal proceedings (whether civil or criminal) in the Court, inferior court or tribunal; or

5 simply to be bringing litigation “frequently and without reasonable grounds” as is used, for example, in the High Court Rules.4

Profiles/common characteristics of vexatious litigants

Supreme Court staff commented that vexatious litigants often come over as believing that justice is “their right”, however much court or court staff time it takes and they do not believe they should have to pay for anything related to their proceedings. A characteristic of such litigants is that they “appeal every tiny little decision which stretches it out forever”. They are indifferent to costs orders and do not comply with them; often they would not be able to do so, even if they wished to. Several staff members noted that these litigants have little respect for the court or its staff. They often lodge documents at the last minute – for instance, at 5 minutes before closing time on the last day. They are frequently somewhat disorganised but some engage in lodgements of this kind for tactical reasons. They often have unusual formatting in their paperwork, using bold type and heavy capitalisation for emphasis. Sometimes they make up their own court forms.

Supreme Court staff stated that these litigants can be threatening. They tend to be “very

(e) commence any legal proceedings (whether civil or criminal) in the Court or any specified inferior court or tribunal; or (f) commence any specified type of legal proceedings (whether civil or criminal) in the Court or any specified inferior court or tribunal. (4) Leave must not be given unless the Court, or if the order under subsection (2) so provides, the inferior court or tribunal is satisfied that the proceedings are not or will not be an abuse of the process of the Court, inferior court or tribunal. (5) The Court may at any time vary, set aside or revoke an order made under subsection (2) if it considers it proper to do so. (6) The Attorney-General must cause a copy of any order made under subsection (2) to be published in the Government Gazette. (7) The Court, when exercising a power under this section, must be constituted by a Judge.

4 Rule 6.06 of the High Court Rules 1994 (Cth) provides that: “6.06.1 Upon the application of a Law Officer, the Australian Government Solicitor, or the Principal Registrar, the Court or a Justice, if satisfied that a person, alone or in concert with any other, frequently and without reasonable ground has instituted or has attempted to institute vexatious legal proceedings may, having given that person an opportunity to be heard, order that he or she shall not, without the leave of the Court or a Justice, commence any proceeding or make any application in the original or the appellate jurisdiction of the Court.”

6 aware of their rights, very knowledgeable about court processes. Sometimes they are aggressive.” The cases of vexatious litigants “are their life”; they are obsessed by them and by the details of their litigation. Generally they are not legally represented but many are somewhat paranoid. They do not want legal representation – “the advice they get is not what they want to hear.” They say things like, “I’ve been to ten solicitors. They’ve all said I have no case but they’re all wrong.” Mostly they are not mentally ill but rather have a personality disorder or one kind or another. However, such litigants often do not acknowledge that they have a problem; trying to force them into getting help can have problematic consequences and actually make the situation worse. The court staff noted that guardianship proceedings can also aggravate an already difficult relationship between the Court and the litigant.

County Court staff too said that vexatious litigants, mostly those who have not been declared, are a problem for them. Many such litigants have a long history in the County Court. Litigation “is their life”. They are generally self-represented and will want multiple subpoenas issued, often to Ministers and the Chief Commissioner; this requires advice to be obtained from a judge as to what should be done: “Is it up to a court registrar to decide what’s vexatious or ridiculous?” Some such litigants show clear signs of mental illness; others are just obsessed and their paperwork is muddled and they “waffle” for lengthy periods of time, not having any clear focus to their thinking or their litigation documentation. It was stated that such litigants are more commonly encountered in matters involving family violence disputes on appeal from the Magistrates’ Court and local council matters.

Magistrates’ Court staff observed that the vexatious litigants whom they encounter tend to have a problem with “the State” – they feel that the State is against them. There is an original grievance that they cannot let go of. Some are mentally unwell or have a personality disorder. Many are from disadvantaged socio-economic backgrounds and have lower levels of education, especially in family violence cases. They can be difficult at court so some registrars list their cases early in the day to avoid the problem of their

7 being at court in the waiting area for a lengthy period. A classic problem is where there are warring families in the family violence context and multiple applications will be instituted by “both sides”.

VCAT staff felt that they see some people who fit the current criteria for being declared vexatious, although not too many. They spoke of encountering people who are repeatedly abusive, ill-tempered, suspicious, irate and chameleon-like – “they start off nice and then deteriorate.” Staff said that “you can recognise such people at the counter or on the phone – you get a sort of sixth sense.” VCAT staff observed that these litigants talk a lot and can consume a lot of staff time. It was noted that some of them are psychiatrically unwell. They are particularly to be found in litigation on appeal from the Mental Health Review Board where it has made decisions about involuntary inpatient or outpatient status under the Mental Health Act 1986 (Vic) and cases going into the Guardianship Division. Such people are often very “attention-seeking” and some are “cunning”. However, staff emphasised that dealing with “problematic litigants”, a category that includes vexatious litigants, “comes with the territory. They are managed and treated with dignity and patience” by VCAT staff. Sometimes a registrar will place on a person’s file that all correspondence or calls from a particular litigant is to go to a particular staff member or registrar. This provides consistency of approach and stops any “divide and rule” strategy on the part of the person.

Commonness of undeclared vexatious litigants in Victoria

Supreme Court staff estimated that currently there are about two dozen undeclared vexatious litigants and “only a handful” in the Court of Appeal but that they consume a significantly disproportionate amount of court staff and court time.

County Court staff said that the numbers of active undeclared vexatious litigants in their Court varies somewhat. It was “high” in 2006, then there was something of a lull, for no

8 particularly clear reason in 2007, and the numbers are back up in 2008. Currently a few people whom staff would classify as “vexatious” within the terms of the Supreme Court definition, come in to the registry each month.

Magistrates’ Court staff said that they had all encountered vexatious litigants, but said they coped reasonably well with them. They thought there were a couple of undeclared vexatious litigants at each major Magistrates’ Court.

VCAT staff felt that there are comparatively few vexatious litigants at VCAT. Relatively few people try to reinstitute proceedings after initially being unsuccessful; those few that try to do so are quite effectively dealt with – “They know that VCAT is their last resort, their last opportunity, and if their application gets knocked back, they know that’s it.” However, another staff member commented: “The ones I find frustrating are the ones where it’s been to a hearing and then they bring another application [on the same matter].”

VCAT staff stated that there are not many persistent/problem litigants – two to three people, for instance, over the last six years which, “when there are 90,000 cases per annum, is not many.”

Significance of the problem posed by vexatious litigants for Victoria’s courts and tribunals

There was a marked division of attitude between Supreme Court and County Court staff on the one hand identifying real problems with vexatious litigants and Magistrates and VCAT staff on the other who tended not to classify vexatious litigants as a significant problem in their jurisdictions.

9 Supreme Court staff were emphatic that vexatious litigants are a significant problem. They said that mostly they try not to speak too much to declared vexatious litigants but undeclared vexatious litigants, whom they have no option but to deal with, take up a lot of their time and cause problems for defendants and judges alike. Now that the Supreme Court has nominated a Self-represented Litigants Coordinator it has become somewhat easier: “We just don’t have the time to deal with them [at the regular counter]. They almost become a nuisance. They almost demand that you help them.” Staff observed that some undeclared vexatious litigants are intimidating. They made the point that when persistent litigants come to the Registry, it affects others: “They speak very loudly and intimidate staff. Not all staff can deal with people who get aggressive.” When they come in, “there’s going to be yelling and screaming and they’re going to be a disruption to the registry.” One staff member commented that such litigants need to be handled “with kid gloves”.

Supreme Court staff observed that if the Attorney-General is slow to bring an application to have someone declared a vexatious litigant, then it becomes the court’s problem: “It takes up court resources and affects other people’s cases as it delays or perhaps even sometimes prevents them from getting their own access to justice.” Supreme Court staff raised the issue of which is the better option – to restrict persistent litigants’ access to justice, or to not restrict them but have their actions restrict others’ access to justice?

County Court staff emphasised that although the numbers of vexatious litigants in their jurisdiction are not high, such persons are very time-consuming because of the time required to listen to them politely and deal with their problems and their grievances: “You go out of your way to go through things more thoroughly, more diligently, explain it all, because you know who they are”. Staff observed that it is difficult to decline to receive their documents because they are so aggressive and are prone to make complaints if they do not get their way. It is also difficult for staff in the context of requests to issue subpoenas to people such as the Prime Minister, Archbishops and the Attorney-General.

10 County Court staff said that junior staff members are particularly at risk from such litigants who can be abusive, perhaps because they can identify some staff as more vulnerable than others. If senior staff hear junior staff being harassed by persistent litigants then they “get out there ASAP”. Female staff members can also be targeted by such litigants. There is a panic button for major threats but generally litigants do not overstep to this degree. The practice is that if a junior staff member cannot deal with a situation adequately, they bring in a more senior staff member who generally deals with the person after that. But this may come at a personal cost. As one County Court staff member commented: “dealing with them can take a lot out of you. You put up that stony or impassive exterior but it’s hard.”

Magistrates’ Court staff said on a number of occasions that difficult litigants are simply part of the Magistrates’ Court landscape: “it is just part of what we do”. They made the point that approaches of the Magistrates’ Courts are more overtly “therapeutic”5 than those of other courts and it is regarded as a standard part of staff members’ responsibilities to deal with repeat litigants who are difficult. The strategy is to provide them with assistance but to be firm and consistent, working toward getting their cases on to hearing and decided as quickly as possible. Because the jurisdiction is relatively lacking in technicalities and procedural complexities, the staff reported that this works quite well.

Magistrates' Court Staff commented that people behave differently (better) toward a Magistrate than they do toward a registrar. They commented that some litigants refuse to

5 Referring to the concept of “therapeutic jurisprudence” which identifies the potential of the law to be both counter-therapeutic and sometimes pro-therapeutic in the way in which its is constructed by legislation, is interpreted by courts and tribunals administered procedurally in the course of hearings. “Therapeutic jurisprudence” has given a fillip to the development of “specialist courts”. See generally DB Wexler and BJ Winick (ed), Law in a Therapeutic Key (Carolina Academic Press, Durham, 1996); BJ Winick, The Right to Refuse Mental Health Treatment(American Psychological Association, Washington DC, 1997); BJ Winick and DB Wexler (ed), Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts (Carolina Academic Press, Durham, 2003); K Diesfeld and I Freckelton (ed), Involuntary Detention and Therapeutic Jurisprudence: International Perspectives on Civil Commitment (Ashgate, Aldershot, 2006); C Slobogin, Minding Justice: Laws That Deprive People with Mental Disability of Life and Liberty (Harvard University Press, Cambridge, Mass, 2006); D Wexler (ed), Rehabilitating Lawyers: Principles of Therapeutic Jurisprudence for Criminal Law Practice (Carolina Academic Press, Durham, 2008).

11 take a refusal from a female member of staff and demand to see “the boss”. They observed that there is a cross-section of “persistent litigants” who are very well versed in their rights.

Magistrates’ Court registry staff told the Interviewer that they were more concerned about the effect that a persistent litigant can have on the “victim”/defendant than the effect on themselves. One staff member provided an example of how the staff member deals with one persistent litigant: “She can come in every day if she wants to. I don’t care. But when she comes in she wants to stay for three hours. I just answer all her questions and then say, ‘We’re done, that’s everything, see you on the hearing day,’ and walk away. I just ignore her and tell the others [registry staff] to ignore her too and she usually just goes. Security know her too and if she won’t go they’ll come and walk her out.”

Magistrates’ Court staff said that they try to build up a rapport with persistent litigants. They explain that they will do “what they can”, thereby trying to portray themselves as “a good guy”. One staff member said he tells them: “I’ll do everything I can.” He explains but he makes sure he is firm. He will listen to them but he ensures that he always maintains control of the situation.

Staff said that Magistrates’ Courts build up a good rapport with local legal services. A consequence of this is that they can often get their help with dealing with self-represented litigants who verge on the vexatious. However, it was noted that a lot of persistent litigants do not want legal advice: “They know what their position is.”

VCAT staff expressed a similar perspective to that of Magistrates’ Court staff. They did not feel they had dealt with many declared vexatious litigants but regarded handling people who are difficult, even repeatedly difficult, as a core part of their role, given the jurisdiction of VCAT. One staff member said that “Dealing with problematic litigants

12 comes with the territory. It is like the police officer who complained because he was forever having to deal with crooks – people who dislike dealing with problem litigants are perhaps in the wrong job, because it is part of the job. In courts, you’re bound to have unhappy people.”

One staff member commented: “They’re not a pain till they’ve been here 10 or 20 times.” Another staff member said: “They’re abusive, ill-tempered, suspicious, irate, chameleon- like. They start off nice and then they deteriorate.” A staff member commented of one woman: “She would just ring up and start shouting from the word go, demanding to speak to the registrar.”

However, VCAT staff were unanimous that they felt that persons such as these individuals are for the most part dealt with adequately. However, the staff members making this observation acknowledged that they are senior staff, the management, and they could not say definitively whether the staff on the ground would agree with them or whether they would feel “snowed under” by such people.

One staff member said they could spend 20-30 minutes with one inquiry. “We don’t have the resources to do that. If that person rang up four times in a week, that’s two hours a week.” It was noted that some litigants will call again and again to get different people, trying to get an answer that they like. It escalates: “You know the names, you see the roll of the eyes and know they’ll be on the phone for 10 minutes.” VCAT staff do have an alert system on the phones to let management know about “problem litigants”.

Adequacy of Victoria’s declaration system of vexatious litigants

Supreme Court staff observed that a number of vexatious litigants seemed to “fly under the radar” and have never been the subject of an application for declaration by the

13 Attorney-General. They were concerned at the delay in applications being made for litigants who are wasting the Court’s resources to be declared vexatious.

They observed that there appeared to be a variety of ways in which those the subject of declaration applications come to the attention of the Attorney-General – registry staff, defendants, and constitutional challenges that of necessity involve the Attorney-General. They were not sure if the fact that some litigants are declared vexatious by Supreme Courts interstate brings them to the attention of the Victorian Attorney-General.

One VCAT staff member described the current vexatious litigant laws as being, “Like a sentencing, where you have hanging at one end, freedom at the other, and nothing in between.” Currently the laws either restrict all access to the courts, or they can do nothing – there is no middle ground. “If you wrap it up tightly to protect it from abuse, you run the risk of wrapping it up so tightly that the ordinary person can no longer access it.” There needs to be a balance between the time and costs that persistent litigants take up and access to justice.

Magistrates’ Court staff wanted to know if there is a list of vexatious litigants so that all staff members could have access to it. If there is such a list, they were not sure how it could be accessed and who is responsible for maintaining it. One Magistrates’ Court staff member said that they had asked the Supreme Court for the list of declared vexatious litigants as they were trying to find out if a particular person was a declared vexatious litigant. This staff member said that even finding out if this particular person was a declared vexatious litigant was very difficult. The suggestion was made that the list “should be on a webpage; just Google it and it should be there.”

14 Alternative strategies for addressing the issues raised by vexatious litigants

Supreme Court staff were positive about the role of the Self-represented Litigants Co- ordinator. Although he sees relatively few of the cohort of undeclared vexatious litigants, he does see many distressed, angry and confused litigants who may have the potential to become vexatious. He assists them with forms and they tend not to become angry with him. He is seen as a resource, as a helper. The Prothonotary sees more vexatious litigants who may choose not to avail themselves of the services of the Self-represented Litigants Co-ordinator.

Supreme Court staff suspected that it would be constructive for there to be a Self- represented Litigants Co-ordinator in other jurisdictions. County Court staff identified merit in creating such a position their court. Magistrates’ Court staff were not sure, though, that such a position was necessary for their court and noted that their court has branches throughout the State, making the role of such a person difficult to discharge.

Supreme Court staff suggested that simplification of court processes, reducing interlocutory steps and technicalities which absorb the attention of vexatious litigants would be useful. Similarly, where possible, use of less formal and mediation style hearings could reduce the high levels of tension that often are characteristic of the behaviour of vexatious litigants.

Supreme Court staff expressed concern about the routine waiver of fees for litigants claiming to be indigent. Most persistent litigants know about the fees waiver: “It is their second question. They have already done this in the lower courts.” They suggested that when litigants wish to have fees waived, they might be referred to a free bank of solicitors to assess and advise on the validity of their claim.

15 How to deal with difficult people is part of the induction package for Magistrates’ Court registrars, and there is also ongoing professional development about dealing with difficult complainants. Magistrates’ Court staff said that there a number of programs about dealing with people’s issues which can be useful too in relation to handling vexatious litigants.

VCAT staff said that they would appreciate more training and expert guidance about how to deal with a number of kinds of “difficult litigants”. One commented: “I would like to see more training to help staff deal with difficult people. The more experienced staff aren’t always around to deal with them.” VCAT staff also said they would benefit from a computer system that enabled them to identify the various forms of litigation engaged in by litigants across Victorian jurisdictions.

Magistrates' Court staff noted that if the forms are correct then registry staff have to issue a complaint regardless of the merit of the case, but then, when defendants receive it, they can apply to have it struck out. It would be constructive, they said, to be able to refer cases to a Magistrate before having to issue a complaint. They stated that it is a very difficult conversation to have when it is necessary to refuse a complaint, but “when you have the rules to back you up it makes it a lot easier.”

Need for reform to Victoria’s laws in relation to vexatious litigants

Supreme Court staff raised and identified merit in the United Kingdom system which utilises both a vexatious litigant declaration system under s42 of the Supreme Court Act 1981 (UK) and the making of “limited” (where a party has made 2 or more applications which are totally without merit ), “extended” (where a party has persistently issued claims or made applications which are totally without merit) and “general” (where the party against whom the order is made persists in issuing claims or making applications which are totally without merit, in circumstances where an extended civil restraint order

16 would not be sufficient or appropriate) civil restraint orders6 where a party makes applications of claims that are “without merit”. They particularly thought that the graduated system could be useful in Victoria.

County Court staff observed that even when people are declared vexatious, this does not stop them from coming to the court registry and asking to inspect files, sometimes for another litigant whom they know or have recently got to know. Magistrates’ Court staff did not explicitly raise the issue of the United Kingdom initiative.

VCAT staff identified merit in a graduated system of civil restraint orders such as employed in the United Kingdom – “Something is required to bridge the gap between being a fully declared vexatious litigant and not”.

Role of the Attorney-General in applying for declaration of vexatious litigant status

Supreme Court staff believed that parties other than the Attorney-General should be able to apply for litigants to be declared vexatious. They were uncomfortable with any idea that judges or court staff should initiate such applications, because of the potential for perceptions of bias. They noted that such applications are complex and often last for several days. However, they accepted that there was a risk that certain litigants (some of them vexatious) would apply for others to be declared vexatious as a forensic tactic. They were unclear as to how litigants who might be the subject of an application that they be declared vexatious come to the attention of the Attorney-General’s attention. They suspected that sometimes it is the defendant or their solicitors. However, so far as they knew, the “informers” were not registry staff or judges.

6 See Practice Direct – Civil Restraint Orders: http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part03c.htm

17 County Court staff tentatively identified merit in the category of applicant for a declaration of vexatiousness being expanded. They were concerned about the delays in applications being made by the Attorney-General and the fact that some people who should be the subject of an application never seem to be.

However, they observed that an application by an opposing party is likely to be viewed by its object as inflammatory and might well provoke some form of retaliation. There is a risk that “the people they are harassing they will accuse of harassing them.” They mooted the Chief Judge/Justice/Magistrate being able to make application or even the Prothonotary but had reservations about all of these options because of the perceptions that applications could cause. Another option by way of an “initiator” they identified was the Secretary of the Department of Justice.

Magistrates’ Court staff identified a difficulty for the Attorney-General bringing as many applications for litigants to be declared vexatious as might be justified because of the appearance of an imbalance of power – the State stopping mentally unwell litigants from having access to the courts. They felt that persons adversely affected by the conduct of vexatious litigants ought to be able to apply for them to be so declared in the Supreme Court. They acknowledged the potential for such a declaration to be appealed to the Supreme Court but felt that at least this would establish a status quo and provide some protection for defendants.

VCAT staff identified merit in the Victorian Government Solicitor’s Office being better resourced so that it might have a better capacity to research people about whose activities court staff are concerned: “It would be good if the court could say: ‘Please look at this person, we think they may be vexatious’ and for the VGSO to be able to do that.”

18 Family Violence Protection Bill 2008 (Vic)

Magistrates’ Court staff expressed optimism about provisions currently before Parliament which, if passed, will apply in the crimes family violence division of their court. Clause 189(1) of the Family Violence Protection Bill 2008 (Vic) creates a power in the President of the Children’s Court and the Chief Magistrate and a Deputy Chief Magistrate, upon application from the Attorney-General or a person against whom complaints or applications have been made under the Act for an order declaring a person to be a “vexatious litigant”. When it is a person other than the Attorney-General who applies for such an order, leave must be obtained and may only be granted if the Magistrate is satisfied there is evidence that there is merit in the application; and the making of the application would not be an abuse of process. Under cl 193 a court may, after hearing or giving the person an opportunity to be heard, make an order declaring the person to be a “vexatious litigant” if it is satisfied “the person has habitually, persistently and without any reasonable ground instituted proceedings under this Act against the same person.” The examples given under the legislation are where the person has persistently and without any reasonable grounds done any of the following:

• made applications for family violence intervention orders against the same family member; • applied for the variation of a family violence intervention order made against a family member; • applied for the revocation of a family violence intervention order made against the person; • appealed against the making of a family violence intervention order, or the conditions of the order, made against the person.

Such an order has the effect that the vexatious litigant cannot without leave of the court make an application for a family violence intervention order, or the variation, revocation or extension of a family violence intervention order, in relation to a person stated in the order or the person's children.

19

However, Magistrates’ Court staff expressed concern that at this stage the regime does not apply to stalking scenarios, which constitute a significant percentage or problematic legislation involving vexatious behaviour in the Magistrates’ Court.

Potential for declaration of vexatious litigant status outside the Supreme Court

Supreme Court staff did not express a clear view on whether courts outside the Supreme Court should be able to hear and determine applications for litigants in their courts to be declared vexatious.

Some County Court staff saw some merit in the potential for the County Court to declare litigants in its court to be vexatious.

Some Magistrates’ Court staff identified merit in the Court being able to declare litigants vexatious, in addition to cases in the crimes family violence area – as a fallback. However, a clear need for such an increase in power was not identified.

No clear position on the issue was articulated by VCAT staff – what support there was for such an extension was “luke warm”.

The Charter of Human Rights and Responsibilities Act 2005

County Court staff expressed an anxiety that the right to fair hearing provision in the Charter (s24) has “muddied the water” in terms of their ability to refuse to accept grossly defective documents from, amongst others, vexatious litigants – “It’s taking a step back

20 from where we were 12 months ago.”

Mutual recognition of declarations of vexatious litigants

Supreme and County Court staff argued for the importance of nationally consistent criteria for declaration of litigants as vexatious. A benefit of this would be the potential for mutual recognition of other jurisdictions’ declarations. County Court staff said: “Yes, if they’re like that up there [interstate/federally] then why would they be different here?” Supreme Court staff noted that, for example, a declared vexatious litigant from Queensland has brought proceedings in Victoria.

Vexatious litigants in the criminal context: Private prosecutions

In relation to people issuing “bizarre” private prosecutions Magistrates’ Court staff said: “You can’t take away the power for members of the public to issue private prosecutions totally, because sometimes such prosecutions do have merit, and the Department of Public Prosecutions can then take it over and have it struck out if it doesn’t have merit. When the Magistrate realises that it’s ridiculous or without merit, they’ll refer it to the DPP to take it over so that they can then have it dropped.”

They commented that there is an obligation on the registrar to ensure that charges preferred comply with the relevant statutes (i.e. that the charge exists, that the Statute of Limitations has not expired, etc) and if it does then they have to issue the charge no matter whom it is against or what the charge is. Staff said that if the registrar feels it is an unmeritorious case, then they will get it listed quickly and it will be taken over by the DPP and it will be struck out.

Supreme Court staff said that an issue that should be looked at is private prosecutions

21 where the persistent litigant charges court staff, and then the Department of Public Prosecutions steps in and has the charges dropped.

Conclusions

There was a fundamental division of view in relation to vexatious litigants amongst those interviewed between staff working for the Supreme Court and the County Court on the one hand and staff working for the Magistrates’ Court and for VCAT on the other hand.

The point was made strongly by a number of staff, though, that it is important to distinguish among “vexatious litigants”, “self-represented litigants” and “mentally unwell litigants”. Some interviewees preferred to use the terms “persistent litigants” and “querulous litigants”.

Staff stressed that there are comparatively few vexatious litigants, whether declared or undeclared, although it was suggested that there is a cohort of such litigants who have not been so declared within especially the Supreme Court and, to a lesser degree, the County Court. There was general agreement that there are comparatively few in the Magistrates’ Court and in VCAT.

However, it was stressed by court staff that such persons consume disproportionate amounts of resources and time for the Supreme Court and the County Court, as well as their staff. Such litigants can be threatening and stressful for staff by reason of being obsessive and intimidating. Court and VCAT staff identified multiple characteristics of vexatious litigants which were consistent and went beyond being “difficult to manage”. However, Magistrates’ Court staff and VCAT staff emphasised that for their jurisdictions such people are “part of the territory” and are reasonably effectively managed by staff most of the time. The majority of staff members in the Magistrates’ Court and at VCAT felt that they had acquired skills in developing rapport with such litigants and in effectively communicating with them, thereby often defusing their levels of anxiety.

22 Nonetheless it is time-consuming and on occasions stressful for staff members, especially some inexperienced staff and some female members of staff who are targeted by such litigants.

Enthusiasm was expressed by most interviewees for further training of staff in relation to development of skills in managing unusually persistent or distressed litigants.

It was generally acknowledged that the test for declaration of a “vexatious litigant” under s21 of the Supreme Court Act 1986 (Vic) is anachronistic and should be amended so that it is made more modern and is on the basis of “frequent” bringing of actions “without good cause” or “without merit”. There was some support for importing the graded system of categorisation of litigants under the Supreme Court Act 1981 (UK) system of “civil restraint orders”.

The role of the Attorney-General in respect of applications for declaration of vexatious litigant status was controversial amongst staff. It was contended by some staff at the Supreme and County Courts that an unacceptable number of vexatious litigants are “flying under the radar” of the Attorney-General and that applications are brought after the passage of too much time and activity by vexatious litigants. Staff were generally in favour of broadening the category of persons able to apply for litigants to be declared “vexatious”. However, there was acknowledgment of the risk of such applications being used as a form of harassment by some defendants and that an increase in declarations would be likely to prompt further appeals.

It was felt by staff that it is important that an interlinked court computer system be developed soon so that, amongst other things, it is possible to plot the activities of undeclared vexatious litigants across jurisdictions. Some staff members had found it difficult to ascertain whether particular litigants had been declared “vexatious”.

The Family Violence Protection Bill 2008 (Vic) will introduce into the Magistrates’ Court a limited regime for persons to be declared “vexatious” within one division of the

23 Court. This is as a result of recommendations both from the Law Reform Commission and the Magistrates’ Court itself because of problems experienced in relation to both serial applications for intervention orders and for variations to intervention orders which have been brought on some occasions without merit and for collateral reasons. Magistrates’ Court staff were generally in favour of this development but were concerned that it does not yet apply to stalking scenarios.

Staff were reserved about the utility of enabling courts and VCAT to have their own powers to declare litigants vexatious within their own jurisdiction. Magistrates’ Court and VCAT staff felt that there was relatively little need for such extended powers although they could perhaps be a useful “fallback” for extraordinary cases.

24 APPENDIX ONE

QUESTIONS FOR COURT AND VCAT STAFF

1. Recognising the terms of reference of the Law Reform Committee, what is your view of the distinctions and/ore associations between “difficult”, “unusually persistent” “querulous”, “mentally ill”, “self-represented” and “vexatious” litigants? 2. Should the term “vexatious litigant” be retained in Victoria’s legislation? 3. What should be the test in Victoria for declaration of a person to be a “vexatious litigant”? 4. What in your experience are the profile/common characteristics of vexatious litigants? 5. What do you think is the relationship, if any, between mental illnesses/personality disorders and vexatious litigants. 6. What in your experience causes or exacerbates the behaviour of vexatious litigants? 7. How common are vexatious litigants in Victoria’s courts and tribunals? 8. How significant a problem are vexatious litigants for Victoria’s courts and tribunals? 9. How often do judicial officers and court employees deal with vexatious litigants? 10. Are vexatious litigants more common in some types of disputes/divisions of the court/tribunal than others? 11. Are they becoming more common and/or a bigger problem? 12. What effects in terms of costs and other impacts do vexatious litigants have upon courts, judicial officers and court staff? 13. Do vexatious litigants have indirect effects upon others, such as parties to proceedings and persons/entities associated with parties? 14. Have you encountered particular instances of litigation brought by a person who might be described as a “vexatious litigant”? 15. Does Victoria’s definition of vexatious litigants adequately catch those who are causing difficulties to the court/tribunal system through engaging in repeated unmeritorious litigation? 16. Are Victoria’s laws in relation to vexatious litigation litigants adequate for their purpose? 17. Are Victoria’s laws in relation to vexatious litigation litigants being sufficiently invoked/applied? 18. What strategies (including specific orders, striking out of actions, imposition of costs and referral for assessment/counselling) have been developed/have been implemented in your court/tribunal to address the issues raised by vexatious litigants? 19. Have they been successful? In what way? 20. Have they been evaluated? If so, how?

25 21. Are there other strategies which could usefully be considered? 22. Are Victoria’s laws in relation to vexatious litigation litigants in need of reform? If so, how do you think they could be improved? 23. Should the Attorney-General be the only person able to be able to apply for a person to be declared a vexatious litigant? Should others, including parties to litigation have that role? 24. Should courts and tribunals have the power to impose conditions upon a person’s right to institute litigation, when they have not been declared vexatious? 25. Should courts/tribunals other than the Supreme Court have the power to declare a person a vexatious litigant? If so, what criteria and procedures should be employed so as to assure consistency of approach? What role, if any, should the Attorney-General have? 26. What appeal mechanisms should exist for declarations of vexatious litigant status? 27. How effective is the process of permitting declared vexatious litigants to apply for leave to commence litigation? 28. Are you of the view that this option of application for leave has proved problematic and/ or been abused? 29. What rights to representation should declared vexatious litigants have? 30. How do you anticipate the Charter of Human Rights and Responsibilities Act 2005 (Vic) to impact upon the vexatious litigant provision in s21 of the Supreme Court Act 1986 (Vic)? 31. If a person is declared a vexatious litigant in Australia outside Victoria what impact, if any, should that have upon their entitlement to institute litigation in Victoria? 32. Are there mechanisms/laws/legal processes that can be used to reduce the adverse impact of vexatious litigants other than their being so declared, without unreasonably limiting access to the courts?

26