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Maverick Litigants.Indb Maverick Litigants Maverick Litigants A History of Vexatious Litigants in Australia 1930–2008 Simon Smith Maverick Publications 2009 Published in Melbourne by Maverick Publications ABN 91374120334 13 Scott Street Elwood, Victoria 3184 Australia T: 03 9531 5278 E: [email protected] Copyright © Simon Smith 2009 All rights reserved. Without limiting the rights under copyright above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted in any form or by any means (electronic, mechanical, photocopying or otherwise) without the prior permission of the publisher. While every effort has been made to trace copyright in photos, copyright owners who have not been acknowledged should contact the publisher. National Library of Australia Cataloguing-in-Publication entry Smith, Simon. Maverick Litigants: a history of vexatious litigants in Australia 1930–2008 / Simon Smith. 1st ed. ISBN 978 0646514642 (pbk). Includes index. Bibliography. Actions and defences — Australia — History. Civil procedure — Australia — History. Pro se representation — Australia — History. Frivolous suits (Civil procedure) — Australia — History. 347.9405 Edited and indexed by Sandra McCullough, Kyneton Typeset by Last Word, Melbourne Printed and bound by BPA Print Group Pty Ltd, Burwood, Victoria, 3125 Australia Cover: Supreme Court building, corner of William and Little Bourke Streets, Melbourne. Melbourne Truth 1931. Courtesy State Library of Victoria. Design by Dominique Hanlon, Motion Advertising and Design Pty Ltd. For Bronwyn Table of contents Acknowledgements ix Tables and images xi Part One: Background to the vexatious litigant sanction Chapter One Introduction 3 Chapter Two Different dimensions of the vexatious litigant 11 Chapter Three Judicial and statutory control of vexatious litigants 33 Part Two: Six maverick litigants Chapter Four Rupert Frederick Millane: Inventor, entrepreneur, crank 69 Chapter Five Ellen Cecilia Barlow: Legal pioneer 105 Chapter Six Elsa Davis: Entertainer, composer, eccentric 131 Chapter Seven Goldsmith Collins: Footballer, fencer, maverick litigator 173 Chapter Eight Constance May Bienvenu: Animal welfare activist 211 Chapter Nine Dieter Soegemeier: Don Quixote at law 245 Chapter Ten Conclusion 273 Appendix: Australian vexatious litigant register (1930–2009) 286 Select bibliography 293 Index 303 vii Acknowledgements This book has been fun. It grew out of my discovery in the 1980s that a small group of people called vexatious litigants haunted the superior courts. Indeed, as a lawyer then working in Springvale Victoria at Australia’s fi rst and busiest community legal centre, I was part of the vexatious litigant circuit. Well-meaning Supreme Court judges would refer persistent litigants direct to me for free grass-roots advice, presumably in the hope that I would either advise successfully against further action or take the case on and shape it for a fi nal determination. I was never successful. However, I was intrigued by these litigants who had such unquestioning faith that the legal system would deliver them “justice” despite constant rebuffs. They would arrive bearing a suitcase stuffed with papers and clippings and display endless patience and courtesy. Although invariably their matters were out of time and faced other formidable legal hurdles it was sometimes possible to detect an underlying injustice. It was clear that there was a story to be told. I resolved that when circumstances permitted I would return to them and perhaps write a book. In July 2004 I began the task. It has taken me to all parts of Australia and introduced me to some fascinating Australians. Over nearly four years of part- time research and writing I have intersected with many people and been shown remarkable generosity. I have been to Nambour in Queensland, looking for litigant documents and stories. There, stumbling among the cobwebs under a “Queenslander” and sorting through decades-old court papers, I was also shown such incidental treasures as a piece of the Eureka fl ag. I have been to Perth in Western Australia, where I was given photos of that State’s fi rst vexatious litigant and stories to match. I have been to the nation’s capital, Canberra, where the records of the High Court, the National Archives and the National Library gave up remarkable treasures. And I have been to Prato, Italy, for the “Access to Justice” conference that confi rmed that vexatious litigants are an international phenomenon. My research efforts have benefi ted greatly from the assistance of many people and organisations with their unstinting interest and generosity of time. Unfortunately, there are too many to name specifi cally lest I offend by inadvertent omission. First, there are the descendants and families of litigants, practitioners, former judges, former politicians and friends of the litigants who allowed me to interview them. Their knowledge and insights were invaluable. Then there are the many libraries, archives and other organisations that maintain and preserve the nation’s legal heritage through documents and books and make them available for research. Here, I specifi cally acknowledge the ix x MAVERICK LITIGANTS generosity of the following who have granted permission for me to reproduce various images: John Barlow; Berta Butler; Graeme Bienvenu; Sir Zelman Cowen; the Elsa Davis Collection; Alan and Barbara Leary; Brendan and Bernard Millane, the National Australian Archives; the Royal Society for the Prevention of Cruelty to Animals of Victoria and the State Libraries of Victoria and Western Australia. I also appreciate the wise counsel and assistance of numerous friends and colleagues during this journey. However, I particularly recognise and thank Dr Elise Histed for her support as PhD supervisor and Sandy McCullough for her generous help with production editing. Finally, special thanks to the Naylor girls in my life: Bronwyn, Rebecca and Jessica. Your tolerance, interest in and understanding of my pursuit of the vexatious made it all possible. Now for the documentary! Simon Smith August 2009 Tables and images Tables of vexatious litigant registers 1. Victorian register (1928–2008) 49 2. Western Australian register (1930–2007) 51 3. South Australian register (1935–2009) 52 4. High Court register (1943–2007) 53 5. Queensland register (1943–2007) 54 6. New South Wales register (1970–2007) 55 7. Federal Court register (1979–2007) 57 List of images Millane Rupert Frederick Millane 69 Kerosene tin house 84 £2000 tin house 85 Millane and the legal earthquake 89 Millane drives stage coach through bus law 93 Millane defamed? 99 Barlow Ellen Cecilia Barlow 105 The Ellen Barlow law 123 Exit Mrs Barlow 124 Thomas Barlow in Bruce Rock 129 Davis “Baby Olga” and Edna Davis at the keyboards 133 Edna Davis and “Baby Olga” Egypt poster 135 “World’s Wonder Xylophonist” in court 138 Edna Davis weds John Isaacs 140 1 Goodall Street, Auburn 141 Isaacs’ maintenance litigation 152 Laszloffy wedding photo 157 Feting the Russians 159 Elsa on TV with Don Lane 164 Appeal in the “dog case” 165 Davis loses defamation case against The Age 169 xi xii MAVERICK LITIGANTS Collins Goldsmith Collins 174 The fence dispute 178 Ex-footballer banned 192 Bienvenu Constance May Bienvenu 215 RSPCA uproar 221 RSPCA in a tangle 227 Jeff and the RSPCA tangle 227 The High Court rules! 239 Soegemeier Dieter Soegemeier 246 Soegemeier poll challenge 251 Whitlam freed! 254 PART ONE Background to the vexatious litigant sanction CHAPTER ONE Introduction The reasonable man adapts himself to the world: the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man. George Bernard Shaw (1903) Access to justice is a fundamental tenet of a democratic society. Historically, its roots trace to the Magna Carta in 1215 when the Barons, arguably the fi rst litigants in person, secured from King John the right to petition the Crown about their grievances. Since then, the common law has evolved a judiciary independent from the Crown that ensures access to redress for the ordinary citizen. In modern times, particularly since the 1970s, access has been promoted further through justice initiatives such as community legal centres, legal aid, Law Handbooks, freedom of information (FOI) laws, tribunals, industry ombudsman schemes and online tool kits. More recently, access has been further enhanced through the development of global human rights principles. The reverse side of access to justice occurs when the courts take the unusual step of formally declaring a person who has repeatedly abused their processes to be a “vexatious litigant”. This means that person can no longer initiate any further legal proceedings without fi rst obtaining the permission of the court. Although obscure, the sanction was fi rst enacted in England as the Vexatious Actions Act 18961 and wholly adopted in Australia (Victoria) in 1 59 & 60 Vict c 51. It read: 1. It shall be lawful for the Attorney-General to apply to the High Court for an order under this Act, and if he satisfi es the High Court that any person has habitually and persistently instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings, whether in the High Court or in any inferior court, and whether against the same person or against different persons, the court may, after hearing such person or giving him an opportunity of being heard, after assigning counsel in case such person is unable on account of poverty to retain counsel, order that no legal proceedings shall be instituted by that person in the High Court or any other court, unless he obtains the leave of the High Court or some judge thereof, and satisfi es the court or judge that such legal proceeding is not an abuse of the process of the court, and that there is prima facie ground for such proceeding. A copy of such order shall be published in the London Gazette. 2(1) This Act shall not extend to Scotland or Ireland. 3 4 MAVERICK LITIGANTS 1928.2 However, we know little about the sanction and this lack of knowledge raises many questions.
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