Inventor, Entrepreneur, Rascal, Crank or Querulent?: ’s Vexatious Litigant Sanction 75 Years On

Grant Lester Victorian Institute of Forensic Medicine, Australia

Simon Smith Monash University, Australia

upert Frederick Millane (1887–1969) was Australia’s first declared vexatious litigant. An inventor, entrepre- neur, land developer, transport pioneer and self-taught litigator, his extraordinary flood of unsuccessful litiga- Rtion in the 1920s led Victoria to introduce the vexatious litigant sanction now available to most Australian superior courts. Once declared, a vexatious litigant cannot issue further legal proceedings without the leave of the court. Standing to seek the order is usually restricted to an Attorney-General. It is used as a sanction of ‘last resort’. But who was Millane and what prompted his declaration in 1930? What does psychiatry have to say about the persistent complainant and vexatious litigant? How often is the sanction used anyway? What is its utility and the nature of the emerging legislative changes? Now, on the 75th anniversary of Millane’s declaration, this article examines these issues.

The Making of a Vexatious Litigant such litigants without the court’s prior leave.1 It The Early Years provided the model for similar provisions in most superior court in Australia. In 1930, Rupert Frederick Millane, inventor, entrepreneur, Millane became the first person in Australia land developer, transport pioneer and self-taught declared a vexatious litigant. litigator was, by any measure, an extraordinary Born in 1887, in the suburb of man. A gentle soul, he could spot the ‘big idea’, Hawthorn, Millane was the fourth of five children would promote it determinedly, but could not of Patrick and Annie Millane. He left school in implement. His persistence in using the courts to 1902 aged 15 and by 1906 was established as a protect and promote his ideas went far beyond Motor Agent importing and selling gasoline and reason and led the Victorian government to enact kerosene. A self-taught engineer, in 1907 aged 20, three different Acts of Parliament in an effort to he lodged for approval in a patent curb his activities. One enactment, in 1928, was entitled ‘Improvements in and relating to internal the vexatious litigant provision that empowers the combustion engines’.2 This interest in transport Supreme Court to prohibit issue of proceedings by matters, particularly public transport, would be a

Correspondence to: Grant Lester, Victorian Institute of Forensic Medicine, Fairfield VIC 3078, Australia. E-mail: [email protected]

PSYCHIATRY, PSYCHOLOGY AND LAW VOLUME 13 NUMBER 1 2006 pp. 1–27 1 GRANT LESTER AND SIMON SMITH lifelong passion. In later life, Millane would attrib- regard to his youth and lack of formal engineering ute this interest to his Irish grandmother who he credentials, the submission contained detailed said, rather than pay the £18 demanded by Cobb suggestions for completely revamping the entire and Co for the journey, had walked to ‘inter-urban’ network including the construction of Castlemaine goldfields with her family upon an elevated circular terminus over the Princes Bridge landing as assisted immigrants at Port Henry, Rail Yards.9 Geelong in 1852.3 In the end, the Victorian government purchased only two McKeen cars. They were trialled on Promoter of Petrol Railroad Cars country lines but they were not powerful enough By 1909 aged 22, Millane was promoting himself and proved unreliable.10 The government was wary as the Australian representative for Union Pacific of Millane’s marketing and departmental officers Railroad Company of the and its regularly contradicted his more extravagant claims subsidiary, McKeen Motor Car Company. in internal memos.11 They declined to deal through McKeens had recently started to market single him and dealt direct with McKeen in the United carriage petrol-powered railroad cars and for the States.12 They also refused him access to perform- Victorian government they offered a possible ance data of the two test McKeens, no doubt solution to complaints about the slow and infrequent cautious of how he might use the material.13 train service in the bush. Millane, recognising that McKeens appear to have been similarly wary. They interest, started an enthusiastic sales correspondence made it clear that Millane could not bind their with Premier John Murray.4 company although they permitted him to act as Millane argued that McKeens were the modern their Australian representative and receive a alternative to steam or electrification. His self-typed commission for any cars sold.14 Victoria purchased letters on a self-aggrandising letterhead (including no more McKeens although Millane continued to colour) invariably made expansive claims about the promote and defend them publicly.15 cars and included pages of supporting testimonials full of facts and figures. There is liberal use of capitals Shipyard Entrepreneur for emphasis. His enthusiasm to close a sale and his In March 1917 aged 30, Millane had started to draw lack of insight into the more measured pace of the up plans for a small shipyard in Geelong similar to machinery of government is clear from the increas- those he had seen operating on a visit to American ingly urgent tone of the letters. In July 1909 alone he west coast cities in 1912–1913. He believed he was sent the Premier four full letters, complete with assured of capital support if he could guarantee no typos, which contain detailed personal suggestions ‘labor troubles’.16 Later that year the project suddenly on how the cars might be best employed.5 His grew in size following wartime speeches by Prime urgings continued through 1910, and in 1911, at the Minister Billy Hughes urging an increase in local Premier’s request, the Railway Commissioners met ship building capacity.17 In response, Millane with Millane Their report was not supportive: ‘… in proposed the establishment of a ‘Co-operative Ship returning the attached memorandum they desire to building Company’ based at Corio Quay, North invite the attention of the honourable the Premier to Geelong. The company would be the vehicle for the intemperate character of Mr Millane’s remarks, raising £1,250,000 capital. It would prepare the site which in some cases are distinctly offensive and merit for four slipways, workshops, foundry and engineer- retribution’.6 ing works. It would build twelve 6,300 ton ships and As he became increasingly derogatory of railway sell them for £317,520 or higher price. He calculated management, a wary Premier kept him at arms’ that investors would share a profit on each ship of length7 although he made it clear that his personal £152,520 and was confident that there would be no view was that a motor train should be acquired and industrial trouble as labour would be shareholders in run as an experiment.8 the profit.18 Millane’s passion for McKeen Cars also spilled Millane moved on his scheme with incredible over into the public arena. In 1911 he published a speed despite conceding in his own documentation report advocating their use, complete with route that he was ‘not a shipbuilder, though I know a good map, directed to the Traffic Commission inquiring bit about it’.19 He started to raise money and between into Melbourne suburban rail and tramway systems. July 1917 and June 1918, when he was forced to An extraordinarily confident document, having abandon the idea, he had written seventeen letters to

2 INVENTOR, ENTREPRENEUR, RASCAL, CRANK OR QUERULENT? the Prime Minister and his department.20 As with his public transport system. Here, Melbourne’s cable McKeen endeavour, the letters are full of facts and car and train system was struggling to meet figures, engineering detail and free-flowing ideas. demand generated by expansion, particularly in They refer to the existence of many supporters and the northern and western suburbs. It also suffered his personal ability to mobilise: ‘over 460 experi- regular congestion at key central spots such as enced and willing steel and iron workers, many Flinders Street Railway Station.26 Millane’s experienced on ship construction here ands England, solution, mainly a repetition of an 1877 proposal , Belfast and America, willing to drop their of his father when he was a Crown Lands present occupation and make a satisfactory started Department Surveyor,27 and to be promoted by (sic) ship yard a success’.21 The letters press the League, proposed a reorganisation of the city’s constantly for a meeting with the Prime Minister traffic outlets and inlets and the erection of a new and support from government. central railway station in the vicinity of the For its part the government was less enthusias- Exhibition Gardens.28 In order to lobby support tic. The advice to the Prime Minister was that the for this ‘Direct and Central Railway’, Millane self- scheme was impractical and that Millane’s attempts published a journal called Traffic.29 With a to register the Co-operative name, raise money and subscription set at 1/- and to be published issue a prospectus were in breach of various wartime monthly he claimed: regulations. Indeed, he had been prosecuted and fined on these matters in August/September 1917. ‘TRAFFIC,’ the first and only public railway Millane was advised in no uncertain terms that he and tramway publication attempted in this country, undertaking more than a public should stop promoting the company otherwise object. further legal action would be taken.22 Clearly The object seems ‘TOO BIG’ for some people, convinced of the merit of the scheme, he continued but it is only plain simple railway track — no to promote it well into 1918. He even lodged for difficulties, a little pick and shovel, brick and copyright registration as an original literary work his structural steel work — that means Millions to personally produced prospectus, replete with ship the City improvement, and means commercial photographs, ambitious claims about his personal development and saving of a month per annum ability to manage labour (in capitals for emphasis) to nearly all future users. So WHY NOT rally and a lengthy personal and flattering profile.23 up and join in such a beneficial campaign, and By November 1918 Millane recognised that the later on be in the first train of pioneer support- 30 scheme was dead. He wrote a stinging letter to ers to run over the new route? Acting Prime Minister Watt protesting the govern- The 34-page journal contains advertisements by ment treatment of him and claiming compensation. traders and merchants and extensive newspaper He regretted: quotes on traffic congestion. It is freely illustrated having to take this action, but I am certain that with photographs of busy Melbourne intersections, investigation, impartially, or before proper maps and proposed engineering solutions such as an authority, you will see I was most shamefully elevated rail track along Lonsdale Street out to treated, lost considerable money, as well as Heidelberg.31 Much of the free-flowing copy is in prospects of establishing the finest engineering capitals for emphasis. Millane also invited 24 works and steel shipyards in the country. subscribers to invest with him in the purchase and It stopped short of legal action but it was cry for development of properties along the proposed rail justice and a sign that a new theatre of activity was routes, it being ‘INVESTMENT FREE FROM about to open up. EXTRAVAGANT SPECULATION OR RISK’.32 Although the journal claimed to be supported Rail System Visionary by companies such as Myer (Melbourne) and other In February 1921, undeterred by his shipyard leading merchants and businessmen, there is no setback, Millane returned to his rail network record of it having gone to a second edition. theme with a proposal for the formation of a Possibly, this is connected to the death in June that ‘Traffic League’.25 He was picking up on the year of his father aged 77. The elevated rail track pressures faced by a rapidly growing city in the and the station in the Exhibition Gardens were ‘roaring twenties’ for an accessible and efficient never built.

3 GRANT LESTER AND SIMON SMITH

Omnibus Pioneer saw the changes differently. It was an interference with free market forces. Proprietors indignant,42 By 1922, authorities were grappling with how to 43 44 meet Melbourne’s transport needs. One issue ‘Scotching the Buses’, Hysterical Legislation, Putting back the clock,45 Competition or confiscation,46 being debated through the newspaper columns 47 was the electrification and modernisation of the Housewives protest declared just some of the cable car tramway system.33 Inevitably, Millane newspaper headlines of the period. had a view on this and appeared at public hearings It was into this politically hostile environment conducted by the Railways Standing Committee. that Millane inserted himself having identified the Describing himself as an engineer with American omnibus as his next big commercial opportunity. experience, he favoured an underground electric In October 1924, in what was arguably a politi- conduit system rather than overhead wires. When cally naive intervention, he sought to influence the questioned on whether he had consulted the debate raging over the ‘seat tax’. In his capacity as Tramways Board about the matter, he gave a reply promoter of a new bus firm Highway Motors, he that hints at his growing maverick status. He sent the government a letter that acting Minister 48 replied: ‘The Board resented information coming John Cain used as evidence that buses could in from anyone outside the service’.34 fact pay the proposed tax. In Parliament, Cain Issues of electric conversion were soon described the author as ‘a great authority of the overwhelmed by the belated arrival, in 1923, of subject’49. Although Cain did not name Millane as the petrol omnibus on Melbourne’s roads.35 They the author, the identified residence of Ivanhoe and proved immediately popular with commuters style are both his. The letter, read into Hansard, is because of their route flexibility and speed and full of facts and figures and grand, even exagger- were given a fillip when the tram system went on ated, plans as it describes the ‘contemplated service strike in April.36 However, two new issues soon of a fleet of 45 passenger buses of far superior type dominated. The collapse of tramways revenues to any ordinary buses’.50 from bus competition and the damage suddenly The Legal Challenges Begin caused to the roads by the solid wheels of increas- ing numbers of heavy buses. Throughout 1923 On 1 February, 1925 the new regulatory system got and 1924 newspapers columns were filled with underway. Routes would only be allocated to regis- articles and editorials such as Motor Bus competi- tered buses and allocation would be valid for 12 tion37, Trams v Buses38 and ‘Private enterprise a months. Within weeks, the numbers of buses parasite’39. Under pressure to act, the government running collapsed; down from 320 to 40. moved to control the hitherto unregulated buses. Proprietors blamed taxation costs and lack of route In introducing the Motor Omnibus Bill 1924 security.51 Previously successful bus proprietors Honorary Minister Webber was clear on the announced their closure amidst much resentment.52 government’s purpose: It was into this situation that Millane suddenly suggested a loophole; he had been researching the This Bill has been introduced for the purpose of law on passenger vehicles at the Supreme Court controlling and regulating motor omnibuses 53 with a view to providing safeguards for the Library. On 17 February 1925, appearing for travelling public, and of protecting the railways Highway Motors and on behalf of five bus owners and tramways from unrestricted competition. whose services operated in and around Reservoir in At the same time it will provide municipalities Melbourne’s northern suburbs, he applied at the with funds to assist them in maintaining roads Melbourne District Court for licences under the in their districts. The Bill applies only to Carriages Act 1915 (Vic). He argued that the Motor omnibuses plying for hire within the City of Omnibus Act 1924 (Vic) had not repealed this Melbourne proper, and within an area of 8 earlier Act that could be traced to William IV and miles from the corporate limits of the city.40 earlier, and that it provided an alternative (and The legislation proposed a ‘seat tax’ and gave cheaper) licensing system. He also noted that the control of bus licences, route allocation, designation routes in question had a starting point 8 miles from of stops, passenger limits and related issues to the the city centre and were thus not caught by the new Hackney Carriages Licensing sub committee of the law. He convinced the two Justices of the Peace Melbourne City Council (MCC).41 The entrepre- who made up the court and the licences were neurial bus proprietors and their many supporters granted.54 Millane immediately foreshadowed

4 INVENTOR, ENTREPRENEUR, RASCAL, CRANK OR QUERULENT? further applications and his almost daily applica- their powers and ‘that offended against the Stage tions over the next 3 months become increasingly Carriage Act’. The Town Clerk described this as a bizarre. They included an application for a licence retaliatory ‘act of spleen’.65 The Justices of the Peace to carry three passengers in his 1912 Hupomobile dismissed the case without hearing evidence.66 He car between Mildura and Mallacoota and back, a continued to unsuccessfully issue against them and distance of 640 miles. It was refused.55 Days later he the Tramways Board for the rest of the year.67 As made a blanket application for 1000 licenses. It too well, in what might be interpreted as an effort to was refused as ‘absurd’.56 intimidate dissenting bus proprietors into joining a Other proprietors seized on these developments proposed Stage Coach Operators League, he began and started applying for Stage Carriage licences in to issue against them for not having Stage Carriage Petty Session courts all over the city. The licenses.68 In one such case, counsel for Ventura Commercial Motor Users Association (CMUA) Buses told the court: met with Millane and also decided to seek Stage that a perfectly ridiculous charge has been 57 Carriage licences. Intervening, the government brought against my client. The same informant sent the leading barrister of the time, Owen Dixon has brought a number of ridiculous charges KC58 to argue their case in the Petty Sessions court against various people lately, and the only way against the CMUA legal counsel. Millane then to protect other people from such charges is to withdrew his applications from those of the penalise the informant by awarding costs 69 CMUA. He wanted to go it alone. Dixon argued against him. that the whole of the Stage Carriage Act dealt Toward the end 1925, the government acknowl- particularly with horse drawn vehicles and its very edged that it was having difficulty administering terms were applicable only to horses and coaches. the new legislation. Unlicensed buses were ‘pirat- As such, the Motor Omnibus legislation was based ing’ bus routes, fees were too high but principally upon the assumption that the Carriage Act applied there was a need to tighten the definition of to horses only and the new law should prevail.59 Omnibus to exclude the Stage Carriage option. Magistrate Cohen did not agree and decided that Despite protest meetings by the Stage Coach and cars could be registered as Stage Carriages.60 Motor Transport Owners Association, no doubt Millane would cite this ‘victory’ against the promoted by Millane,70 in December 1925 it government for the rest of his life. introduced and passed what could be described as Emboldened by these events, Millane and a ‘Millane amendment’. It made definitions other proprietors continued to make Stage ‘watertight’ so that omnibuses had to be regis- Carriage licence applications. The government tered, made it harder for litigants to take technical regrouped and moved next to test the validity of points and increased maximum fines thresholds.71 the bus law by having the MCC inspectors launch Millane’s response to the parliamentary clarifi- criminal prosecutions for non-compliance.61 In cation was immediately to lift the level of his particular, they targeted four owners and drivers litigation at both a summary and superior level. In one of which, Samuel Michaelis, was linked to 1926, he regularly issued summonses in the Millane. Michaelis was the beneficial owner Melbourne Court of Petty Sessions against the although the bus was in Millane’s name.62 Again, Lord Mayor, the Police and the Minister for Dixon KC appeared for the government and this Public Works. His claims were creative. An time was successful, although the same magistrate example was one against the Tramways Board for presided. He held that ‘motor buses may not be ‘using cars exceeding 11 inches greater width than run validly as stage carriages’.63 The MCC, as the wheels of cars’.72 This and other summonses licensing authority, then resolved to enforce with would draw heavily on his Supreme Court library vigour the Omnibus law and prosecute unlicensed researches and discovery of the recently enacted buses. In their view ‘ample time had been given to Imperial Acts Application Act 1922 (Vic) that had motor bus owners to comply with the Act’.64 reviewed and confirmed which Imperial legislation As prosecutions and costs mounted against was still law in Victoria.73 Almost using the Act as Millane and his supporters, he refused to acknowl- a primer, his proceedings referred to concepts such edge their legitimacy and went on the counter- as the deprivation of licence without trial and attack. He issued summonses against the two MCC prosecution; to unlawful ejectment and to the inspectors for issuing prosecutions that exceeded rights of British subjects. All were struck out or

5 GRANT LESTER AND SIMON SMITH dismissed for lack of .74 His subsequent on points of law.80 He also starts to move the affidavits and other court documents would quote litigation into the High Court with requests for extensively from that Act. special leave to . His self-typed affidavits in Meanwhile, in the Supreme Court he issued support, peppered with legalese relating to Stage three Supreme Court writs against the Minister of Carriage provisions, are verbose and confusing. Public Works; the Tramways Board and the His applications were all unsuccessful.81 Mayor, Councillors and Aldermen of the Showing their growing frustration, the govern- Melbourne City Council. Newspaper reports of ment moved to solve the Millane problem through the time refer to pages of closely typed claims that a second legislative change. In December 1927 are both confusing and sweeping in their content. they again amended the Motor Omnibus Act to Drawing variously up the Carriage Act 1915 (Vic) increase the penalties for running unregistered and the ‘rights of British subjects under the buses. In introducing the one page Bill into the Imperial Acts Application Act’ they sought, among Legislative Council, the Minister for Public Works other things, penalties against the Tramways and The Hon JP Jones made the target of the legisla- Council for running buses without Stage Carriage tion unequivocally clear: licences and for depriving citizens of roadway use Since the passing of the Motor Omnibus Act in by introducing laws prohibiting left and right 1924 the owner of certain motor omnibuses has hand turns at city intersections. All three were been operating them in the metropolitan area struck out summarily as disclosing no reasonable without a licence, and, notwithstanding that he cause of action75 although in one case when asked and his drivers have been prosecuted no fewer by the Judge whether he intended to engage than 109 times, he continues to operate the proper legal assistance he replied: ‘We would like omnibuses and to treat the Act with contempt. to, if we could get some Barristers who know the His conduct proves conclusively that the exist- difference between an omnibus and a Stage ing penalties are inadequate to enforce the carriage. (Laughter)’.76 provisions of the Act. The chief by laws prose- cuting officer of the City Council, in a report Later that month in yet another review appli- on the subject in June last, states that on practi- cation an exasperated Mr Justice Mann advised: cally every occasion on which the owner and his Although I have every desire to help you, I find driver have appeared before the court a strenu- 82 that it is quite impossible to make any proceed- ous defence has been entered upon. ing out of the papers which will result in Millane was unmoved. Having now got the taste anything. If I made an order it would only land for legal action, in September 1928, he intervened you in further expense and more and more costs. It is quite impossible for a man of your in yet another transport issue confronting mental calibre to conduct legal proceedings to a Melbourne motorists. It was the long discussed successful issue by yourself. I am only telling introduction by the City of Melbourne, of car you again, as you have bee told before, in your parking fees, designed to deal with the growing own interest, that for a very small sum of number of vehicles clogging the commercial money you can see a Solicitor and get what you areas.83 Millane’s interventions were typically require done. It would not be proper for the novel. He charged the Town Clerk and Mayor with Court to oblige you. I cannot give you the order making unlawful threats and menaces by demand- for which you ask. ing the 1/- parking fee.84 In support he quoted the Millane — Could you rule that I could get an Road Toll Act 1835 (UK) and statutes of Elizabeth I order to review if I had a Solicitor? I have and Henry VI.85 He created his own parking another case.77 business by pegging out a miner’s claim for parts of By the end of 1926 the ‘bus wars’ were coming to Queen Street near the corner of Bourke Street and an end. The tramways were no longer losing Collins Street near the corner of Collins Place. money; roads were being improved and most bus Armed with a licence to carry on the business of proprietors were becoming reconciled to the new livery stables and car parking, he had a pamphlet system of regulation.78 Millane took a different printed promoting his new service, only to be prose- view, continuing to seek Stage Carriage licences79 cuted by the police for distributing a pamphlet and assisting other rogue operator/drivers to without showing the publisher’s name and address. review lower court decisions in the Supreme Court He retaliated by prosecuting publishers of all

6 INVENTOR, ENTREPRENEUR, RASCAL, CRANK OR QUERULENT?

Melbourne newspapers for the same offence. When The Patents office did not share Millane’s By-Laws Officer O’Toole removed the miner’s enthusiasm for the concept. In December 1924 it pegs, he found himself prosecuted a number of rejected his application ‘shorn of superfluous times for ‘unlawfully removing survey or boundary verbiage’ for a patent for a ‘Hollow Core pegs contrary to the Mines Act’. None of the Monolithic Concrete Building’. The product was actions were successful, which was the same fate of not an ‘article of new manufacture’ or an outcome the business.86 of ‘skilful ingenuity’. He challenged this rejection Meanwhile, in Heidelberg. but, no doubt preoccupied with Stage Carriage matters throughout 1925, let it lapse until 1926 The Inventor, Local Government and More Legal Challenges when his four chamber applications in the Supreme Court failed on procedural and eviden- By 1912 the Millane family had moved to tiary grounds.92 Locksley Road, Ivanhoe in the then Shire of Despite this lack of official endorsement, in Heidelberg.87 The purpose appears to have been May 1926 Millane started building a large 21- land development and in September 1922, square prototype referring to technical support Millane was in correspondence with the Shire from the University of Melbourne and financial about subdividing the land parcel into shopping sites. The Shire rejected his preliminary plans but support from the English, Scottish and Australian Bank.93 For Millane, the idea was given further indicated future approval if ‘a proper surveyor’s 94 subdivisional plan’ was submitted.88 This cogency by the death toll in the1926 bushfires. comment was most likely not appreciated by However, the Shire was unconvinced and in May Millane, his surveyor father having only died in 1926 sent a registered letter citing breach of build- June. Perhaps because of this loss the project goes ing regulations and their decision ‘without qualifi- nowhere. It was overtaken in October 1925 by cation to insist upon this building being what the Shire Building By-Law committee demolished immediately’.95 Immediately, Millane describe as a proposal for ‘an extraordinary rose to the defence of his concept. He wrote reinforced concrete construction’89 at the Locksley numerous and long letters to the Council.96 He Road site. prosecuted the Shire for sending ‘a letter showing The radical proposal was for a fireproof house malicious intent in ordering him to demolish a made of empty kerosene tins and reinforced building’,97 sought an injunction, issued a writ concrete. Again the timing reflects Millane’s claiming £9,250 damages on the basis of a Statute identification of a commercial opportunity. It of Charles I98 and appeared in person before the coincided with a housing shortage and public Shire Council to state his case.99 All to no avail and discussion on the use of alternative building the part-completed house was demolished on 9th materials such as steel and rubber. The State August 1926 on the basis that ‘insufficiently perfo- Savings Bank also had a proposal for workmen’s rated tins were used instead of expanded metal, houses at Fisherman’s Bend (Garden City) and that the slashed tins were rusty, greasy, and called for tenders to build 88 houses including six painted, and that the studs were not uniform’.100 at Heidelberg.90 Millane’s proposal was an From a nearby corner Millane watched as a team audacious response to this environment. He had of men set about the demolition. A report of the conceived it some years earlier when a Motor event written some years later described him as: Cycle Sales distributor travelling in the Mallee, an area then being settled under a post-war soldier … well dressed in the fashion of the times. His settlement scheme. There he noticed a farming long single breasted coat was buttoned and he customer living in a hessian humpy surrounded by wore a red carnation in his buttonhole. In a few hours the house was a heap of rubble. The literally hundreds of empty petrol tins left over young man looked dejectedly at what had once from filling tractors. His response was to suggest a been his home and walked slowly away.101 house made of tins to form lightweight cellular walls. They would be composed of 85% sealed air, The demolition unleashed an avalanche of prose- the rest reinforced concrete, offering high insula- cutions and litigation against the Shire, its tion against summer heat and winter cold, as well Councillors, its officers, its and others as being fireproof, light, strong and cheap.91 drawn into the saga. Seeking justice for this event

7 GRANT LESTER AND SIMON SMITH became an obsession with Millane for the rest of expense? If you are wise, you will get some work his life. and build yourself up bodily and mentally so that you will become a reputable citizen instead Over the next 2 years until the start of 1930 111 Millane personally issued a bevy of criminal infor- of being a court ghost. mations and summonses in the Heidelberg and Melbourne Petty Sessions courts. They showed A Law to Deal With ‘Cranks’: History is Made remarkable ingenuity. A Councillor was prose- As early as January 1926, the Melbourne City cuted for being a competing builder and voting on Council had had enough of Millane’s seemingly the resolution to demolish. The Shire was charged endless litigation. They received advice from the with destroying a work of art and illegal detention City Solicitor HE ‘Pompey’ Elliott112 ‘that there of (demolished) goods. The Shire lawyers were appeared to be no satisfactory mode of restraining charged with sending letters demanding money Millane except to request the government to pass with menaces and unlawfully deceiving various an Act on the lines of the Vexatious Actions Act courts. Millane also convened a jury at the site of 1896 of England’.113 That legislation had been the demolition that awards him damages of over introduced to curtail the vexatious litigation of one thousand pounds. All were struck out with Alexander Chaffers against public figures such as costs, usually for want of jurisdiction.102 Far from the Archbishop of Canterbury, the Speaker of the being rebuffed by this lack of success, Millane House of Commons, Judges and the Trustees of moved his litigation to higher courts, regularly the British Museum.114 Accordingly, in February filing lengthy and often rambling affidavits full of 1926 the Melbourne Town Clerk wrote to the legalese in support of applications to review the Attorney-General requesting that the Council and decisions. He typed his own documents and public bodies be given similar statutory protec- appeared in person. Dismissal in the Practice tion.115 An indication that the government was less Court inevitably led to to the Full Court103 concerned about the urgency of the situation is and then to the High Court,104 which conveniently reflected in an Argus report on the move published for Millane in those pre-Canberra days was in some months later that reviewed the history of Little Bourke Street, just next door. All the such litigants in the Supreme Court: proceedings lapsed or were struck out. At present there is an old woman who enters Under this assault, in October 1926 the Shire any room that she finds vacant and writes resolved to bankrupt Millane for non-payment of incoherent letters against both Bench and Bar. costs £54/4/-. The purpose was to gain legal Late one afternoon she stood in the quadrangle control of his ability to both continue and issue and ‘coo-eed’ loudly several times. An attendant future legal proceedings.105 Unusually, Millane was asked her what was the matter. ‘I am coo-eeing represented by counsel who resisted the petition for an honest judge,’ she replied, ‘but I do not on the basis that the Council’s motives were think there is the slightest hope of finding one 116 improper and designed to stifle the pending about here’. 106 compensation action. The argument was In September 1927, after further prompting from rejected and in August 1927 McArthur J ordered the Melbourne City Council,117 the government that the estate be sequestrated. finally introduced into the Parliament the Supreme 107 Although he would be discharged in 1930, Court (Vexatious Actions) Bill. It was a repetition of the bankruptcy unleashed further litigation partic- the English provision and targeted persons who 108 ularly as the Shire moved to sell Locksley Road. habitually and persistently, without reasonable Although the bankruptcy did stall a Supreme grounds, issued vexatious legal proceedings. Only 109 Court action Millane continued to maintain his a senior law officer could initiate the motion and 110 rage in the Petty Sessions courts. In one the person concerned must be given an opportu- predictably unsuccessful prosecution against the nity to be heard. It was then for a Supreme Court Shire lawyers alleging they obtained a debtors’ judge to control the issue of any further legal summons by fraud and deceit, the Magistrate proceedings.118 That Millane was the target is provided the following advice: made clear from specific references to him during 119 Why do you not get some good legal advice debate. instead of giving yourself, the Court, and the The Bill met opposition in the lower house. defendants much unnecessary bother and How many cases constitute ‘habitually’ and how

8 INVENTOR, ENTREPRENEUR, RASCAL, CRANK OR QUERULENT? do you ‘differentiate between a sane man and a Because of the special nature of the proceed- crank’.120 In particular, labour Maurice ings the case was referred directly to the Full Blackburn121 opposed the Bill. He argued that Court. A young barrister, JW Roger Thomson, there had been insufficient time to consider the was appointed Millane’s counsel. The instructing provision, that it was dangerous and the right of solicitors were Maurice Blackburn and the citizen to bring a grievance before the court Tredinnick. Both acted in an honorary capacity. should be inalienable: ‘That right must not be Thomson argued that the new law offended the taken away simply because one or two cranks have principle against retrospectivity in that all but one instituted a few frivolous actions, or a dozen such of the proceedings predated the 1928 legislation.131 actions’.122 He also relied on an English precedent that He succeeded in having debate on the Bill supported the exclusion of criminal proceeding adjourned to allow further consideration and it from consideration.132 The court ignored the first was subsequently withdrawn altogether whilst the point and distinguished the second. On 5 lower house was sitting ‘in camera’.123 Late in September 1930 Rupert Frederick Millane became 1928, the provision was quietly inserted, without Australia’s first declared vexatious litigant.133 He further debate, as s33 in the 1928 consolidation of was 43 years old. the Supreme Court Act.124 Through his counsel, Millane appealed to the The unusual circumstances surrounding the full bench of the High Court. It listened for half passage of the statutory provision fed the conspiracy an hour before Chief Justice Isaacs refused his suspicions of Millane and other litigants over the request for special leave.134 A decade later Isaacs next few decades who questioned the validity of its would himself become involved in legal proceed- passage.125 Interestingly, in Millane’s case, on the ings that led to his sister-in-law Edna Isaacs same day that the Parliament dealt ‘in camera’ with becoming Victoria’s second vexatious litigant.135 the Vexatious Bill they also passed a further amend- ment to the Motor Omnibus Act 1924, specifically Litigation Post-Declaration: The Quest For Leave targeted at him. It increased fine levels.126 Although the making of the declaration coincided By 1929 the Heidelberg Shire, still under with the end of Millane’s entrepreneurial career, it litigation siege from Millane, had become also signalled a new phase in his litigious activity. frustrated at the lack of action by the government. The requirement that he seek leave before he The Shire had received 235 documents from him issued proceedings moved the focus to the superior and the Shire President interviewed him 101 times courts and away from the defendants and inferior at his private residence. In his view ‘the thing had courts. The Supreme and High Court registries gone beyond the humorous stage’.127 They and practice courts become the focus of Millane’s instructed their solicitors to ‘take what action prodigious numbers of affidavit filings and in possible under the new Act to prevent Mr Millane person motions. However, the subject matter from embarrassing the Council with further litiga- continued to have familiar themes, namely Stage tion’.128 Even the journal of the Law Institute was Carriage licenses and compensation from the moved to comment: ‘Nearly all barristers and Heidelberg Shire. solicitors in Melbourne know Mr Millane and The declaration was not an immediate success. while marvelling at the industry of this famous Continuing to show his legal ingenuity, in litigant, will welcome the proposed legislation’.129 October 1930 he issued proceedings against the In July 1930 the Attorney-General finally took Mayor, Alderman, Councillors and Burgesses of action. He brought proceedings to have Millane the City of Melbourne and prosecuting officer declared a vexatious litigant. Mr WM Irvine O’Toole for , the misde- appeared for the Attorney-General. The applica- meanour of habitually exciting or maintaining tion was supported by six affidavits from Clerks of suits of quarrels.136 This was in response to Courts and a Solicitor’s clerk. They showed that Council prosecutions for running unlicensed buses. Millane had issued since 1925: ‘87 Supreme Court The Attorney-General promptly brought contempt writs, 53 summonses out of the Heidelberg Court, proceedings in the Supreme Court. There, Millane 58 out of the City Court, and 15 out of the Court gave an undertaking not to issue further proceed- at Preston. In all 213 writs and summonses had ings but not before asking the judge for an order been issued in four years’.130 ‘that other parties cannot take proceedings against

9 GRANT LESTER AND SIMON SMITH me?’ In response the judge said: ‘You have an Act all constitution. There, his former adversary, now to yourself. You can always defend any action Justice Dixon found the action incomprehensible brought against you, but you cannot defend by and in staying it forever was reported as saying, in bringing another legal proceeding’.137 Millane’s absence, ‘The state legislation relating to This advice foreshadowed the surge of activity vexatious litigation might also apply in that occurred through 1931. In April of that year Commonwealth jurisdiction. It might be that Mr Millane and his two of his supporters, Noble Millane was not sufficiently competent to conduct Kerby138 and Frederick Hampton renewed the Stage his own litigation (Laughter)’.153 Carriage campaign. They determinedly ran their In March 1933 Millane returned to Victoria unlicensed and dishevelled buses up and down and was promptly arrested for non-payment of Sydney Road to Coburg pirating tramways £1,276 in fines and sent to Pentridge Prison for 4 customers. In response, licensing authorities years. However, in September, as with Kerby and conducted a massive campaign against them result- Hampton, he was released on special licence after ing in repeated prosecutions and fines. Newspaper serving only 6 months.154 During his imprisonment headlines of the day give the flavour: Competition he served 23 days solitary confinement and was with trams: Complaint about Bus service,139 Millane assessed by two police medical officers for removal fined £50 for Bus offence: Gives Notice of Appeal,140 to an asylum155 before being released following Motor Omnibus Act: Further prosecutions,141 Motor representations by Solicitor LP Le Grand of Bus prosecutions: Developing into farce.142 Then, on Brunswick.156 Possibly the government was wary of 29 May 1931 Millane succeeded in getting leave to creating a ‘Stage Carriage martyr’. The event did, proceed by counsel to appeal the fines and challenge however, give rise to a continuing grievance. the regulations under which the proceedings were Hardly missing a litigious beat, 2 months later taken. This had the effect of adjourning 80 further he brought confusing proceedings in the Hawthorn prosecutions pending the outcome of the Petty Sessions seeking to introduce ‘fresh evidence challenge.143 In June, Millane had another success of ownership’ relating to the four seized buses. An when an ageing Chief Justice Irvine ordered a stay exchange between the Magistrate and Millane ‘of all Summonses part heard or pending in the indicates how the courts commenced to deal with courts of Petty Session’.144 He apparently misunder- Millane’s actions. They deferred them: stood Millane’s rambling application and made the wrong order.145 This, combined with a successful Mr Stafford — I will have to go into it. I will do Order to Review application on behalf of Kerby, nothing about it today. caused speculation on ‘Will the buses come back?’146 Millane — The Chief Justice wants you to determine matters of fact. However, it was not to be and urged on by parliamentary147 and local government148 pressure, Mr Stafford — When the Chief Justice directs me to take evidence as to facts I will do so. I will by the end of the year the authorities overcame adjourn the matter until next year.157 these legal setbacks. Hampton149 and Kerby150 were gaoled and served 8 and 6 months imprisonment respectively before being released on special licence. A Litigant Slowed But Not Stopped With the buses temporarily seized to pay fines151 As the 1930s got underway, Millane’s fortunes and a warrant issued for his arrest, Millane left the were in decline. The combined effect of failed jurisdiction and moved to Albury, New South business ventures, legal expenses and fines took Wales. From there he continued to litigate. In 1932 their toll. Millane family resources were not alone he had seven matters active in the High enough and older sister Florence’s support for her Court. In one, on behalf of Highway Motors, he brother saw her own property sold by the bank, sought £10,600 compensation from the State of but not before the now customary Millane legal Victoria, the Attorney-General, the Treasurer and tussle in the Supreme Court.158 the City of Melbourne for the gaoling of Hampton Mother Annie, brother Gilbert and later and Kerby, the loss of four stage carriages, fines Florence, all took up residence in Brighton, first, imposed and general legal expenses.152 In another, at 90 Male Street, a modest brick dual occupancy, using the trading name Union Oil, he sued the and in 1939 in a more substantial Victorian house Commonwealth government claiming amongst at 837 Hampton Street. Millane now derived his other things, that customs duties were ultra vires the income by working with his brother in a bicycle

10 INVENTOR, ENTREPRENEUR, RASCAL, CRANK OR QUERULENT? business and general buying and selling of cars and conducted a bicycle frame manufacturing and other mechanical parts. Indeed, their yards became general buying and selling business. Gilbert signed full of old cars and bits of machinery.159 an option to purchase the property for £1,175 on In 1935 Millane obtained leave to revive his terms from a Mr James G Hone but, due to compensation claim against the Heidelberg Shire, wartime controls on property dealings, the transac- although he was ultimately unsuccessful.160 Over tion did not progress. Instead, weekly payments of the next few years he maintained a correspondence £2.2/- were made. In 1946, immediately after the with the government seeking compensation for war Millane discovered that the owner, now a Mrs wrongful imprisonment,161sought copyright for Eileen M Bosher, was selling to an Arthur Lyne two pages of rules for ‘Popular Radio Contests’162 Browne, a city merchant. Seeking to forestall a loss and in 1936, after a 3-year hiatus, again brought of property rights and showing a belated under- actions in the High Court. There, the Victorian standing of conveyancing processes, he attempted declaration did not apply. to lodge a caveat to protect his and Gilbert’s inter- One action, in 1938, dismissed by Justice ests. The Registrar of Titles rejected it as the Owen Dixon, sought to appeal his case against the Commonwealth Bank, Mortgagor for the new Heidelberg Shire.163Another, in 1943, against the owners, had already lodged (although not yet regis- Chief Electoral Officer, challenged his defeat as an tered) a title transfer. This unleashed a decade of independent Senate candidate in the 1943 federal litigation on the intricacies of caveat law that election. In a disjointed two-page affidavit he travelled to the Supreme Court, the High Court, analysed the meaning and source of a ‘Free’ the Privy Council and back again effectively culmi- election and, relying on his view of the Imperial nating with Millane’s forced eviction on 21 Acts Application Act 1922 (Vic), argued that ‘all or October 1955.169 any “Rules or Regulations” have no validity at all Examination of the many litigation files held in against the general public, or prosecuting powers the National Archives show Millane’s remarkable in any Court of Law’.164 This latter point no doubt persistence. The documentation is almost all gener- was a response to the many past prosecutions ated by him. It is in a self-typed loose affidavit launched against him. format in an increasingly repetitive and emphatic Nor did Millane suppress his creative side. He style with liberal use of legalese and capitals.170 Most was busy inventing and making suggestions. As applications initiated in Victoria in the Practice with his ship-building scheme in 1917, he Court rather than through the normal issue of a responded to a war effort. In March 1942 he wrote writ and then proceeded on appeal to the High to the government with suggestions for ‘miniature Court. Browne, the Commonwealth Bank and the semi submarine’ motor boats with torpedoes. He Registrar of Titles were all drawn into the proceed- was politely thanked.165 Later that month he ings at various times. Millane, to get round his suggested Motor Torpedo warhead boats, outboard vexatious status, attached Gilbert’s name to a motor boats and hydroplanes. The government number of the applications and sat with him in responded more tersely ‘that your proposals do not court prompting him with questions.171 In response, add to information already available’.166 Then in the court ordered that Gilbert proceed only through 1947–1948 he sought copyright for two literary Counsel: a not too subtle extension of Millane’s works. One was entitled ‘Election Progress Report’ vexatious litigant declaration. This order too gener- but he failed to submit a copy of the work.167 The ated appeals.172 second, ‘Tabulated Race Guides and charts’ Despite regular dismissals, Millane simply filed comprised three closely typed pages of horse names further affidavits and made more applications. and calculations.168 Neither made it to commercial Attempts by Browne to get possession of the implementation. property dragged through the 1940s into the 1950s. In 1952 he suffered a setback when rather confus- Litigating Through a Brother, Who Needs Leave? ingly, Coppel J gave Millane leave to file a caveat.173 In 1939 the Millane brothers, unmarried and now This could not defeat Browne’s interests as the title in their 50s, and their 80-year-old mother Annie, had been transferred to his name in March 1946. moved around the corner and took up residence at However, by the mid-1950s things were drawing to 837 Hampton Street, Brighton. It is from this a close. In December 1954, the Victorian Full property that Rupert Millane and his brother Court ordered that the caveat be removed. A month

11 GRANT LESTER AND SIMON SMITH later Gilbert was bankrupted for failure to pay legal 1947 when he sought to intervene in a gas costs174 and in October 1955 he died. Ten days after dispute by having the Attorney-General ordered his funeral Millane was unceremoniously evicted. to do what may be described as ‘strike break- His words suggest the poignancy of the moment: ing’180 but mainly he tried to have reviewed both Complainant with his Solicitors and van loads of the Heidelberg Shire and Stage Carriage police and truck removers suddenly entered matters. In words that were rather ironic, Barry premises before 10am and put me off the J dismissed a number saying: premises 9.48am and thereafter proceeded to remove (damage or otherwise) all household Without expressing any opinion as to furniture, furnishings, bed, living, dining room whether Certiorari is available or appropriate equipment and accumulation of deceased estates vehicle to bring these matters before this for over 100 years, engineering business papers court, I am clear that it is not open to the etc. of household value £1,050 taking every piece applicant to ask successfully for an Order in of clothing except what I was wearing. Took such an omnibus (author’s emphasis) form.181 away two vans loads of best furniture and effects £1,000 (which were attached by bankruptcy In 1951, once again showing legal versatility, Court for £543) also two van loads of second rate and under commercial pressure in his bike utility furniture etc. to Brighton and Moorabbin business, he sought leave to be able to prosecute Girls & Boys Orphanages. Burnt all miscella- the Cycle Traders Association for what in modern neous which fell or broke, and several 5-ton tip times might be described as price-fixing or cartel loads of steel materials, business goods from yard behaviour. His affidavit railed against their ‘intim- and sheds, workshops, 4 dozen bicycles, 40-cub. idation’.182 Two months later following publicity Capacity concrete moulds, truck load of salvaged good motor tyres and later after detention for some in the Truth he sought leave to issue defamation weeks refused to give me papers in the house or proceedings against the publishers for ‘wilful and goods out of yard and sheds mainly some seven malicious libel in their full page article with photo motor cars, 5 motor cycles machinery equipment. Pegged out Goldmine in city in law battles.183 The Building trade — benches — tool. Total value seven-page affidavit that was filed provided £3,645. Only thing salvaged was two suit cases of Millane the opportunity for a complete, although paper and typewriter and used clothing then disjointed, review of events relating to Stage wearing — jewelry, valuables and title deeds for 184 land were all wilfully removed and burnt.175 Coaches and Heidelberg Shire. It appears that Millane cooperated with the publicity but disliked Millane endeavoured to fight a rear guard action the result. in the High Court. He obtained leave from the One successful leave application in this time 176 Victorian court to appeal to the Privy Council. followed the death of his sister, Florence in It went nowhere. Meanwhile, the High Court 1951. As the appointed administrator of her registry now refused to file his documentation for estate, he was given leave to institute legal not being in the correct form and on their face an proceedings to collect assets due the estate. A of the process of the court.177 Random former frock manufacturer she was owed filings of increasingly incoherent affidavits contin- £493/15/- by Sportscraft Sportswear. There is no ued until 1959. They contained a stream of 185 consciousness of the events over the last 30 years. record of any action ever having been taken. 178 The case then faded away. Persistent to the End During all this Millane did not let go of the themes of his earlier litigation. He remained busy in As the 1960s arrived Millane had entered his 70s. 186 the Supreme Court and the High Court. His immediate family had all died. His only Indeed, from the date of his declaration at the source of income was the old age pension and he end of 1930 until 1955 he made 81 separate was dependent on friends and family for accom- filings in the Supreme Court. Mainly personal modation. He moved from stables187 to a affidavits, they supported in person applications warehouse to a garage taking with him a suitcase of in the Practice Court for writs of certiorari, papers and other paraphernalia. He was losing his prohibition and reflecting Millane’s sight and used a white cane to get around. 188 He comfort with the language of the law.179 There was not forgotten, however, and his now legendary are occasional subject matter changes such as in activities even get mentioned in Parliament during

12 INVENTOR, ENTREPRENEUR, RASCAL, CRANK OR QUERULENT? discussion on amendments to the Vexatious seeks legal redress is negotiation and the acceptance Litigant provision: of reasonable settlement. Central to this process is I wish to rise to the defence of Rupert Frederick the maintenance of perspective and balance, that is, Millane. He is a poor old chap who at the effort expended is related to degree of loss. moment is very ill. Over the years he has had Equally familiar but less common, is the group this complex, or what I might term this obses- of difficult complainants who while usually present- sion. I had not long been a member of this ing with a long history of conflictual relationships House when in 1955 Mr Millane asked me to and chronic grumbling, actually display a heteroge- present a Petition to the House. After investiga- neous aetiology ranging from the whistle-blower or tion by the then Clerk of the House and Mr social activist through to those with narcissistic or Speaker, it was decided, because of certain irreg- paranoid personalities. Many seem to overreact to ularities in the Petition, not to accept it. In those days Mr Millane lived in Brighton. From and over-inflate their loss. They present with a that day — I hope I am not using strong words stubborn and at times venal refusal to compromise — he pestered the life out of me.189 in negotiations but inevitably settle to minimise the cost to them.192 He also remained a familiar figure shuffling Further along the spectrum are individuals around barristers’ chambers and the courts whose complaint arises from pre-existing major wearing a battered hat with brim and dressed in a psychiatric illness. Aggrieved by loss and (often) scruffy overcoat but always with a fresh flower in persecution, their claims arise totally or in part from his lapel. Well recognised as a polite and gentle the delusions associated with a pre-existing soul, he patiently waited in the Practice Court to psychotic illness. As a result, their claims are often make his leave applications for review and bizarre, the nature of claim usually in constant flux appeal.190 Well known to the judges, and with the and it is often impossible to define, let alone resolve, political intensity of the subject matter now the claim until the underlying illness is treated. This history, they were patient with him. In one case group is rarely unrecognised by those managing the before Justice Tom Smith (the elder) when seeking complaint even if it is not always simple to aid the an extension of time to file a new statement of claim, he was given 21 days. Millane replied that individual in receiving the psychiatric treatment would be difficult as he was going to be busy in the they require. High Court tomorrow and then in the Heidelberg Querulous Paranoia Magistrate’s court in the afternoon. Smith J replied with a straight face: ‘Mr Millane, the Lying between the difficult and the frankly bizarre trouble with you is that you have too broad a are a group which have captured the minds of 191 generations of eminent psychiatrists from those of practice’. 193 194 He died at a Prahran hospice on 7 December the 19th century, Krafft-Ebing and Kraepelin 195 196 1969 of a cerebral thrombosis. Perhaps conscious through to Ungvari and Mullen in this that he was the last of his line, a few years earlier century. They most commonly attract the psychi- he had arranged for the grave to be inscribed with atric diagnosis of Querulous Paranoia or one of its the names of his family. Unusually, he added the variants. As early as 1845 it was described as: further inscription ‘Erected by Rupert F Millane … A phenomenon so remarkable, that the 15th August 1965 RIP’. He was buried according more we observe it, the more are we astonished, to Roman Catholic form in a family grave at the St that a man who feels, reasons and acts like the Kilda Cemetery, Melbourne. He was 82. rest of the world, should feel, reason and act no more like other men upon a single point.197 The Psychiatric Perspective Querulous Paranoia is characterised by a relentless, The Spectrum of Complaint persistent and single minded pursuit of justice for The single-minded, unrelenting expression of real or imaginary wrongs through complaint, complaint and associated litigation of Rupert claims, petitioning of authorities, litigation and Millane may appear to many, as abnormal. This is sometimes threats and actual violence to self or because the phenomenon of complaint is familiar to others. It takes place over years. At the core is an all; it is the expression of dissatisfaction. The under- incorrigible belief by the person that they have stood cornerstone of the normal complainant who been victimised and that this is a typical example

13 GRANT LESTER AND SIMON SMITH of the way they have been treated by the world. serendipitously exposed to those specific stressors Hence, while their behaviour is overtly directed to that then provoke a response. However, the attainment of compensation and reparation, the response, while understandable in quality, is covert and driving demands are for vindication. exaggerated both psychologically and behav- This is not simply to have the rightness of their iourally. The evolution of this reaction continues claim acknowledged by individuals or organisa- to be influenced by environmental factors such as tions but rather to have the potential greatness of the reception of their complaints.201 Although their life acknowledged as well as recognition that Kraepelin proposed a series of sub-classifications the potential was never reached due to the envy of the querulous, modern researchers such as and malevolence of others. They want public and Mullen espouse a continuity of querulousness societal acknowledgment. This explains the gross without multiple discrete entities.202 discrepancies that often exist between the experi- Psychiatry and psychology offer various enced loss and their persistent and unremitting explanatory models such as the psychodynamic203 level of commitment to the pursuit of justice and and cognitive204 for the development of querulous their willingness to sustain the inevitable negative paranoia. They also acknowledge the complex impact on their personal, interpersonal and social interplay of other factors such as social,205 functioning of such a relentless pursuit. cultural206 and legal.207 These beliefs of having suffered loss or injus- The beliefs were thought to be of the form of tice dominate their mental life and slowly exclude overvalued ideas. These are isolated beliefs accom- all other aspects of life. While initially there may panied by a strong affective response that take not be discernible effects on their thought form or precedence over all other mental activity and are functioning, over time there develops in their maintained indefinitely. Overvalued ideas are verbal and written communications an over-inclu- understandable because of their origins in the sive and hence voluminous, repetitive, over elabo- strong affect of the particular personality and its rated and circumstantial style which makes their situation. They are felt to echo earlier experiences communications increasingly incomprehensible.198 to life events. Although often idiosyncratic and Equally, there is spread of grievance towards those false, they have the force of highly charged and who are only peripherally involved in the claim or compelling insights. Their qualities are similar to involved in the management of the complaint passionate political or religious beliefs and differ such as complaints organisations and officers, their only in degree.208 own legal counsel and the judiciary. This loss of The incidence of querulous paranoia in the focus is accompanied by an increasing disorganisa- psychiatric arena varies. Most recently they were tion of their efforts in pursuing their complaints.199 found to constitute about 0.2% of all referrals to a hospital outpatient psychiatric service.209 There The Developing Model of Querulous Paranoia is no information on general community Aetiologically there are many theories. Initially, incidence rates although recent research with psychiatric researchers began with the belief that it complaints organisations suggests a frequency of was a biologically predetermined disorder. For his the order of 0.2%–0.3% of clients.210 part, Kraepelin, whose asylum housed hundreds of There is surprising unanimity in the research the querulous, moved to the belief that this disor- findings that the majority developed their queru- der was of psychogenic origin, that is, an ‘abnor- lousness in their 30s and 40s and 50s and equally mal developments in a psychopathic (personality there is a consistent preponderance of men to disordered) disposition under the influences of women of the order 4:1.211 ordinary life’.200 The premorbid functioning is of a generally Ernst Kretschmer held that those forms of competent individual with high school education paranoid psychoses with understandable misbeliefs and a fair work history. Relationship history were not disease processes but were developments begins to highlight some difficulties with only in an abnormal personality subjected to a specific 30% ever married, 18% divorced and 50% never kind of stress. For the stress to be pathogenic it having married.212 must be specific for a particular personality’s Premorbid personalities are shown from vulnerabilities that have been sensitised to specific Krafft-Ebbing through to Ungvari to be consis- stressors by past experience. They are then tently ambitious and masking feeling of under-

14 INVENTOR, ENTREPRENEUR, RASCAL, CRANK OR QUERULENT? achievement and incompetence. Hence they are stuffed to the gunnels with diaries and apparently self-assertive and egotistical with high documents’.219 but fragile self-esteem and they inevitably become In the case of the forensic or non-voluntary embittered and overly sensitive. They may be psychiatric interview the querulent will be aggres- irritable and anti-authoritarian and their sive and dismissive of the process and will not relationships are marked by jealousy and attempt to recruit the psychiatrist. They will distrust, lack of empathy, distance and at minimise the amount they will discuss and expect conflict. Essentially mistrustful they are, as the psychiatrist not to believe them. They may Ricardo Pons describes ‘Those who look for refuse to give their name or personal details. They noon at 2pm’.213 often appear to have a positive, self-confident style Prior to the onset of their querulousness but remain emotional and touchy.220 Their current there was a high level of traumatic events in mood it is usually dictated by the course of recent their lives resulting in severe disturbance of life events. living conditions with 60% having a preceding According to Kraepelin there may be ‘a weari- stressful court case and 31% had been dismissed some diffuseness of conversation’ and it abounds in from work.214 half or wholly misunderstood professional expres- Ungvari notes that the intensity of queru- sions. The vast majority will have emotionally lous behaviour varies from sending complaining charged misbeliefs of being unjustly treated and the letters to authorities to vexatious litigation.215 belief in the need to restore their rights (revindica- Kolle found that of his patients 80% had tion), plus or minus misbeliefs of persecution.221 litigated. Their behaviours, however, do not They will have ideas of reference. Kraepelin stop at litigation but in fact may deteriorate into describes them as ideas of grievance, self-apprecia- threats, assaults, murder and or suicide.216 tion, and inflated self-esteem. The major themes of Astrup found that less than 25% were hard core their grievances tend to be conjugal, legal, litigious litigious cases but over 25% had history of and persecutory. Less commonly will be scientific aggressive behaviour.217 breakthroughs, medical mistreatment and stolen inventions.222 Clinical Presentations of Querulous Paranoia The psychiatrist or psychologist will tend to see the Written Communications morbidly querulous in a limited number of Kraepelin describes the typical amount of letters as contexts. They will rarely (if ever) present for being voluminous. Their form is careless with the psychiatric or psychological treatment of their appearance of having been written in excitement querulousness but do present to psychiatrists and with numerous notes of exclamation and interro- psychologists for expert opinion to certify their gation.223 They are like a legal document except sanity so as to aid their court procedures.218 At times the querulents cover the entire surface with script they are seen at the behest of the Court particularly (including the margins). The substance is repeated in issues of the Family Court pertaining to custody in several different ways with undue grammatical of children. emphasis and underlinings. They will often refer They may be seen in a forensic setting either to themselves in a third person legalistic style, for as a contemnor or for criminal charges of threats example, as the defendant or by their surname.224 or physical assault or murder. Freckelton, writing in a more modern age, The demeanour of the querulent will be describes the use of coloured inks for emphasis and dependent on the context of the interview. In the cutting out of captions and quotes from the case of the psychiatrist as expert witness a newspapers. He notes their particular affinity for querulent will present as a victim and suppli- the star asterisk key and the use of capitalisation cant, eager to recruit the psychiatrist to the for especially virulent expressions of frustration.225 cause. They may express concerns about the More recently, research with Victorian interview being bugged and they may well tape complaints organisations has shown further charac- the session either covertly or overtly. The queru- teristics of their communications. They do not limit lent will exhaustively explain that this will take themselves to one form of communication but some time to explain. They will, ‘carry much communicate in multiple modes utilising letters, paper and have an old suitcase or briefcase phone, facsimile, emails and in person visits with or

15 GRANT LESTER AND SIMON SMITH without appointments. There is a delight in the use litigation as well as high levels of emotional and of multiple colour highlighter pens.226 financial cost to both the complainant and staff. In terms of organisations and courts, small numbers Characteristic Behaviour in Court of complainants absorb large amounts of time and In court, they will typically have either rejected effort. This inevitably results in increased dissatis- legal counsel at the outset or fallen out with their faction and new complaints rather than an attenu- legal counsel and so will be representing ation of the original complaint.229 Increasing themselves. Overtly this will be due to arguments stressors for those managing the complaints occur with their legal counsel about progress of the case as the client becomes increasingly emotionally or lack of payment of legal fees. However, it is labile, desperate and threatening. This is in often because their counsel, restrained by the rules addition to being the focus of new complaint and of court, is unable to express the querulent’s further litigation. demands forcefully enough to satisfy them. They It is increasingly evident that management find the drama of Court proceedings addictive, must be task and group specific and range from and they gain maximum expression of their needs management guidelines for judicial officers, for vindication and vengeance by direct communi- management training for complaints officers and cation to the court. In consequence they often front line counter staff (in the management of the make claims of negligence and demand discipli- emotionally labile, angry, threateners of harm to nary action against their former legal counsel, who self or others) and policy and procedures for in turn may sue for non-payment of fees.227 complaints organisations and the courts. Although In court, though untrained, they will have further research is required, such developments are developed what Goldstein describes as hyper- occurring through research with complaints competency, that is, factual knowledge of law organisations and through the marriage of these without understanding of the legal framework, let findings with existing psychiatric and psychologi- alone its spirit or implications for society. This cal knowledge and techniques.230 often results in them focusing on, and quoting The psychiatric literature focuses on those who from documents such as the Magna Carta, the were hospitalised in asylums. In the earliest cases International Covenant on Civil and Political ‘therapy’ was primarily by long-term institutional- Rights, or the Constitution with little true under- isation. As shown by Kolle, this was unnecessary. standing. Often they will invoke the concept of Kolle’s major management tip was to emphasise natural justice and its subtleties.228 the importance of careful diagnosis and the impor- Regardless of their apparent competency, they tance of identifying those with schizophrenia or will usually become overwhelmed and disorgan- manic depression as the cause of the querulous- ised and will as a result consume large amounts of ness.231 court time justifying why they are out of time for Van der Heydt states that institutionalisation instituting actions or submitting documents. should only be used when it is necessary for the There is often transfer of focus from their original physical protection of the public and that a decla- grievances to the legal processes or particular ration of incompetence must only be used to personalities in their legal world. Conspiracies can protect the individual, not society. Finally, he be formed which involve magistrates, judges, describes the bushfire of querulousness that is police and others. ignited when attempts to dominate or subordinate the querulous are made.232 Management and Therapy Essentially, neither analytic psychotherapy Research with Victorian complaints organisations nor cognitive behavioural therapy alone was suggests that the vast majority of morbidly queru- found to be of use as ‘the querulous have no lous are never sighted by mental health profession- pressure of suffering and hence have no motiva- als let alone receive treatment. Instead, complaints tion for therapy’.233 officers, lawyers, court staff and the judiciary Since the advent of psychopharmacology, manage them. This has led to an increasing aware- some therapists in the mid to late 20th century ness by these groups that the usual management have used pimozide in low doses (2mg/daily) and techniques are inadequate. They are left with recorded success. The numbers of patients cited dissatisfied clients and ongoing complaint or have been very low.234 Of equal importance to

16 INVENTOR, ENTREPRENEUR, RASCAL, CRANK OR QUERULENT? pharmaco-therapy is the attitude of the therapist available national register,236 research indicates that that must be: ‘… an interested attentive relaxed only 45 persons have been declared since 1930 (see and un-affective attitude with an unfeigned air of Table 1). However, two groups are omitted from detachment and suspended judgement’.235 this notional register. It does not include persons One of the author’s own approaches with a who are only prohibited from issuing proceedings small number of involuntary inpatients in a foren- against particular defendants rather than banned sic psychiatric setting has been with low dose from issuing any future proceedings without prior atypical anti-psychotics initially, followed by leave. These litigants could be described as being cognitive behaviour therapy which has successfully only ‘partially vexated’. Nor does the list include reduced the preoccupation with their grievances. litigants declared by the Family Court. Section This has required months of inpatient admission. 121 of the Family Law Act 1975 (Cth) effectively prohibits the publication of its list for reasons The Legal Dimension presumably linked to the genesis of the Court in The Numbers 1976 as a ‘helping’ or private court. In the 75 years that have elapsed since Victoria A number of explanations are offered for the pioneered the vexatious litigant sanction most small numbers of orders made nationally. First, as federal, state and territory superior courts (except Table 1 indicates, most of the jurisdictions have the Northern Territory) have armed themselves only introduced the sanction in recent years. with a similar power. Although there is no publicly Indeed, regarded by many as

Table 1 Australian Vexatious Litigants by Court 1930–2005

Court Source of power First 1930– 1970– 1990– 2000– Totals available 1969 1989 1999 2005

Federal High Court Order 63 r 6 High Court Rules 1943 1 1 2 Nil 4 Family Court Section 118 Family Law Act 1975 1976 N/A N/K N/K N/K N/K Federal Court Rule 21:1 Federal Court Rules 1999 N/A Nil 1 1 2 State and Territory Australian Capital Section 67A Territory Supreme Court Act 1933 1998 N/A N/A Nil Nil Nil New South Wales Section 84 1970 N/A 1 2 6 9 Supreme Court Act 1984 Northern Territory N/A N/A N/A N/A N/A N/A N/A Section 6 1980 N/A 4 3 5 11 Vexatious Proceedings Act 2005 South Australia Section 39 1935 Nil Nil 1 2 3 Supreme Court Act 1935 Tasmania Section 194G Supreme Court Civil 1994 N/A N/A Nil Nil Nil Procedure Act 1932 Victoria Section 21 1929 5 3 2 3 13 Supreme Court Act 1986 Western Australia Vexatious Proceedings 1930 1 1 Nil 4 6 Restriction Act 2002 Totals 7 10 11 21 49*

Note: *Total of individual litigants is 45. Two have declarations from two courts and one has three declarations. Source: S Smith, Ph D research, Faculty of Law, Monash University.

17 GRANT LESTER AND SIMON SMITH the most litigious jurisdiction in the country, only litigants being declared vexatious. A further exami- enacted the sanction in 1970. Second, the list of nation of these remedies is beyond the scope of parties who may bring an application to have a this article.244 person declared vexatious has been limited. Finally, it is clear that the courts are conscious Typically, they are senior law officers such as an of protecting the right of the citizen to have their Attorney-General.237 This inevitably adds a politi- day in court. Despite the absence of United States cal dimension to the initiating process that inhibits style constitutional guarantees of due process, they the number of applications. Third, the criteria for can and do decline to make vexatious declaration obtaining an order, have been both narrow and orders.245 cumbersome. Most jurisdictions adopt a form of words similar to those used in Victoria, namely: The Push for Nationally Consistent Legislation Nonetheless, since 2000 there has been a 190% The Court may, after hearing or giving the increase in orders made compared to the previous person an opportunity to be heard, make an order declaring the person to be a vexatious 70 years (see Table 1 above). This has brought a litigant if it is satisfied that the person has: new focus on the utility of the sanction to combat (a) habitually; and litigants whose repeated actions waste court (b) persistently; and resources and harass defendants. Western Australia246 and Queensland in particular have (c) without any reasonable ground- responded by introducing new legislation. instituted vexatious legal proceedings (whether civil or criminal) in the court, an inferior court The Queensland Vexatious Proceedings Act or a tribunal against the same person or differ- 2005 has been developed through the Standing ent persons.238 Committee of Attorney’s General (SCAG) of the Commonwealth, state and territory governments Establishing these arguably repetitive criteria, as a template for nationally consistent legisla- narrowly focused as they are on the legal nature of tion.247 It introduces four key changes to the ‘tradi- the various proceedings rather the litigant’s tional’ regime. First, it widens the class of persons conduct, is burdensome for the applicant and able to bring vexatious order applications to cumbersome for the court. They inevitably involve include defendants and persons with ‘sufficient a painstaking review of all the litigant’s applica- interest’ (s5). These new categories still require the tions.239 A contrast in this regard is the Californian preliminary leave of the court (s5 (2)). approach that clearly defines what is vexatious with Significantly, the changes also expressly provide regard to the litigant’s conduct and introduces that the court may make an order on its own numerical guidance. For example, in that state a initiative (s6 (3). These changes combine to place person can be a vexatious litigant if they have the court squarely in control of preventing its commenced, prosecuted, or maintained in propria processes from being abused. It remains to see how persona240 at least five litigations in the immediately activist the court will become. preceding 7 years that have reached finality adverse Second, the court will be able to take into to the litigant or that have unjustifiably remained account legal actions brought outside the state (s6 pending for 2 or more years without action.241 (1) (a)). In introducing this change the Fourth, over the last 20 years changes to court Queensland Attorney General said this ‘will ensure rules have given court registrars the power to that vexatious litigants will not jump from state to refuse acceptance of litigant documents that are state in pursuit of their causes and will enable irregular or represent an abuse of the process of the similar consequences to flow from one state to court.242 Although few court registries appear to another’.248 Given that only three litigants have record how often this power is exercised, anecdotal ever been declared in more than one court, the evidence suggests it is regularly applied in the case change would appear to reflect an anticipated of self-represented litigants.243 This represents a increase in ‘forum shopping’ rather than demon- significant shift toward pre-emptive control. After strated need.249 issue of proceedings there are further controls Third, the court can now declare vexatious available such as the ability to order security for persons who they find to be acting in concert with costs and summary dismissal as an abuse of the a vexatious litigant (s6 (1) (b)). This is a curious process. These sanctions also reduce the number of change. It appears directed at combating support-

18 INVENTOR, ENTREPRENEUR, RASCAL, CRANK OR QUERULENT? ers of ‘primary’ vexatious litigants although it is not if not destroy, the law officers’ monopoly over the clear whether the test of vexatiousness will in practi- initiation of the statutory power’.255 cal terms be a lesser one than for the principal In Australia, it seems unlikely that the courts ‘vexator’ and lead to ‘guilt by association’? Although will follow this English development.256 Certainly, the catalyst for this change is not clear, it appears to there appears no need to remodel the inherent be a response to the activities of a particular litigant jurisdiction as the model legislation as discussed and his supporters in Queensland and their claims above specifically provides for the court to make inter alia that Australian paper currency is not legal vexatious declarations covering future proceedings tender.250 This is not always the best basis for legisla- on its own initiative. The interest will be in how tive change. assertively they exercise it. Finally, the changes introduce tighter defini- tions of what constitute vexatious proceedings. As Conclusion in , there is now an express focus on the Just over 75 years ago Rupert Millane became conduct of the litigant with vexatious proceedings Australia’s first declared vexatious litigant. including those that are ‘conducted in such a way Whether he was also a querulent is a moot point. as to harass or annoy, cause delay or detriment, or Certainly, the amount of material in the public achieve another wrongful purpose’ (s4). This is an domain is suggestive of such a diagnosis. His appropriate widening of focus. gender and single status fit the profile. At the onset Now that Queensland has enacted the model of major litigation he was in the typical age range Bill, it remains to be seen how promptly and (39). There is his voluminous legal documentation comprehensively the various states and territories that cascades over ever-increasing targets over a implement the same provisions in support of a 30-year time period. The documentation itself nationally consistent approach. Ominously, the exhibits a level of increasing excitement and Queensland Attorney General was silent on any emphasis that progressively exhibits, in Kraepelin’s engagement by the Commonwealth government words, a ‘wearisome diffuseness’. Then there is the on the plan when she introduced the Bill to the apparent transfer of focus from the original griev- Parliament in late 2005.251 ances to the legal process. Nonetheless, no matter how tempting such a retrospective diagnosis, it Future Control Through the Inherent Jurisdiction: A Phoenix Stirs? would be inappropriate to be definitive in the absence of full information on his character, Prior to 1928, Australian courts had not been intimate personal experience or phenomenology prepared to assert an unlimited control over future that would enable a full psychiatric evaluation.257 litigation of vexatious litigants. The established In modern times it is this same absence of full view was that the power of the court to protect its data that inhibits the ability of the medical and legal processes from abuse, as derived from its rules or systems to promptly respond to the challenges the inherent jurisdiction, was limited to litigation posed by this group of litigants to themselves and to then before the court.252 It was only the introduc- the legal system. Clearly, a passionate litigious tion of statutory amendment prompted by Rupert obsession that may well develop into a severe Millane that extended the courts power to cover psychiatric condition not only impacts on the future proceedings. individual and their family but the proper function- Recently, the English Court of Appeal in Ebert ing of the legal system. Accordingly, the recent v Venvil; Ebert v Birch253 and Bhamjee v Forsdick,254 revival of interest in querulents/vexatious litigants reviewed the earlier English authorities and by psychiatry and policy-makers is to be welcomed. asserted a power to control future proceedings The opportunity it provides is best summed up by based on the inherent power. This is notwithstand- an English commentator: ing the existence of the statutory provision in the . The difference appears to be that It might be time for the legal profession, the judiciary and legislators to begin to reassess the the latter requires initiation by a senior law officer concept of the vexatious litigant in medical whereas use of the inherent power enables the court terms. Hopefully, an awareness that vexatious to act on its own initiative. One commentator has litigants are not simply people who are a described this development as ‘audacious quasi- nuisance to the court system but individuals in legislative activity’ and ‘one that can only weaken, need of psychiatric attention will both help

19 GRANT LESTER AND SIMON SMITH

with our understanding of them and enable the 2 It was accepted 29/4/1908. See www.v3.espacenet. formulation of more appropriate responses to a com/textdoc?DB=EPODOC&IDX=GB19070995 psychiatric, rather than legal condition. 258 1&F=0&QPN=G Accessed 3 October, 2005. 3 ‘Persistent Litigant’, People, 11 February 1953, p 38. At a technical level the vexatious litigant sanction 4 Premier of Victoria 1909–1912. itself is at the margins of the armoury of mecha- nisms designed to protect court processes from 5 PROV, VPRS 421/P0, Unit 78, 1915/15019. abuse. This is reflected both in the small numbers 6 PROV, VPRS 421/P0, Unit 78. of orders made over 75 years and in the limits of 7See letter dated 9/6/1910 by Murray to Thomas Tait, 259 Chairman of Victorian Railway Commissioners its effectiveness. As Millane demonstrated from seeking advice on Millane’s suggestion that McKeen the very beginning, the sanction is far from cars be used on the Outer Circle line rather than absolute in stopping litigants in their tracks. At steam trains. In that he draws Tait’s attention to ‘the best it slows them down and changes their focus to contemptuous terms in the third paragraph’, PROV, the courts and away from defendants. Their activ- VPRS 421/P0, Unit 78, 1910/9768. ities are still a cost to be borne by the system and 8 ‘Slow and Infrequent trains’, Age, 3 May 1910. society. It is not clear that the development of 9 PROV, VPRS 421/P0, Unit 79. The elevated streamlined and nationally consistent regime will circular terminus would be where Federation change this. Certainly, without the participation Square is now located. The Report draws heavily of the Commonwealth courts in Australia a on an 1877 proposal of Patrick Millane offered in national regime is still far from being a reality. response to railway construction proposals of that period. See further ‘Scheme for connecting The more significant control of persistent Melbourne and Oakleigh’, Argus, 28 February litigators appears to be the power given to court 1877, p 7b; ‘Mr Millane’s Railway Scheme’, Argus, registrars to refuse acceptance of litigant 1 August 1877, p 7c; Melbourne Punch, 26 July documents that are irregular or represent an abuse 1877, p 299. of process. The problem is that this occurs largely 10 They were trialled on the Ballarat/Maryborough behind the scene and without the glare of public and Warrnambool/Hamilton lines. See copy accountability. If public confidence is to be memorandum of Chairman, Victorian Railway maintained in this aspect of the courts’ adminis- Commissioners to Minister for Railways dated 13 tration there is a case for greater transparency at May 1915, PROV, VPRS 421/P0, Unit 78, the very least through the publication of numbers 1915/5464 and Harrigan. LJ, Victorian Railways to of litigants affected. A similar observation applies 1962, Commissioners of Victorian Railways, 1962, p 240. to the current invisibility of vexatious orders made 11 For example report of Superintendent of Passenger by the Family Court. Train service dated 5th May 1914, PROV, VPRS Finally, discussion of the utility of the 421/P0, Unit 78, 1914/6282. vexatious sanction needs to note that it does not 12 See exchange of cablegrams between Victorian apply in the context of the many industry Railways and McKeens, April 1911, PROV, VPRS ombudsman schemes such as the Banking and 421/P0, Unit 79, 1912/2936. Financial Services Ombudsman. These alternative 13 See copy letter to Millane from Acting Secretary dispute resolution or ‘private justice’ schemes Victorian Railway Commissioners dated 22 June operate alongside but outside the legal hierarchy 1914, PROV, VPRS 421/P0, Unit 78, covered by the current sanction. Yet their high 1914/11251. profiles and huge caseloads influence current 14 See copy letter from William McKeen to public perceptions of what justice is and how Secretary’s of the Victorian, Queensland and New fairly it is administered. How they meet the South Wales Railways dated 3 March 1913, challenge of querulents has implications for PROV, VPRS 421/P0, Unit 78, 1913/5495. public confidence in the legal system as a whole. 15 Letter to the Editor by RF Millane of McKeen Motor Co in Argus, 22 March 1915 p 4. This is a work in progress.260 16 NAA: A2, 1918/128J, Part 2, Millane letter to H W Churchin dated 6 February 1918. Millane Endnotes would appear to have worked in the USA for 1 Originally s33 Supreme Court Act 1928 (Vic) it is Union Pacific circa 1912–13 for which he was paid now s21 of the Supreme Court Act 1986 (Vic). $US6,000. See NAA: A2, 1918/1285 Part 2

20 INVENTOR, ENTREPRENEUR, RASCAL, CRANK OR QUERULENT?

Millane letter to Hon WA Hughes dated 10 36 ‘Tramway Strike: Extension to Footscray: Men’s August 1917. determined mood’, Argus, 14 April 1923, p 25. 17 ‘Ship building in Australia’, Age, 20 July 1917, p 9. 37 Argus, 29 January 1924, p 9. 18 See application for copyright of literary work of 38 Argus, 2 January 1924, p 8. ‘Prospectus bringing about industrial and financial 39 Argus, 11 July 1924, p 13. co operation’, NAA: A1336, 6597. 40 Victoria, 167 Parliamentary Debates, Legislative 19 NAA: A2, 1918/128J Part A, Millane letter to BW Assembly, 21st October, 1924, 1001. Churchin dated 31st January 1918 at p 4. 41 Motor Omnibus Act 1924 (Vic). 20 See generally NAA: A2, 1918/128J, Part 2 42 Argus, 23 October 1924, p 11. 21 NAA: A2, 1918/128J Part 2. Received in PM’s 43 Argus, 29 January 1925, p 8. department 25 February 1918. 44 Argus, 15 July 1924, p 12. 22 NAA: A2, 1918/128J Part 2 See Memorandum to 45 Argus, 30 January 1925, p 6. Secretary of Prime Ministers departments dated 26 November 1917. 46 Argus, 2 February 1925, p 12. 23 25 April, 1918, NAA: A1336, 6597. 47 Argus, 4 February 1925, p 22. 24 NAA: A2, 1918/128J Part 2, Letter dated 25 48 Cain was later Premier 1943; 1945 and November 1918. 1952–1955. His son, also John Cain was Premier 1982–1990. 25 NAA: A1336, 9187. 49 Victoria, 167 Parliamentary Debates, Legislative 26 ‘City Traffic Congestion: the cause and the Assembly, 28th October. 1924, 1154. remedy’, Age, 4 June 1920 p 8a. See generally Priestley. S, The Victorians: making their mark, 50 The Millane family had moved to Ivanhoe circa Fairfax, Syme and Weldon, Melbourne, 1984, p. 1912. See also Victoria, 167 Parliamentary Debates, 155ff, 166ff. Legislative Assembly, 28th October, 1924, 1154 - 1158. 27 ‘Scheme for connecting Melbourne and Oakleigh’, Argus, 28 February 1877, p 7b; ‘Mr Millane’s 51 ‘Only 40 Buses running’, Argus, 17 February 1925, Railway Scheme’, Argus, 1 August 1877, p 7c; p 12. Melbourne Punch, 26 July 1877, p 299. The 52 ‘Kintrak Service to end’, Argus, 30 January 1925, p scheme was rejected by the government of the day. 11. Patrick Millane was 31 at the time. 53 ‘You can’t beat Millane: down a dozen times but still 28 Patrick Millane had first suggested a central station fights back’, Truth, 11 August 1928, p 1 and for Melbourne in 1878. See ‘Melbourne Central ‘Persistent Litigant’, People, 11 February 1953, p 36. Railway Station’, Argus, 14 May 1878, p 7b. 54 ‘Stage Carriage Act not repealed’, Argus, 17 February 29 NAA: A1336, 9187. 1925, p12. See also ‘Motor Bus Licences: More 30 NAA: A1336, 9187, p 1. Applications’, Argus, 18 February 1925, p 20. 31 This last proposal was an earlier idea. Millane and 55 ‘Motor Bus licenses: further applications’, Argus, his father Patrick had claimed copyright in the 20 February 1925, p 11. plans as a literary work in 1916. NAA: A1336, 56 ‘1000 Licenses wanted: Magistrate says it is 5014. “Absurd”’, Argus, 24 February 1925, p 12. 32 NAA: A1336, 9187, p 33. 57 ‘Stage Carriage Act: further applications possible’, 33 ‘City Traffic: Tramway conversion: cable or electric Argus, 19 February 1925, p. 14. system’, Argus, 8 August 1922, p 8 and ‘Overhead 58 Appointed a High Court Justice in 1929; he was wires: an abomination’, Argus, 10 August 1922, p 9. Chief Justice 1952–1964. See 14 ADB 7. 34 ‘City Traffic: Tramway conversion: cable or 59 ‘Motor Bus Licenses, Applications adjourned’, electric system’, Argus, 8 August 1922, p 8. Argus, 21 February 1925, p 34. See also ‘Persistent 35 In the Revenue Bill 1905 provision was made for Litigant’, People, 11 February 1953, p 36. the purchase by the Victorian government of 8 60 ‘Motor Bus Licenses: Magistrates decision’, Argus, Motor Omnibuses at £1300 each. In response to a 27 February 1925, p 9. question Thomas Bent MLA said: ‘it had not yet 61 A written directive was given to the Council been determined where they would run’. See Licensed Vehicle Committee by the Public Works Victoria, 110 Parliamentary Debates, Legislative Department to prosecute non-complying Assembly, 2nd August, 1905, 716. In Sydney an owners/drivers in the Petty Sessions court and any Omnibus fleet of four had commenced in 1910. By appeals in the Supreme Court. The Council made 1922 the fleet exceeded 200 over 95 routes. See it clear that it expected the government to under- ‘Motor Bus Service’, Argus, 31 January 1923, p 8. write its costs. See PROV, VPRS 9309/P1, Unit

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14, Minutes dated 11 March 1925, 25/1330; stamp’ instead of his signature. Dixon KC infor- PROV, VPRS 4035/P0, unit 14, Item 25/1330 . mally counselled the MCC against further use, 62 ‘Bus test prosecutions: decisions reserved’, Argus, 3 PROV, VPRS 3183/P3, Unit 18, File 27/727 and April 1925, p 9. ‘Rubber Stamp signature: is it legally sufficient?’ 63 ‘Bus Licenses: Ministry upheld: Test cases decided’, Argus, 10 February, 1927, p 9. Millane was again Argus, 9 April 1925, p 9. unsuccessful when he tried the same defence when 64 ‘Unlicensed buses: prosecutions authorised’, Argus, prosecuted himself shortly thereafter, PROV, 12 June 1925, p 11. VPRS 251/P0, Unit127, file 4224 and PROV, 65 PROV, VPRS 4035/P0, Unit 14, Minutes of VPRS 266/P0, Unit 894. See also ‘Vacation Licensed vehicle Committee dated 28 May, 1925. practice notes; Bees and Motor cars: litigants illus- tration’, Argus, 9 July 1926, p 9. 66 ‘Council officers charged: strange prosecutions fails’, Argus, 12 June 1925, p 18. See PROV, VPRS 81 For example see Affidavit of RF Millane sworn 19 4035/P0, Unit 14, Minutes of Licensed Vehicle March, 1927 NAA: A10074, 1927/9. Special leave Committee dated 20 January, 1926. refused on 24 March 1927. 67 ‘Stage Carriage Act: bus prosecution fails’, Argus, 82 Victoria, 175 Parliamentary Debates, Legislative 16 June 1925, p 13 and ‘Tramways Buses: Licences Council, 22 December, 1927, 4054. challenged: costs against informant’, Argus, 17 July 83 ‘Prohibition of parking: Introducing new By- Law: 1925, p 4. cannot operate for several months’, Argus, 29 68 ‘Stage Coach prosecution: Dismissed with costs’, September 1926, p 25. ‘Parking problems: Lord Argus, 3 July 1925, p 16. Mayor’s plea: “Bear with City Council”’, Argus, 16 69 ‘Stage Carriage Act: bus prosecution fails’, Argus, 16 February 1927, p 22. June 1925, p 13. 84 Affidavit of Frederick Charles Percy Hill, sworn 1 70 ‘Protests against Bus Act’, Argus, 28 December June, 1930, Supreme Court File 4360 of 1930. 1925, p 13. 85 ‘Persistent Litigant’, People, 11 February 1953, p 37. 71 Motor Omnibus Act 1925 (Vic) and Victoria, 170 86 Affidavit of Frederick Charles Percy Hill, sworn 1 Parliamentary Debates, Legislative Assembly, 3 June, 1930, Supreme Court File 4360 of 1930. See December 1925, 2589. also ‘Persistent Litigant’, People, 11 February 1953, 72 Affidavit of Frederick Charles Percy Hill, sworn 1 p 38. July 1930, Supreme Court File 4360 of 1930 and 87 The 1912 Sands and McDougall Melbourne ‘Pegged out Goldmine in city in law battles’, Truth, Directory lists at Locksley Road, Rupert, his father 6 October 1951, p 2. Patrick and his brother Gilbert (Builder). In 1920 73 It was published with full Explanatory sister Florence is listed as living nearby at 84 Lower Memorandum and the Report of the Joint select Heidelberg Road. She purchases the property in Committee. It was essentially the result of research 1922. Rupert would also use this address in court by Sir Leo Cussen. documents. Interestingly, the street running paral- 74 Eleven summonses were issued at the Melbourne lel with Locksley is named Gilbert. District Court in 1926. See Affidavit of Frederick 88 PROV, VPRS 1748/P2, Unit 8, p 441. Charles Percy Hill sworn 1 June 1930 Supreme 89 PROV, VPRS 4339/P1, Unit 1, p. 22 dated 8 Court File 4360 of 1930. October, 1925. 75 ‘Tramways and buses: two Supreme Court writs’, 90 ‘Baldwin’s Ministry Plan: 2000 Steelhouses in Argus, 25 January 1926, p 9; ‘Writ against Scotland: Labour opposition’, Argus, 13 February Minister’, Argus, 30 January 1926, p 29. 1926, p 35; ‘An all rubber house’, Argus, 8 May 76 ‘Writ against Council; Judge reproves litigant’, 1926, p 14; ‘Savings Bank Houses: tenders’, Argus, Argus, 13 April 1926, p 9. 31 May 1926, p 12; ‘Fisherman’s Bend; Banks new 77 ‘His own lawyer: Judge discourages litigant’, Argus, proposal’, Argus, 16 June 1926, p 20. 29 April 1926, p 9. 91 ‘Persistent Litigant’, People, 11 February 1953, p 78 ‘Control of Buses: Mr Cameron satisfied: 36–37. At that time empty kerosene tins were also Tramways revenues again normal’, Argus, 30 June being used for all manner of household items such 1926, p 23. as beds, chairs, stoves, buckets and meat safes. See 79 ‘Stage Coach Licence: officially considered value- further Broome. R, The Victorians: Arriving, less’, Argus, 28 December 1929, p 14. Fairfax, Syme &Weldon, Melbourne, 1984, pp. 80 In one unsuccessful Order to Review proceeding 141–142. on behalf of his driver Frank Ziino objection had 92 See Affidavit of James Bastian Richards, been taken to the improper issue of the summons. Prothonatory of the Supreme Court, sworn 20 The issuing Justice of the Peace had used a ‘rubber June, 1930 Supreme Court File 4360 of 1930.

22 INVENTOR, ENTREPRENEUR, RASCAL, CRANK OR QUERULENT?

93 ‘£2,000 Home made of Kerosene tins: Surprise for General Latham permit the registry to decline to Ivanhoe: new idea for suburban Houses’, Argus, 1 receive further papers unless directed to by a Judge, May 1926, p 1. See also Affidavit of Rupert NAA: A432, 1929/930, Report dated 12 March Frederick Millane, Sworn 28 July, 1930 Supreme 1929. Court File 4360 of 1930. 108 The property was eventually sold by the Trustee in 94 31 people lost their lives in the 1926 bushfires. See Bankruptcy for £277/10/- but only after delayed by Noble. WS, Ordeal by fire: the week a state burned litigation. See ‘You can’t beat Millane: Down a up, 1977. p. 8 dozen times but still fights back’, Truth, 11 August 95 PROV, VPRS, 1748/P2, Unit 10, Minutes dated 1928, p 1. 20 May 1926, p 744. 109 Millane v President etc of Shire of Heidelberg [1928] 96 PROV, VPRS, 1748/P2, Unit 10, p. 813. VLR 52. 97 ‘Kerosene-Tin House: Owners prosecutions fail’, 110 ‘Old legal phrases: Land cases at Heidelberg’, Argus, 18 June 1926, p 15. Argus, 25 May 1928, p 5. 98 The Writ against10 Councillors and the Shire 111 ‘“A Court Ghost”: Magistrates advice to Plaintiff’, Building Inspector, was summarily dismissed by Argus, 11 November 1927, p 20. Schutt J in the Practice Court. Millane lodged an 112 HE Elliott was a distinguished World War 1 appeal. Application for an injunction pending soldier and politician. His successful, although appeal dismissed by Mc Farlan J. See PROV, troubled career, offers a contrast to Millane’s. See VPRS 4361/P0, Unit 1, Building By Law further 8 ADB 428. Committee Minutes dated 10 June 1926, p 175; 113 PROV, VPRS 4035/P0, Unit 14, Minutes of PROV, VPRS 4339/P0, Unit 1, Building Licensed Vehicle Committee dated 20 January Inspectors Report dated 15 July 1926, p 45 and 1926. ‘Writ against Council: struck out by Court’, Argus, 114 For a discussion of the history of that legislation, 19 June 1926, p 16. see Taggart. M, ‘Alexander Chaffers and the 99 PROV, VPRS 9531/P1, Unit 12, Shire Minutes Genesis of the Vexatious Actions Act 1896’, (2004) dated 20 July 1926, p 30. 63 Cambridge Law Journal 656. 100 ‘Kerosene-Tin House: Owners prosecutions fail’, 115 PROV, VPRS 4025/P0, Unit 144, Letter dated 10 Argus, 18 June 1926, p 15. February 1926, p 190. 101 ‘Pegged out Goldmine in City in Law Battles’, 116 ‘Vexatious Actions: State Bill Contemplated: Truth, 6 October 1951, p 3. Suppression of “Cranks”’ , Argus, 5 August 1926, 102 See Affidavit of Arthur Coyte Tingate, Heidelberg p 11. Petty Session Clerk, sworn 25 June 1930 and 117 PROV, VPRS 4025/P0, Unit 152, Letter from Frederick Charles Percy Hill, Melbourne Petty Town Clerk to Attorney General dated 24 May Sessions Assistant Clerk Sworn 1 July 1930, 1927. Supreme Court File 4360 of 1930. 118 Victoria, 173 Parliamentary Debates, Legislative 103 See Affidavit of James Bastian Richards, Council, 13th September, 1927, 1228ff. Prothonatory of the Supreme Court, sworn 20 June 1930 Supreme Court File 4360 of 1930. 119 Victoria, 173 Parliamentary Debates, Legislative Assembly, 15th September, 1927, 1358, 1363ff. 104 Between 1928 and the start of 1930 he filed five affidavits and requests for Special Leave to appeal 120 Victoria, 173 Parliamentary Debates, Legislative in the High Court Melbourne registry. None are Assembly, 15th September, 1927, 1358. successful. See for example NAA: A10074, 1928/8. 121 7 ADB 310. 105 PROV, VPRS 1748/P2, Unit 10, Shire Secretary 122 Victoria, 173 Parliamentary Debates, Legislative to Fink Best and Miller, Solicitors dated 22 Assembly, 15th September, 1927, 1361ff. October 1926, p 284. 123 Victoria, 175 Parliamentary Debates, Legislative 106 ‘Estate sequestrated’, Argus, 4 August 1927, p 7. Assembly, 22nd December, 1927, (97). See also 107 Certificate of Discharge granted 4th May 1930 ‘Legislative Assembly: End of session rush: Incident subject to payment of £15.15.0 costs to creditors. of long sitting; “Strangers” ordered out’, Argus, 23 It appears never to have been paid. See Affidavit of December 1927, p 11. George Neville Almond, Solicitors Law Clerk, 124 Victoria, 178 Parliamentary Debates, Legislative sworn 30 June 1930 Supreme Court File 4360 of Assembly, 13th December, 1928, 3418ff. 1930. Millane was so troublesome to the registry of 125 For example Constance May Bienvenu (declared the Court of Insolvency with his constant ‘unintel- Victoria, 1969 and in the High Court, 1971) in her ligible’ filings and applications that the Official affidavit sworn 13 May 1970, NAA: A10074, Accountant requested that Federal Attorney 1970/8.

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126 Victoria, 175 Parliamentary Debates, Legislative 145 Anderson. K, Fossil in the sandstone, the recollecting Council, 22nd December, 1927, 4054ff. judge, Spectrum Publications, Melbourne, 1986, p 127 (1929) 3 Law Institute Journal 120. 129 and also Affidavit of Rupert Frederick Millane 128 PROV, VPRS 9531/P1, Unit 13, Council dated 20 November 1940, Supreme Court File Minutes, 17 December 1929, p 71. 4360 of 1930. 129 (1929) 3 Law Institute Journal 120. 146 ‘Millane drives Stage Coach through Bus law’, 130 ‘Prolific Litigant: 213 cases in four years: Court Argus, 8 August 1931, p 12. asked to restrain’, Argus, 18 July 1930, p 7. See also 147 Mr Keane MLA, Victoria, 186 Parliamentary Supreme Court File 4360 of 1930 Debates, Legislative Assembly, 26 August, 1931, 131 There is substance in this submission. Section 33 2549ff became effective in December 1929. After that date 148 PROV, VPRS 3183, P3, Unit 189, 4775, Letter until the hearing, according to the affidavit from Coburg Town Clerk to Town Clerk, City of material filed in support of the application, Millane Melbourne dated 27 October 1931. issued only one Petty Session court proceeding. See 149 1931 Police Gazette, Week ending 6 August, p 847. In re Millane, [1930] VLR 381 at p. 383 and Supreme Court Supreme Court File 4360 of 1930. 150 1931 Police Gazette, Week ending 2 June, p 628. 132 In re Boaler (1915) 1KB 21. 151 ‘Coburg ‘Bus service: Police seize vehicles: Distress 133 In re Millane,[1930] VLR 381. See also warrant for unpaid fines’, Argus, 5 September ‘Suppressing a Litigant: Case under new Act: 1931, p 21; ‘Seizure of Motor-’buses’, Argus, 19 Motion against Rupert F. Millane’, Argus, 12 September 1931, p 24; PROV, VPRS 4035/P0, August 1930, p 7 and ‘Millane sits on mountain of Unit 15, Item 31/3852. law awaiting legal earthquake’, Truth, 9 August 152 NAA: A10074, 1932/7. 1930, p 13. 153 ‘Law Suit stayed forever: Millanes action: High 134 Special leave refused 16 October 1930. See NAA: Court Judges comment’, Herald, 29 July 1932, p 8; A10074, 1930/47. For a subsequent application ‘“For ever stayed”: Action by RF Millane’, Age, 30 see NAA: A10074, 1930/51. July 1932. See also NAA: A10074, 1931/3. 135 Edna Francis Isaacs (1908–1989) (also known as 154 1933 Police Gazette, week ending 23 September, p Davis and Laszloffy) declared 21 July 1941. See 935. See also ‘Persistent Litigant: Committed to Supreme Court File 501 of 1941. Prison’, Argus, 24 March 1933, p 8. 136 Osborn P, A Concise Law Dictionary, Sweet and 155 Affidavit of Rupert F Millane sworn 20 November Maxwell, London, 1964, p. 45. 1940 Supreme Court File 4360 of 1930. 137 ‘Contempt alleged: Attorney General acts: Action against RF Millane’, Argus, 9 December 1930, p 5. 156 PROV, VPRS 251/P0, Unit 136, item 5023. 138 (1899–1958) An inventor and engineer Kerby is 157 ‘Rehearing of cases: Sought by Rupert Millane’, also a partner in Highway Motors. In 1927 he Argus, 30 November 1933, p 5. lodged a patent for an improved axle spring for an 158 Florence Millane had bought 84 Lower Heidelberg automobile in France. See v3.espacenet.com/ Road Ivanhoe in 1922. Through the 1920s this was textdes?DB=EPODOC&IDX=FR627064&F=0& a common address for service for Rupert Millane. QPN=FR627 Accessed 3rd October 2005. In later The Bank commenced foreclosure proceedings in life he would hold the lease for the iconic kiosk on 1930. See Commissioners of the State Savings Bank St Kilda Pier. See further Peterson. R, A place of of Victoria v Millane [1931] VLR 18. sensuous resort: Buildings of St Kilda and their people, 159 NAA: A10074, 1955/59, Affidavit of R.F. Millane St Kilda Historical Society, Melbourne, 2004, p sworn 15 February 1956. 10. 160 The action had been stayed in 1927 upon Millane’s 139 Argus, 11 May 1931, p 5. Bankruptcy. See Millane v Shire of Heidelberg 140 Argus, 22 May 1931, p 9. [1928] VLR 52. See also Millane v Shire of 141 Argus, 29 May 1931, p 13. Heidelberg [1936] VLR 8. 142 Argus, 30 May 1931, p 19. 161 PROV, VPRS 251/P0, Unit 140, item 72 and 143 This was an order of Mann J referred to in Notes PROV, VPRS 251/P0, Unit 143, item 2001. of Barry J dated Aug/Nov 1950 contained in 162 NAA: A1336, 32749. Supreme Court file 4360 of 1930. See also ‘Millane drives Stage Coach through Bus law’, Argus, 8 163 NAA: A10074, 1938/28. August 1931, p 12. 164 NAA: A10074, 1943/18. Millane received 1025 144 See extract in Order of Full Court dated 27 May primary votes. 1953 in NAA: A10074, 1953/24. 165 NAA: MP150/1, 356834.

24 INVENTOR, ENTREPRENEUR, RASCAL, CRANK OR QUERULENT?

166 NAA: MP150/1, 514/201/1826Letter dated 21 Corres. Colin Kerby dated 6 October 2005. Rupert March 1942 from Secretary, Ordnance, Torpedoes also stayed in the garage at 2 College Street and Mines. Hawthorn, the home of his Millane cousins. See 167 NAA: A1336, 45218. interview with Brendan and Bernard Millane dated 168 NAA: A1336, 46393. 17 May 2005. 169 This précis of the facts drawn variously from 189 Mr John Rossiter MLA (Brighton). Victoria, 271 Affidavit and Judges notes contained in Supreme Parliamentary Debates, Legislative Assembly, 6 Court file 4360 of 1930 and NAA: 10074, November, 1963, 1813. 1948/29; NAA: A10074, 1951/17, NAA: A10074, 190 Recollections of this period gathered from inter- 1955/59. views with Graham Fricke 13 February 2005; 170 See for example NAA: A10074, 1951/17, NAA: Barney Cooney 25 February 2005; Gordon Spence A10074, 1951/18. 9 March 2005; Philip Opas 21 March 2005 and Sir 171 NAA: A10074, 1954/3. Counsel for Browne was Edward Woodward 1 February 2006. (now Sir) Edward Woodward. See interview with 191 Interview with Philip Opas 21 March 2005. Sir Edward Woodward dated 1 February, 2006 and 192 Mullen, P, Lester, G, ‘Vexatious Litigants and Woodward, E. One Brief Interval, Miegunyah, unusually Persistent Complainants and Petitioners: Melbourne, 2005, p 48. From Querulous Paranoia to Querulous 172 Notes of Sholl J dated 30 April 1952 in Supreme Behaviour’ (2005) 23:1–17 Behavioral Sciences and Court File 4360 of 1930 and NAA: A10074, the Law. 1954/3. 193 See generally Krafft-Ebbing, Von R. ‘Uber den 173 NAA: A10074, 1954/4. Sogenannten Querulantenwahsinn’, (1879) 35 174 NAA: A10074, 1955/56. Allgemeine Zeitschrift der Psychiatrie, 395–419. 175 NAA: A10074, 1955/59, Affidavit of RF Millane 194 See generally Kraepelin, E Lectures in Clinical sworn 15 February 1956. Psychiatry, (Trans. Johnstone, E.) Bailliere, Tindall, 176 Order of Martin J dated 6 October 1955 Supreme Cox, London, 1904. Court file 4360 of 1930. 195 See for example Ungvari, G ‘Successful treatment 177 For example order of Fullagar J dated 5 November of litigious paranoia with Pimozide’, (1993) 38 1956 in NAA: A10074, 1955/59 Canadian Journal of Psychiatry, pp. 4–8. 178 NAA: A10074, 1959/42. 196 See for example Mullen, P ‘Disorders of Passion in 179 Manual inspection of Supreme Court file 4360 of troublesome Disguises: Underdiagnosed 1930 in March 1984. Psychiatric Syndromes’, in Bhugra, D and Munro, 180 Affidavit of RF Millane sworn 17 April 1947 A (eds), Blackwell Science, London, 1997, Chapter Supreme Court file 4360 of 1930. 7 pp 395–419. 181 Notes of Barry J dated Aug/Nov 1950 Affidavit of 197 Esquirol, E ‘Mental Maladies: a Treatise on RF Millane sworn 15 February 1956. In 1953 the Insanity’, (Trans. Hunt, E), 1845 cited by Berrios, Full court of the Supreme Court did spend some G and Porter, R. A History of Clinical Psychiatry, time listening to an in person appeal of the Stage New York University Press, New York, 1995, p 361. Coach matters. It was dismissed. See Order of 198 Kraepelin, n 194. Duffy, Sholl and Smith JJ dated 28 May 1953 copy 199 See Lester, G, Wilson, B, Griffin, L, Mullen, P located in NAA: A10074, 1953/24. ‘Unusually persistent complainants’ (2004) 184 182 Affidavit of RF Millane sworn 30 August 1951 Journal of Psychiatry 353. Supreme Court file 4360 of 1930. 200 Berrios, G. Porter, R. A History of Clinical 183 6 October 1951, p 3. Psychiatry, New York University Press, New York, 184 Affidavit of RF Millane sworn 25 October 1951 1995, p 366. Supreme Court file 4360 of 1930. 201 Hirsch, S. Shepherd, M. (eds), Themes and 185 Order of Dean J dated 10 December 1951 Variations in European Psychiatry: an Anthology, Supreme Court file 4360 of 1930 and PROV, Wright and Sons, Bristol, 1974, Ch 8. VPRS 28/P4, Unit 206. 202 Mullen, n 196. 186 His father Patrick died in 1922, aged 77 and his 203 Dietrich, von H. ‘Der Querulant Munchener Mother Annie in 1953, aged 94. Medizinische Wochenschrift’, (1968) 110 187 ‘After 27 years he approaches court’, Sun News Jahrgang, pp 1445–1450. Pictorial, 8 March 1957, p 16. 204 Chadwick, P., Birchwood, M., Trower, P. 188 Noble Kerby’s son Colin provided accommodation Cognitive Therapy for delusions, Voices and for a time in his Middle Park warehouse. Priv. Paranoia, Wiley and Sons, Chichester, 1996.

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205 Douglas, M. Risk and blame Essays in cultural Interviewing techniques for emotional liability, theory, Routledge London, 1992, Chapters 1–3. anger and threats of harm to the self, interviewer 206 Pang, A. Ungvari, G. Lum, F. Lai, K. Leung, C. and third parties. Unpublished Manual. Refer ‘Querulous Paranoia in Chinese patients: a cultural Victorian Institute of Forensic Medicine, Fairfield, paradox’, (1996) 30 Aust NZ J Psychiatry 463–466. Victoria 3078. 207 See generally Dickens, C. Bleak House, (First 231 Kolle, n 214. published 1853), Penguin Classics, London, 1996 232 Heydt, n 218; Caduff, n 218. edition. 233 Ibid. 208 Walker, C. ‘Delusions: What did Jaspers really 234 Mullen, P. ‘The Pathological Extensions of Love’ say?’ (1991) 159 British Journal of Psychiatry, pp (1993) 165 British Journal of Psychiatry 614–623 95–103. and See for example Ungvari, G. ‘Successful treat- 209 Pang, n 206. ment of litigious paranoia with Pimozide’ (1993) 210 Lester, n 199. 38 Canadian Journal of Psychiatry 4–8. 211 Kraepelin, n 194; Astrup, C. ‘Querulent Paranoia: 235 Ibid. a followup’, (1984) 11 Neuropsychobiology, pp 236 Only Queensland maintains a publicly available 149–154 and Krafft-Ebbing, n 193. (internet) register. See S.9 Vexatious Proceedings Act 212 Astrup, C. ‘Querulent Paranoia: a followup’, 2005 (Qld). (1984) 11 Neuropsychobiology, pp. 149–154. 237 See for example Section 21(1) Supreme Court Act 213 Pons, R. Delires Querulents, Societe Medico- 1986 (Vic). Psychologique, 23rd–24th October, 1987, pp. 238 Section 21 (2) Supreme Court Act 1986 (Vic). 104–108. 239 For a general discussion of the criteria for making 214 Kolle, K. ‘Uber Querulanten’, Archiv fur Psychiatrie an order see Smith, S. ‘Vexatious Litigants and und Nervenkrankheiten, Verlag von Julius Springer, their Judicial Control — the Victorian Experience’ Berlin, 1931, pp 24–100. (1989) 15 Mon. L R 49 at 57–65. 215 Ungvari, G. Pang, A. Wong, C ‘Querulous 240 Means ‘in person.’ In Australia such litigants are Behaviour’ (1997) 37 Medicine Science and Law referred to as ‘self represented’ or ‘unrepresented’. 265–270. 241 In 1963, California was the first of five American 216 Kolle, n 214. states to introduce a Vexatious Litigant statute. 217 Astrup, n 212. The sanction then focused on the requirement that 218 Heydt, van der A. Querlatoische Entwicklungen, security be posted before any litigation could Marhold: Halle a. S, 1952; Caduff, F. continue. In 1990 the Californian legislature ‘Querulanz—ein verschwindendes psychopathol- amended the statute to provide the further sanction gisches verhaltensmuster?’ (1995) 63 Fortschr. of a ‘pre filing order’. This effectively adopted the Neurol. Psychiat 504–510. Australian sanction of barring a declared litigant 219 Freckelton, I. ‘Querulent Paranoia and the from issuing new proceedings without first obtain- Vexatious Complainant’ (1988) 11 International ing judicial leave. For a full discussion of the Journal of Law and Psychiatry 127. Californian statute see Rawles, L W ‘The 220 Caduff, n 218. California Vexatious Litigant Statute: a viable 221 Pang, n 206; Astrup, n 212 and Heydt, n 218. judicial tool to deny the clever obstructionists access?’ (1998) 72 SCALR 275. 222 Kraepelin, n 194. 242 For example see Victorian Supreme Court Rule 19 223 Ibid. and Federal Court Order 46 Rule 7A. 224 Rowlands, M. ‘Psychiatric and legal aspects of 243 Between 2002–2004 the Federal Court is believed persistent litigation’ (1988) 153 British Journal of to have placed thirty-six people on their register for Psychiatry 317–323. having had documents rejected as frivolous, 225 Freckelton, n 219. vexatious or an abuse of the courts process. See 226 Lester, n 199. Pelly, M. ‘Nuisances in court: judges get tough on 227 Freckleton, n 219; Goldstein, R. ‘Paranoids in the serial pests’, Sydney Morning Herald, 27 May 2004, legal system: the litigious paranoid and the p 18. paranoid criminal’ (1995) 18 The Psychiatric 244 For a historical discussion of these controls see Clinics of North America 303–315. Smith, n 239. 228 Ibid. 245 For example AG (NSW) v Wentworth (1988) 14 229 Lester, n 199. NSWLR 481. In the United States the various state 230 For example refer Lester, G. Workshops for manage- vexatious litigant sanctions have faced regular ment of the unusually persistent complainant; challenges on constitutional grounds. See further

26 INVENTOR, ENTREPRENEUR, RASCAL, CRANK OR QUERULENT?

Rawles, L W. ‘The California Vexatious Litigant 251 Queensland, Parliamentary Debates, Legislative Statute: a viable judicial tool to deny the clever Assembly, 9 August 2005, 2207 obstructionists access?’ (1998) 72 SCALR 275 and 252 For a review of the English and Australian authori- Schiller. E and Wertkin, J A. ‘Frivolous Filings and ties supporting this position see Commonwealth Vexatious Litigation’ (2001) 14 Geo J Legal Ethics Trading Bank v Inglis (1974) 131 CLR 311. 909. 253 [2000] Ch 484. 246 Vexatious Proceedings Restrictions Act 2002 (WA). 254 [2004] 1 WLR. 88 See also Thompson, C. ‘Vexatious Litigants — Old 255 Taggart, n 114, p. 681. See also Taggart, M. and phenomenon, modern methodology: A considera- Klosser, J., “Controlling Persistent Vexatious tion of the Vexatious Proceedings Restriction Act Litigatns” in Groves, M. Law and Government in 2002 (WA)’, (2004) 14 JJA 64. Australia, Federation, 2005, Sydney, p. 277. 247 Queensland, Parliamentary Debates, Legislative 256 See Attorney-General for the State of Victoria v Kay Assembly, 9 August 2005, 2207. [2006] VSC 9 and Attorney-General for Victoria v Kay [2006] VSC 11. 248 Queensland, Parliamentary Debates, Legislative 257 Research efforts to locate possible medical records Assembly, 9 August 2005, 2207. when Millane was gaoled in 1932 have so far 249 The three multiple declarants are: Goldsmith proven unsuccessful. COLLINS (High Court (1952) and Victorian 258 Murdie, A. ‘Vexatious Litigants and de Supreme Court (1953)); Constance BIENVENU Clerambault syndrome’ (2002) 152 New Law (Victorian Supreme Court (1969) and High Court Journal 61 at p 62. (1971)) and Alan SKYRING (High Court (1992), 259 For an example of a contemporary persistent Queensland Supreme Court (1995) and Federal litigant see Phillip Morris Ltd v Attorney-General for Court (1999)). Victoria and Lindsey [2006] VSCA21. 250 For example see Re Skyring [1995] QSC 55. 260 Lester, n 199. ◆

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