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Was Australia's First Declared Vexatious Litigant. an Inventor, Entrepre

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Was Australia's First Declared Vexatious Litigant. an Inventor, Entrepre Inventor, Entrepreneur, Rascal, Crank or Querulent?: Australia’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 jurisdictions 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 Melbourne 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 England 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 United States 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 Scotland, 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.
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