The Vexatious Litigant Part 1

The approach of the courts to litigants in person

There is clearly a tension between the need to provide protection to parties from vexatious and unnecessary litigation on the one hand and the need to protect the rights of parties to bring to the Courts claims and grievances which they reasonably have.

Experience and consideration of the cases shows that it inevitably follows that it is litigants in person who are more likely to fall foul of the vexatious litigation provisions.

However, the Courts have consistently recognized the need to accommodate litigants in person and to extend to them indulgences which, generally speaking, are not available to litigants who are represented by solicitors or counsel.

In the recent decision in the Court of Appeal of Queensland in du Boulay v Worrell & Ors [2009] QCA 63 Muir JA at [68] — [69] said:

“[68] The appellant appears to have succumbed to the phenomenon which inflicts many self-represented litigants of becoming so fixated on real or perceived wrongs that he has lost any semblance of objectivity and the power of discrimination. It does not appear to have occurred to him that by heaping allegation on allegation he has put it beyond his ability to plead, let alone conduct and finance his case. Nor does it appear to have occurred to him that the myriad of allegations has a tendency to destroy whatever credibility may have attached to a case involving fewer allegations more obviously supported by clearly identified material facts.

[69] It may be that self-represented litigants should be afforded a degree of indulgence and given appropriate assistance.22 But if a self-represented person wishes to litigate, he or she is as much bound by the rules of Court as any other litigant. Those rules exist to facilitate efficient, fair and cost-effective litigation. The Court’s duty is to act impartially and ensure procedural fairness to all parties, not merely one party who may be disadvantaged through lack of legal representation. The other party to the litigation is entitled to protection from oppressive and vexatious conduct regardless of whether that conduct arises out of ignorance, mistake or malice.”

In that decision Muir JA referred to Bhagat v Global Custodians Limited [2002] FCA 223 and Rajscki v Scitec Corporation Pty Ltd (unreported, Supreme Court of NSW, Court of Appeal, 16 June 1986).

In Bhagat v Global Custodians Limited (supra) the Federal Court Court of Appeal at paragraph 12 it is said as follows:

“[12] Mr Bhagat is a vigorous litigant. He told the Court that he is presently engaged in over thirty separate sets of legal proceedings, many, and perhaps most, of which directly or indirectly involve the judgment creditor. Fortunately, it will not be necessary for the Court to examine all those proceedings, but it will be necessary, because of the numerous documents to which Mr Bhagat took us, to refer to some of them. Some indication of the intensity with which these proceedings were litigated may be gauged from the fact that the judgment creditor, notwithstanding that it was the respondent to Mr Bhagat’s application for leave to appeal, prepared the Appeal Book and lodged no less that seven volumes of various materials comprising, in all, 2528 pages. Mr Bhagat was not, however, satisfied that the Court would be sufficiently benefited by this generous amount of material: he filed a further 4353 pages of pleadings, affidavits and exhibits to affidavits which he had extracted from his many pieces of litigation. (That number does not include the several documents that Mr Bhagat handed up during the course of his submissions). It transpired, during the course of the hearing, that the greater part of the material that had been included in the Appeal Book had not been before the primary judge and should not have been placed before this Court. This application had been rushed into the November 2001 Full Court hearings on short notice and without the benefit of a Deputy Registrar exercising control over the contents of the Appeal Book. The proliferation of paper in this application shows that there is a need for such control, particularly in those cases where a party is unrepresented.”

The approach of the Courts is to try to assist litigants in person but there are limits. However, litigants in person are still bound by the law of evidence and the rules of procedure. Care must be taken to ensure that the assistance given to litigants in person is not such that other parties form the belief, either real or imagined, that the litigant in person is being favored or given an unfair advantage.

There are a number of aspect which are frequently associated with litigants in person which can cause or contribute to litigants in person becoming vexatious litigatnts.

Passionate Obsession with the Cause of Action

An examination of a number of the cases (I have set out citations to such at the end of this paper) where vexatious litigant applications have been considered, show that the litigants often have a strongly held belief, that they have been treated unfairly and on occasion oppressively and perhaps dishonestly by Government Departments, large and seemingly powerful corporations or institutions such as Universities.

When litigants with similar passionate beliefs instruct legal practitioners and engage them to conduct their litigation they will, at least usually, receive advice from ther legal practitioners which identifies the areas of disputation which are appropriate to include in the proposed litigation. Often many of the complaints which are raised by litigants in person are matters which, although possibly relevant to questions of background and circumstance, are not matters which can be, either practically or as a matter of law, determined by the Courts. Moreover, they are often simply irrelevant and scandalous.

Frequently, the litigant in person confuses the difference between what is and what is not relevant and by combining within the proceedings numerous complaints and ill considered remedies, the proceedings become unmanageable and on occasion indecipherable. The pleadings are often simply a stream of consciousness.

The unfortunate aspect of that is that often, litigants in person do have a reasonable and proper basis for seeking redress, but it is so overwhelmed by the nature of the proceedings that it gets mixed in the morass of the action such that it is lost along with other unmeritorious claims.

Absence of an Adverse Cost Order Disincentive

Experience would suggest that often the vexatious litigant in person is either a corporation or a natural person who has little or nothing in the way of assets. In the usual course of litigation, parties must constantly be conscious of the risk of not only their own legal costs associated with the litigation, but also the risk of adverse cost orders being made against them. The litigant in person who has no practical exposure to any adverse cost order is not likely to give any weight to the risk of such orders. So that one of the “realities” of litigation which have a real impact upon the manner in which litigation is conducted and in particular the willingness to attempt to settle proceedings, is missing. It clearly gives the litigant in person a distinct advantage and lever.

This also is a concern for persons attempting to mediate these dispute as one of their prize weapons, “the costs…think of the costs..” does not work.

Whilst in the case of a corporate litigant, the other parties have the opportunity of seeking orders for security of costs under the relevant Rules of Court Chapter (17 of the Queensland Uniform Civil Procedure Rules 1999) or s.1335 of the Corporations Act 2001 and arguable, the inherent power of the superior Courts, such a process is not readily available where the litigant in person is a natural person.

Whilst it is not impossible to seek an order for security of costs against a natural person it is obviously only in fairly rare and extreme circumstances that it is granted. This is particularly so where there are other enlivening circumstances such as absence from the jurisdiction or bringing the proceeding in a representative capacity.

It seems to me, that it would not be unreasonable for a Court, when dealing with a person who had habitually and unreasonably commenced litigation to have regard to those facts when considering whether or not an order for security of costs should be made. That pre-supposes that at that stage, no order under any of the vexatious litigation acts or regulations has been made with respect of that person.

Prolixity of Documents

Most probably because of the intensity of feeling about the proceedings, the need to tell the litigant’s story in detail to someone in authority and a lack of understanding of the proper forms and procedures for commencing and conducting litigation, it is frequently the case that the documentation and inevitably the statement of claim and other pleadings, are prolix and indecipherable.

It seems as if the litigant in person is determined to tell the story and to tell it in a forum where the person believes maximum exposure will be given to the perceived “wrongs” and often alleged “criminal” conduct of their opponents.

Forum Swapping

It is likely that a vexatious litigant who has been prevented from initiating or pursing litigation in one jurisdiction either by the appeal process or a vexatious litigant order in that jurisdiction will then attempt to pursue the other parties in other jurisdictions such as the Courts of other States or the Federal Court structure.

Enthusiasm to Pursue the Appeal Process

One’s experience and a review of the cases also supports the contention that litigants in person are most enthusiastic in their pursuit of the appeal process. That, together with the matter which I touched upon before concerning the fact that the litigant in person often has no exposure to any adverse cost order, can create a significant problem for the other parties.

As is often the case, where the parties to proceedings brought by the litigant in person are represented their costs grow at an alarming rate, often compounded by the manner in which the proceedings are conducted by the litigant in person, particularly with regard to the volume and content of the pleadings. This can cause a significant increase in the legal fees which are incurred by those other parties, over and above those which would normally be incurred.

The course of the proceedings often require the other parties to bring interlocutory applications in an attempt to the strike out or seek clarification and particulars of the statement of claim.

The litigant in person often responds to adverse rulings on such matters by pursing the appeal process by firstly heading off to the Court of Appeal and then, if receiving an adverse result there almost inevitably, commencing a special leave application in the High Court.

Each and every one of those steps involves the other parties in significant cost which they are unlikely to ever recover against the litigant in person.

It is not difficult to see that by reason of the manner in which actions by litigants in person are conducted, frequent interlocutory applications are often necessary and inevitably they may lead to the full appeal process being undertaken by the litigant in person with respect to each and every such order.

Further, the litigant in person can also bring interlocutory applications, albeit apparently hopeless and ill conceived, which once again may set in train the appeal process.

It would be naïve to think that some vexatious litigants in person have not comprehended that the other parties are subject to significant costs and that they see the process of constantly appealing as being a lever to encourage the other parties to give careful consideration to the economics of the litigation and to the possibility of a compromise.

Multiplicity of defendants

It can be seen that frequently vexatious litigants will join numerous parties as defendants either from the start or by gathering them as time goes by. It is not unusual to see solicitors on the record or counsel from time to time joined as defendants, occasionally arising out of the conduct of the proceedings. Whilst these joinders are often, like the rest of the proceeding, ill-conceived and doomed to fail, they can cause considerable inconvenience and costs due to the fact that the solicitors and counsel acting for the parties or some of them, may have to withdraw, at least for a time. In that event new solicitors and counsel will have to be engaged. Again having regard to the likely extent and confusion of documents the costs of fresh legal representation can be considerable. I doubt that this is lost on the well informed vexatious litigant.

Another approach sometimes taken is for the vexatious litigant to frequently make application that particular judges of the Court or indeed on some occasions the entire bench of that Court be disqualified from hearing the matter because of bias. I might also say that it is normally actual bias which is relied upon as opposed to the somewhat softer option favoured by layers, of perceived bias. The vexatious litigant does not mind taking the attack head on.

Summary

Therefore, having regard to what I have said above, it is apparent that the role of legal advisers when acting for clients who are subject to actions commenced by vexatious litigants in person is very different to those which are involved in, what I can call, the normal course of litigation where all parties are represented. Where a plaintiff is represented by lawyers, even given the enthusiasm and passion of the plaintiff for the litigation, the lawyers are, as one would expect or at least hope, when acting properly within their ethical duties, an appropriate moderating influence. This applies particularly with respect to allegations of misconduct on the part of other parties such as fraud. Fraud is a particular favorite of a number of litigants in person, no doubt as it expresses clearly the heartfelt belief of the litigants in person as to the conduct of those who have caused them mischief.

Not all litigants in person conduct themselves in that way nor are all litigants in person by any means susceptible to orders under the various vexatious litigation enactments or rules of Court.

For the reasons I have already referred to, it is clearly essential that all persons have access to the Courts and that if they so choose, have access when they are acting on their own behalf. The inevitable tension which arises between the need to ensure that all persons have access to the Courts and to protect parties from frivolous, vexatious and oppressive proceedings is always going to lead to differences of opinion and problems associated with the application of the law and the development of appropriate principles.

Vexatious proceeding legislation and rule of court

I will now look at the various legislation and Court rules which govern the vexatious litigant in Queensland.

Queensland legislation

In Queensland insofar as the State Courts and Tribunals are concerned, the applicable legislation is the relatively recent Vexatious Proceedings Act 2005. I will deal with the respective Federal Legislation and Regulations later.

The substantive provisions of the Act are contained in s.6 which provides as follows:

“6 Making vexatious proceedings orders

(1) This section applies if the Court is satisfied that a person is—

(a) a person who has frequently instituted or conducted vexatious proceedings in Australia; or

(b) a person who, acting in concert with a person who is subject to a vexatious proceedings order or who is mentioned in paragraph (a), has instituted or conducted a vexatious proceeding in Australia.

(2) The Court may make any or all of the following orders—

(a) an order staying all or part of any proceeding in Queensland already instituted by the person;

(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in Queensland;

(c) any other order the Court considers appropriate in relation to the person.

Examples of another order for paragraph (c) —

• an order directing that the person may only file documents by mail

• an order to give security for costs

• an order for costs

(3) The Court may make a vexatious proceedings order on its own initiative or on the application of a person mentioned in section 5(1).

(4) The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(5) For subsection (1), the Court may have regard to—

(a) proceedings instituted or conducted in any Australian court or tribunal, including proceedings instituted or conducted before the commencement of this section; and

(b) orders made by any Australian court or tribunal, including orders made before the commencement of this section.”

The Court in the Act is defined in the dictionary as the Supreme Court.

“Court means the Supreme Court”

Section 6 shows that there is a two staged approach that the Court must take when considering an application for a vexatious proceedings order.

First, it must determine whether or not a person is a person who falls within the s.6 (1)(a) and/or (b). This is a threshold test. Thereafter, the Court has a discretion as to whether or not it will make any or all of the orders provided for in s.6(2).

Who May Apply

Section 5 provides that the persons who might apply are:

(a) The Attorney General.

(b) The Crown Solicitor.

(c) The Registrar of the Court.

(d) A person against whom another person has instituted or conducted a vexatious proceeding.

(e) A person who has sufficient interest in the matter.

Insofar as private persons are concerned (paragraph 5(1)(d) and (e)) applications may only be made by them with leave of the Court (s.5(2)).

Vexatious proceedings are defined in the dictionary as follow:

“vexatious proceeding includes—

(a) a proceeding that is an abuse of the process of a court or tribunal; and

(b) a proceeding instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c) a proceeding instituted or pursued without reasonable ground; and

(d) a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.”

It is to be noted that the definition of vexatious proceedings in the dictionary is not exclusive but is inclusive and no doubt there could be other proceedings which might be regarded by the Court as vexatious in certain circumstances.

Leave to commence the Application

The requirement for leave was considered by Fryberg J in Brisbane City Council v Matthews [2006] QSC 25 where he said as follows:

“The application being made by a person nominated in section 5(i)(d) of the Act has the result that leave of the Court is necessary for the institution of the proceedings. No doubt that provision is designed to prevent malicious applications or self-serving applications for relief under the Act. In the present case it seems to me that the leave should be granted.

There is no suggestion that the application is a device to avoid the merits of the proceeding against the applicant from being litigated and on the contrary I am satisfied that it is designed to provide a measure of protection which is appropriate in all the circumstances. I therefore propose to grant the leave sought.

The section provides power to make varying types of orders. I accept the submission made by Mr Peden that it is appropriate to limit the relief sought under section 6(2)(a) to the proceedings instituted against the Council and its named employees and also to limit the general relief sought under 9 ORDER paragraph (b) to proceedings against the Council and any of its employees.”

The word institute is defined in the dictionary to the Act as follows:

“institute , in relation to proceedings, includes—

(a) for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against a party; and

(b) for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal; and

(c) for criminal proceedings—the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender; and

(d) for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.”

There is no definition in the Act of the word “conduct” or “conducted” but one would assume that word would be construed consistently with the definition of ”institute”.

Further, there is no definition of “frequently” in the Act. However, as it is not defined the word “frequently” is to be given its normal English meaning. In National Australia Bank v Freeman [2006] QSC 086 at [30] Muir J said:

“Frequently” is defined in the Shorter Oxford English Dictionary as: ‘At frequent or short intervals, often repeatedly; numerously’. Whether proceedings have been instituted or conducted ‘frequently’ must be looked at in the context of litigation. In that sense ‘frequently’ is a relative term”.  

Muir J in that case also said:

“[26] A court has an inherent jurisdiction to ensure that its processes are not abused and, to that end, to restrain a party to proceedings from commencing other proceedings in any court in Queensland against another party to the first-mentioned aimed at re-litigating issues already finally determined against such other party. In Bhamjee v Forsdick Lord Phillips MR, in handing down the judgment of the Court, observed:

The court, therefore, has power to take appropriate action whenever it sees that its functions as a court of justice are being abused. The advent of the Civil Procedure Rules makes the nature of those functions more transparent. A court’s overriding objective is to deal with cases justly. This means, among other things, dealing with cases expeditiously and allotting to them an appropriate share of its resources (while taking into account the need to allot resources to other cases). This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications. They thereby divert the court’s resources from dealing with meritorious disputes, delay the handling of those disputes, and waste skilled and scarce resources on matters totally devoid of any merit.”

The word “Proceedings” is defined in the dictionary to the Act. The definition is of course very wide and includes interlocutory proceedings and appeals.

“proceeding includes—

(a) any cause, matter, action, suit, proceeding, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal; and

(b) any proceeding, including any interlocutory proceeding, taken in connection with or incidental to a proceeding pending before a court or tribunal; and

(c) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way”.

In considering whether or not the Court is satisfied of those matters set out in s.6(1) of the Act, the Court may have regard to:

(a) Proceedings instituted or conducted in any Australian Court or Tribunal, including proceedings instituted or conducted before the commencement of s.6; and

(b) Orders made by any Australian Court or Tribunal including orders made before the commencement of s.6.

One would assume that, for example, where an order declaring a person a vexatious litigant had been made in a Court or Tribunal in another state of Australia or in one of the Federal Courts, that such an order would have some weight insofar as the Court is required to determine the matters with respect to which it is to be satisfied in s.6(1).

Prior to the commencement of the Vexatious Proceedings Act 2005, the authorities in Queensland held that under the previous Act, the Vexatious Litigators Act 1981 the Court could only have regard to proceedings in Queensland Courts when considering whether or not the requirements of s.6(1) were met. See R.Cameron[1966] 2 QDR 218.

It has been held that:

Attempts to relegate matters previously dealt with by the Courts or litigation which involved allegations which are so obviously untenable as to be hopeless will constitute an abuse of the Court see National Australia Bank Limited v Freeman (supra)

The intention of the person who allegedly commences the vexatious proceeding is irrelevant. The Court is required to examine the proceedings objectively (Jones v Skyring 109 ALR 303 at 308-309). That case was considering the Federal provisions. However it can be assumed that a similar approach will be taken by the Supreme Court to the Vexatious Proceedings Act 2005.

In considering an application under the 1981 Queensland Act, Mullins J. held that the test was objective and that intention was irrelevant see Lohe v Sargent [2001] QSC 386 at (41).

(Continued)