News: Vexatious litigants and the High Court

It is sometimes difficult to judge when enough is enough with unrepresented litigants. Anecdotally, when I worked as a litigator and in the court system, I observed that a fair proportion of unrepresented litigants possessed one or more of the following characteristics:

  1. An obsessive fixation on their grievance;
  2. A tendency to produce giant wads of documents in support of their claims (some of which are irrelevant);
  3. A tendency to file documents which use quasi-legal jargon but from which it is very difficult to glean any real issues. Such documents also often have combinations of CAPITALS, underlining and bold text to highlight certain points;
  4. A refusal to listen to advice on their claims, and a corresponding tendency to get angry when someone suggests that the claim is not valid; and
  5. A tendency to generate conspiracy theories as to their lack of success.

However, there are occasional success stories, even before the High Court of Australia. For example, in the High Court case of Gambotto, the Gambottos represented themselves in a case involving oppression of minority shareholders, and were successful. Courts and lawyers can’t automatically write off litigants in person, because everybody deserves a chance to make their case. Consequently courts tend to be reluctant to declare someone a vexatious litigant (meaning that they are unable to file any further proceedings). In the High Court, this is achieved by a vexatious proceedings order made pursuant to s 77RN(2) of the Judiciary Act 1903 (Cth).

Pursuant to s 77RL of the Judiciary Act, ‘vexatious proceeding’ is said to include:

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

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

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

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

The High Court has recently ordered that a particular litigant in person be subject to a vexatious proceedings order in a recent case here: [2019] HCATrans 49. It is very rare for an individual to be declared a vexatious litigant by the High Court. Prior to this, only three people have been declared to be vexatious litigants by the High Court of Australia:

  • In Jones v Skyring [1992] HCA 39, and Jones v Cusack [1992] HCA 40, Messrs Skyring and Cusack were each barred from bringing further proceedings which sought to challenged the validity of paper money as legal tender. (They had sought to argue that gold was the only legal tender).
  • In Commonwealth Trading Bank of Australia v Inglis [1974] HCA 17, Mr Inglis bore the distinction of being declared the first vexatious litigant before the High Court of Australia, after repeatedly attempting to prevent a mortgagee’s sale.

In the present case, the litigant in question’s legal problems arose from his 2014 conviction for stalking and 2015 conviction for breach of a Violence Restraining Order (VRO) in relation to the same female complainant. His appeals against both those convictions in the Western Australian Supreme Court failed, as did his appeal to the Western Australian Court of Appeal.

His May 2015 application for leave to appeal to the High Court in relation to the VRO was deemed abandoned in June 2016, and he was twice refused leave to reinstate it. He then attempted to file a further 10 applications before the High Court. His application for leave to appeal to the High Court in relation to the stalking conviction was dismissed in October 2016. He then attempted to file a further 12 applications.

When he filed the final two applications in February 2019, the litigant was advised that the court was considering making an order pursuant to s 77RN(2) against him. At the hearing on 6 March 2019, however, the litigant sought an extension of time so that he could prepare submissions with regard to being declared a vexatious litigant. The Court was not minded to grant that extension.

Although the particular case before Keane and Edelman JJ only applied to the stalking conviction, in light of the litigant’s conduct in relation to the VRO proceeding, orders were  made in respect of that proceeding as well. It was held that the litigant’s refusal to take ‘no’ for an answer, and his refusal to recognise that the litigation in relation to his convictions was finished, rendered him vexatious. Keane and Edelman JJ noted:

Here the limit on [the litigant]’s recourse to the Court will be no more extensive than is necessary to preserve this Court from pointless demands on its time and resources and also to ensure that the other party to litigation concluded long ago is not subjected to the oppression of being confronted again by [the litigant]’s unreasonable and persistent sense of grievance.

The High Court ordered that the litigant was therefore prohibited from instituting any further proceedings in the High Court relating to the convictions the subject of two cases here: [2016] WASCA 30 and [2016] WASCA 31.

There is a part of me that finds it all rather tragic. The litigant clearly mistakenly believes that some injustice was done to him, but just as clearly, he has no basis for this belief.

Note: this post has been updated to remove the name of the person declared a vexatious litigant at his request.

This entry was posted in News, Opinions by Katy Barnett. Bookmark the permalink.

About Katy Barnett

Katy Barnett is a Professor at Melbourne Law School. She has published extensively in the areas of private law and remedies, and is a co-author of ‘Remedies in Australian Private Law’ with Dr Sirko Harder. In 2016 she received the Barbara Falk Award for excellence in teaching.

14 thoughts on “News: Vexatious litigants and the High Court

  1. Did he refer to Magna Carta? A mate of mine who occasionally helps people who have started off as self-represented says you can tell how much of a crank people are by how many pages it takes them to mention Magna Carta. I’m not sure whether those who mention it on p 1 or don’t get around to it till p 23 are the greatest cranks – though obviously the p 23 people are the more verbose. He even had someone who tried to base an argument on the “Molmutine Laws”.

    • The transcript I saw of the hearing on 6 March made no reference to Magna Carta, but I wouldn’t be surprised if it was in there. I agree with your mate – references to Magna Carta and the Bill Of Rights are hallmarks of crankishness. One time I got an affidavit from a LIP which appeared to have an exhibit a photocopy of a novelty teatowel of the Magna Carta…and yeah, he was a crank, through and through.

  2. And re Mr Gambotto – after his victory against the oppressive majority in WCP Ltd, he tried to argue that the section of the Corporations Law (as it then was) allowing a succesful bidder for a company to mop up the minority shares after a takeover was contrary to either s 92 of the Constitution or the “just terms” requirement in para 51(xxxi). Not so successful – see Any competent lawyer would have warned him against that one, but after his earlier success I guess he didn’t feel he needed to ask.

  3. Great article Katy – and very true. I remember as a young(er) graduate lawyer, on my first day in the disputes team of a top-tier firm being given a copy of “Vexatious Litigants and Unusually Persistent Complainants and Petitioners: From Querulous Paranoia to Querulous Behaviour” by Paul Mullen and and Grant Lester from the partner, and told to read it.

    When I queried why he simply said ‘you’ll see’. I finished it, and yup – the very first case I got to assist on (an RDA matter) all the hall-marks were there in the applicant’s documents. Made for a very hard case.

  4. Some years ago, Justice Dean MILDREN gave a comprehensive and interesting paper at the Criminal Law Association’s conference –
    “Don’t Give Me Any L.I.P. …”

  5. My personal favourite vexatious litigant would have to be Alfred Wintle — the first self-represented layman to win an appeal to the House of Lords: Wintle v Nye [1969] 1 All ER 552. The defendant was a solicitor who made a dubious will for a relative. Wintle was briefly imprisoned for “debagging” the defendant — pulling down his trousers by surprise in a public place. He was also briefly imprisoned in World War II for trying to commander an aircraft in which to fly to France in order to rally the air force there to fly to Britain and fight on. He threatened an air commodore with a revolver. He remarked after his win in the HL: “It was not until I got to the Lords was I dealing with my intellectual equals.”

  6. The people in charge like to look down on us mere plebs for daring to make any argument that relies on actual logic. I mean, the clearest example of this would be the first amendment right to free speech in the US constitution. Somehow, the judges have even managed to water that down to nothingness in favour of unlimited power for government officials to pick and choose which speech is allowed.

    You’d need an army of lawyers to decipher the various shifting meanings of elementary provisions, like the Australian s 80 trial to jury which has again been watered down to nothingness. Which means the constitution is written for the big end of town, and serves no function as an actual democratic document.

    All these vexatious litigants have in common that they weren’t smart enough to accept that they faced an impossible odds, since the whole system is designed to benefit those in charge, but good on them for trying.

    Anthony Gray, ‘Mockery and the right to trial by jury’ (2006) 6 QUTLJJ 66-88
    John Hasnas, ‘The myth of the rule of law’ (1995) Wisconsin Law Review 199

  7. There is a part of me that finds it all rather tragic.

    I very much agree, Katy.

    Back in IP Australia we naturally had many contested decisions. The ones that dragged out longest, with the most acrimony and the least amount of satisfaction bore all the hallmarks you mention above. Surely it owes more to how these litigants’ minds are wired, rather than any conscious decision on their part?

    It’s sad (and not a great outcome for the law itself) that the only way to bring some of these matters to a conclusion is to declare someone a vexatious litigant. After all, it simply reinforces their sense of having been persecuted. That said – I see no alternative.


    Matthew Ginn
    Principal Trade Mark Attorney
    Acorn Trade Mark Attorneys

  8. I was once tasked with assisting a client to withdraw a trespass suit he had filed in the Supreme Court as an L.I.P., seeking $1 million in damages.
    Naturally, the other party sought costs against my client. It was at that stage I had to withdraw, because the client instructed me to argue that costs could not be awarded because the Supreme Court had no lawful jurisdiction and the judge was committing treason against the Queen.
    Remember, he was the one that initially filed the claim!

    Turns out he had been doing some reading on “sovereign citizenship” and the theory that all actions of the Western Australian government became invalid from some time in the mid-1990s (unsurprisingly, the main proponent of this theory has been declared a vexatious litigant by the WA Supreme Court).

    The last thing the client said to me was he would re-file his trespass claim in the SA Supreme Court, because he had “read a favourable decision by a judge there”.

    • When I worked at the VSCA I saw a LIP argue the Court had no jurisdiction to evict him. Callaway JA said, “But doesn’t that mean we also have no juridiction to decide your case if you’re right?” “Er. Oh. Yes,” said LIP. He went off to file elsewhere – no idea where?! Probably HCA had to deal with him.

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