3. TERCER CAPÍTULO: SISTEMATIZACIÓN Y ANÁLISIS DE LA
3.2 ANÁLISIS Y SISTEMATIZACIÓN DE LA EXPERIENCIA PEDAGÓGICA
3.2.3 Érase una vez: El valor de las narrativas de vida para entender nuestro papel en la
Source of power: Vexatious Proceedings Restriction Act 2002 (WA).
No Date Name File No
1 26.5.1931 Ellen Cecilia BARLOW A21/1931
2 9.12.1980 Paul DESMOND 2397/80
3 19.4.2000 Oisin Geoffrey KEATING CIV2181/1999
4 2.8.2002 Lindsay HUNTER CIV1655/2002
5 23.12.2004 Brian William SHAW CIV2264/2004
6 16.9.2005 Shawky Shafeek MICHAEL CIV1374/2004
South Australia
The South Australian statutory sanction was introduced in 1935 as part of a consolidation of Supreme Court legislation in that State.73 The comprehensive
reform was led by Napier J of that court and seems to have adopted the vexatious litigant sanction simply as a matter of good housekeeping.74 There is
no evidence that the introduction of the sanction was a response to the litigation of a particular person.
As in other jurisdictions, a Parliamentarian resisted the introduction of the provision. In particular, the Leader of the Opposition, Mr Lacey, said:
[The provision] appears to give the Attorney-General for the time being too much power. Notwithstanding the fact that a person may be fanatical with regard to bringing actions, it does not gainsay the fact that he may have a reason for appealing to the Supreme Court at some time, and he should not be barred from doing so. Most of us recognise that the courts are good places to avoid but, notwithstanding that, every person should have the right of appeal.75
As Table 3 indicates, the sanction was not utilised until over 60 years later.
73 Supreme Court Act 1935 (SA), section 39.
74 South Australia, 1935 Parliamentary Debates, Legislative Assembly, 14 November 1935,
1517.
75 South Australia, 1935 Parliamentary Debates, Legislative Assembly, 21 November 1935,
Table 3: South Australian register of declared vexatious litigants (1935–2009)
Source of power: Supreme Court Act1935 (SA), section 39.
No Date Name File No
1 20.2.1997 Philip Damian BURKE SCGRG 95/1240
2 12.9.2003 Stephen Glenn HEINRICH SCCIV 02/822
3 11.11.2005 Henriette PIEPKORN SCCIV 05/459
4 30.1.2009 Andrew GARRETT SCCIV 96/2244
The High Court
The High Court adopted the sanction in 1943. In distinction to the States, the sanction was not inserted by statutory amendment but as new Order 44A in the High Court Rules.76 The insertion of the Rule was prompted by a series of writs
issued by a group of Tasmanians in 1942 against Latham CJ, McTiernan, and Starke JJ. The group believed, among other things, that there should be reform of the monetary system and that war loans were unnecessary. Their activities also led to a special wartime Board of Enquiry.77 Despite the introduction of
the provision, vexatious litigant proceedings were not actually brought against any members of the group.78 However, the rule change was signifi cant as it
widened the standing provisions to initiate an application from beyond the Attorney-General to include the Commonwealth Crown Solicitor and also the Principal Registrar of the High Court. It also introduced the concept of a vexatious litigant acting in concert with other parties. A further rule change at the same time introduced, for the fi rst time, a pre-emptive power for the
76 Order 44A, inserted 9 March 1943, read:
1. Upon the application of a Law Offi cer of the Commonwealth or the Crown Solicitor of the Commonwealth or of the Principal Registrar of the High Court if any Justice thereof is satisfi ed that any person frequently and without reasonable ground or that any other person in concert with the person hereinbefore mentioned has instituted vexatious legal proceedings may after hearing such person or any other person or giving him an opportunity of being heard order that no legal proceedings shall without leave of the Court or a Justice thereof be instituted by such person or other person in the High Court.
Such leave shall not be given unless the Court or a Justice therof is satisfi ed that the proceedings are not an abuse of the process of this court and that there is a prima facie ground for the proceedings.
2. A copy of any Order made hereunder shall be published in the Commonwealth Gazette.
77 NAA: A432, 1943/220.
78 See further, Frank Jones and James Popple, “Vexatious Litigants” in Tony Blackshield et al, The Oxford Companion to the High Court, 698-699. See also Anon, “Vexatious Litigation”, (1943) 17ALJ 9. Interestingly, two litigants actually declared vexatious by the High Court also based their litigation around the constitutionality of Commonwealth statutes relating to banking and fi nance, having regard to the scope of “legal tender” in section 115 of the Constitution. See further JonesvSkyring [1992] 66 ALJR 810 and JonesvCusack [1992] 66 ALJR 815.
Registrar to seek judicial direction not to issue a writ or process that appeared to be an abuse of the process or a frivolous or vexatious proceeding.79
The sanction was fi rst used in 1952 against Goldsmith Collins (Chapter Seven). But it was not until 1992 in Jones v Skyring,80 a case involving the
only Australian to have been declared vexatious in three jurisdictions,81 that the
court clarifi ed the legal basis of the vexatious litigant power. Justice Toohey held that the power derived from the rule-making power contained in section 86 of the Judiciary Act 1903 (Cth). In essence, the Rule was concerned with practice and procedure. Justice Toohey said it was simply “reinforcing the power of the court to protect its own process against usurpation of its time and resources and to avoid loss to those who have to face actions which lack substance”.82 In His Honour’s view that was ample to sustain it against being
in confl ict with any constitutional or statutory provision.83
As Table 4 indicates, the High Court has used the sanction sparingly. Three of the four people declared have also been declared in other jurisdictions — which refl ects the appellate nature of the High Court’s jurisdiction.84
Table 4: High Court register of declared vexatious litigants (1943–2007)
Source of power: High Court Rules, Order 63, Rule 6.
No Date Name File No
1 13.6.1952 Goldsmith COLLINS (1902–1982) 1952/25
2 19.8.1971 Constance May BIENVENU (1912–1995) 1970/8
3 27.8.1992 Alan George SKYRING S92/005
4 27.8.1992 Patrick Leo CUSACK S92/006
Queensland
In October 1943 Queensland, presumably following the lead of the High Court, also amended its Supreme Court Rules to introduce the vexatious litigant sanction.85 As in South Australia, there was no particular litigant prompting
the change. Again, it appears simply as good housekeeping. It was not until 1966 that the fi rst declaration was made. The second under the Rules was that of Dieter Soegemeier in 1980 (Chapter Nine). His persistent litigation showed
79 Order 58 Rule 3. It is now Regulation 6.07. 80 Jones v Skyring [1992] 66 ALJR 810.
81 The others are the Queensland Supreme Court (1995) and the Federal Court (1999). 82 [1992] 66 ALJR 810, 814.
83 Ibid.
84 Collins: Victoria (1953); Bienvenu: Victoria (1969) and Skyring: Queensland (1995) and
Federal Court (1999).
85 Order 60A was published in the Queensland Government Gazette on 9 October 1943,
defi ciencies in the Rules and led to the enactment of the Vexatious Litigants Act 1981 (Qld).
As Table 5 indicates there has been a surge of orders made in Queensland since 1981, with a further 12 declarations, including the fi rst order in Australia involving a prisoner, Dennis Melvin Fritz (1987).86 It is not clear why there
have been so many orders when contrasted, say, with New South Wales, a more populous State. Eleven of the orders pre-date the 2005 modernisation of the provision, so that is not an explanation. It may just be one of the accidents of history. In any event, it has seen Queensland take a leadership position over the other States and the Commonwealth through the SCAG in the development of model vexatious litigant proceedings legislation. This is intended to encourage a uniform approach throughout Australia.87 As a result, in 2005 Queensland
passed the Vexatious Proceedings Act.
Table 5: Queensland register of declared litigants (1943–2007)
Source of power: Vexatious Proceedings Act 2005 (Qld).
No Date Name File No
1 19.1.1966 Margeret Lillian ROCKWELL (?–2001) OS 8/66 2 19.2.1980 Dieter SOEGEMEIER (1933–2005) OS 65/80 3 12.10.1983 Robert William Franklin VAN HAEFF OS 705/83
4 21.7.1987 Leslie Harold FRITZ OS 418/97
5 21.7.1987 Dennis Melvin FRITZ OS 418/97
6 5.5.1995 Alan George SKYRING OS 178/95
7 5.3.1996 Donald James CAMERON APL 112/95
8 16.12.1999 John Murray ABBOTT S 10813/99
9 22.5.2000 Peter Alexander GARGAN S 1888/00
10 16.10.2001 John Gary SARGENT S 6670/01
11 4.12.2002 William Peter TAIT S 5757/02
12 16.4.2003 Richard Stephen GUNTER S 11734/02
13 27.2.2004 Geoffrey James BIRD S 7790/03
14 13.4.2007 Dayal Hassaram MANSUKHANI BS4770/06
86 Also declared at the same time was his father Leslie Harold Fritz, who supported his
son’s litigation. The second prisoner declared was (Victorian) Julian Knight (2004).
New South Wales
Although the oldest Australian superior court jurisdiction, with a rich tradition of persistent litigants,88 New South Wales only considered introducing the
vexatious litigant sanction in 1935 when other States were doing the same. The sanction was included in a draft Supreme Court Bill of that year. That Bill was part of a wider reform effort seeking to fuse the equity and law divisions of the court and otherwise modernise procedures. This had been unsuccessfully attempted on a number of occasions since 1880. The 1935 effort also foundered89 and it was not until 1969, when the recommendations of the New
South Wales Law Reform Commission (NSWLRC) were adopted, that the sanction was introduced as section 84 of the Supreme Court Act 1970 (NSW). In 2006 the court introduced a public register of people declared vexatious under section 84.
As Table 6 indicates, the fi rst full vexatious order made by the Supreme Court was in 1986.90 The New South Wales court has also shown a preparedness
to refuse to make a declaration when it is not satisfi ed the grounds are made out.91
Table 6: New South Wales register of declared litigants (1970–2007)
Source of power: Supreme Court Act 1970 (NSW), section 84.
No Date Name File No
1 8.5.1986 Eddie SOLOMON 4954/86
2 13.6.1990 Michael SPAUTZ 14464/89
3 19.11.1992 Raymond Stanley WEST 16208/90
4 15.11.2002 Drago JAMBRECINA 10820 and
20019/2002
5 5.3.2003 Con TSEKOURAS S5757/02
6 10.12.2003 Pranay Kumar BHATTACHARYA 10904/03
7 5.2.2004 Dominic Wy KANAK 013056/03
8 30.9.2004 Craig Andrew BETTS 13264/03
9 25.5.2005 Michael Jacob BAR-MORDECAI 10622/04
88 For the example of the determined litigation of Edward Eagar, see Kevin Smith, Colonial Litigant Extraordinaire: the Edward Eagar story 1787-1866; layman, attorney, merchant, lobbyist, 1996.
89 New South Wales, Law Reform Commission, Supreme Court Procedure, Report 7, 1969,
7–8 and 14.
90 In 1976 “partial” vexatious orders under section 84 were made against Roger Pedler
(1934–1994) and his mother Stella Pedler (1900–1989) in Hunters Hill Municipal Councilv Pedler and Anor [1976] 1 NSWLR 478. The orders only restricted proceedings launched against the local council.
91 See Attorney-GeneralvWentworth (1988) 14 NSWLR 481. In 2003 in Wentworth v Graham & Anor [2003] NSWCA 307,paragraph 43,Ipp and Brownie JJ “partially
Family Court
When the Family Court of Australia was established in 1976 its enabling legislation included the vexatious litigant sanction (section 118 of the Family Law Act 1975 (Cth)). Interestingly, the provision widened the standing to initiate an application to any “party to the proceedings”.92 However, section 121 of the
Act also placed restrictions on the publication of proceedings of the court that make it diffi cult to access the numbers of vexatious litigant orders the court has made. But Her Honour Bryant CJ has publicly reported that in the 30-year period 1976–2006 the court has made 195 orders.93
Federal Court
The Federal Court of Australia was established in 1977.94 It obtained the
vexatious litigant sanction in 1979 when Order 21 of the Federal Court Rules was fi rst promulgated. As Table 7 indicates, there have been only two full orders made since that time.95 A factor here may be that the establishment
of the Federal Magistrates’ Court in 2001 has seen an effective transfer to that jurisdiction of the high volume litigant-in-person subject matter, namely, immigration and bankruptcy cases. As a result, that lower court has become the focus of most of the litigants-in-person.96
The fi rst person declared in the Federal Court was Alan Skyring, the only person to have been declared in three superior courts.97
vexated” Katherine Wentworth. Rather than being a blanket ban prohibiting the issue of any future proceedings without leave, the ban was limited to nominated parties. This followed repeated and unsuccessful applications for judges to disqualify themselves from hearing Wentworth’s cases on the basis of bias. She was precluded from making further applications without fi rst applying in writing to the court. See also, “Nuisances in court: judges get tough on serial pests”, Sydney Morning Herald, 27May 2004, 18.
92 Section 118(1) reads:
The Court may, at any time of proceedings under this Act, if it is satisfi ed that the proceedings are frivolous or vexatious-
(a) dismiss the proceedings;
(b) make such orders as to costs as the court considers just; and
(c) if the court considers appropriate, on the application of a party to the proceedings – order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kinds specifi ed in the order.
93 Diana Bryant, Self Represented and Vexatious Litigants in the Family Court of Australia,
Access to Justice Conference, Monash University, Prato, Italy 2006.
94 Federal Court Act 1976 (Cth).
95 See Horvath v Commonwealth Bank of Australia [1999] FCA 504 for an example of a
“partial” vexatious order made by the court.
96 Phiilip Kellow (Deputy Registrar), email to author, 3 April 2008.
Table 7: Federal Court register of declared vexatious litigants (1979–2007)
Source of power: Federal Court Rules, Order 2,1 Rule 1.
No Date Name File No
1 6.7.1999 Alan George SKYRING Q93/1999
2 10.5.2001 Merrilee Margaret SLATER A81/2000
Tasmania
Notwithstanding the fact that it was a group of Tasmanians that prompted the High Court to introduce the vexatious sanction into its rules in 1943,98 Tasmania
itself did not adopt the sanction until 1994. That year the Supreme Court Civil Procedure Act 1932 (Tas) was amended by the introduction of section 194G. As in certain other States, this was not a response to a particular litigant; again being a housekeeping measure. The Tasmanian Government readily conceded that it would be needed “rarely”.99
Once more, the Opposition unsuccessfully opposed the introduction of the sanction. In their view it indicated:
…an attitude of mind of the Government; it also indicates an attitude of mind of the community at large, where we say, “If you’re out of step, if you are a nuisance, we’re going to make it even harder for you anyway”. One of the problems with this type of legislation is that we frustrate people who are whistleblowers, or who have problems and who become fi xated on their problems, and cut off one access, it is like putting the lid on a pressure cooker — it breaks out somewhere else. The courts are the best place to deal with this type of problem.100
No orders have been made under the provision in the period 1994–2007.101
Australian Capital Territory
In 1998 the Australian Capital Territory (ACT) introduced the sanction as section 67A of the Supreme Court Act 1933. In speaking to the amendment, Attorney-General Humphries was conscious that, at that time, the ACT and the Northern Territory were the only two superior court jurisdictions in Australia not to have the sanction.102
98 See further, Frank Jones and James Popple, “Vexatious Litigants” in Tony Blackshield et al, The Oxford Companion to the High Court, 2002, 698–699. See also, Anon, “Vexatious Litigation”, (1943) 17ALJ 9.
99 Tasmania, Parliamentary Debates, House of Assembly, 4 August 1994, 1391 (Mr White
MLA).
100 Tasmania, Parliamentary Debates, House of Assembly, 4 August 1994, 1391-2 (Mr White
MLA).
101 Registrar Elizabeth Knight to author, 30 January 2008.
102 Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 19 November
In unsuccessfully opposing the amendment, the Opposition suggested that the case for sanction had not been made out, although they mused upon whether the introduction of the sanction was a response to a persistent ACT litigant, Leonard Munday.103 That he was not a catalyst is supported by the fact that no
orders have been made under the provision in the period 1998–2007.104
Northern Territory
In 2006 the Northern Territory became the last superior court jurisdiction in Australia to adopt the sanction when it enacted the Vexatious Proceedings Act 2006. It was not a response to problems of a local litigant. Rather, it followed participation in the SCAG development of a model Bill designed to encourage a uniform approach to vexatious litigants.105 .
The Act came into force on 24 April 2007. As at 31 December 2008 there have been no orders made.