3. TERCER CAPÍTULO: SISTEMATIZACIÓN Y ANÁLISIS DE LA
3.1 DESCRIPCIÓN DE METODOLOGÍA
3.1.2 Ejercicios de apoyo en clase
Introduction
Whether or not courts or governments have correctly identifi ed the distinction between litigants-in-person and vexatious litigants, both bodies have developed sanctions seeking to control persistent litigants. This has been an evolutionary process over the last 130 years. The early efforts of the courts focused on their inherent power to protect court processes from abuse. This was on a case-by- case basis and concentrated on the merits of the presenting litigation rather than on controlling the individual litigant. In time this power was formalised in every superior court jurisdiction into rules of court. The major contribution of government has been to develop a specifi c statutory sanction that allows a superior court to ban an individual litigant from initiating new legal proceedings. The impact of such an order is to transfer the focus of the litigant from third party defendants to the court, as they must apply to the court for permission to issue new legal proceedings.
In this chapter I will set out the framework of the judicial and statutory control of vexatious litigants in Australia. I will discuss the early use of the inherent power and the emergence of the specifi c statutory sanction. I will canvass, as a threshold issue, whether there is a right of access to the court to have a dispute resolved; and draw a distinction between the controls and sanctions available in cases where there is representation and where the litigant self-represents.
I will also trace in this chapter, in chronological sequence, the emergence of the statutory sanction in each of the 11 superior Australian jurisdictions1 and
identify whether that emergence was the response to a particular litigant or more in the nature of “good housekeeping”. This discussion will include details of people declared vexatious in each jurisdiction from the date of inception
1 There are six State Supreme Courts: New South Wales, Queensland, South Australia,
Tasmania, Victoria and Western Australia. There are fi ve Federal Courts: the High Court, the Family Court, the Federal Court, and the Supreme Courts of the Northern Territory and the Australian Capital Territory.
of the sanction until 31 December 2008. I will also refer to the 2008 reform proposals of the Law Reform Committee of the Victorian Parliament and the Victorian Law Reform Commission. Both bodies have examined the vexatious litigant sanction.2 And I will provide a critical review of a new model statutory
sanction developed through the Standing Committee of Attorneys-General (SCAG). My concluding theme will be that the sanction, even as modernised, is an incomplete answer to the challenge of persistent and vexatious litigants.
Legal sources of the right to access the courts
In considering how and when a court may deny a litigant access to the court there is a preliminary question. Is there a fundamental right to access the court in the fi rst place? Expressed another way, is there a right to invoke the state’s power to resolve disputes between citizens? Litigants, especially vexatious ones, regularly assert that such a right exists. The judiciary also endorses that view. Ironically, in recent times, such judicial expressions have usually been made just before denying an application of a declared vexatious litigant. For example, in 1996 in Attorney-General (Cth) Ex parte Skyring Kirby J said, “[t]he rule of law requires that, ordinarily, a person should have access to the Courts in order to invoke their jurisdiction”.3 A few years later in Attorney-
General (NSW) v Spautz Brownie AJ said, “[t]he right of the ordinary citizen to commence and continue legal proceedings without requiring the consent or leave of any other person is one of the foundations of a free society, as we know it in Australia”.4 However, such expressions are not based on any
local Bill of Rights or constitutional guarantees. There are none. Historically, they draw on common law principles evolved from the Magna Carta when, in 1215, the English Barons secured the right to petition the Crown about their grievances.5 In particular, the following two clauses outlined the rights of the
Barons and their entitlement to access the courts:
2 See Parliament of Victoria, Inquiry into Vexatious Litigants: Final Report, Law
Reform Committee, 2008 at: http://www.parliament.vic.gov.au/lawreform/inquiries/ Vexatious%20Litigants/fi nal%20report.pdf (5 February 2009) and Victorian Law Reform Commission, Civil Justice Review: Report 14, at: http://www.lawreform.vic.gov.au/wps/ wcm/connect/Law+Reform/resources/fi le/ebe72602960b930/VLRC%20Civil%20Justic e%20Review%20-%20Report.pdf (29 May 2008).
3 (1996) 135 ALR 29, 32. Alan George Skyring has the unique record of having been
declared a vexatious litigant in three jurisdictions: the High Court (1992);the Queensland Supreme Court (1995) and the Federal Court (1999). The general theme of his litigation has been that it is beyond the constitutional power of the federal Parliament to make paper money (as distinct from gold) legal tender of Australia.
4 [2000] NSWSC 45. The NSW Supreme Court declared Michael Edward Spautz a
vexatious litigant in 1990. His declaration grew out of persistent litigation challenging the academic record of an academic at the University of Newcastle. See further, John Biggs, “The University of Newcastle: prelude to Dawkins”, in John Biggs and Richard Davis, The Subversion of Australian Universities, 2002, 127–148.
(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
(40) To no one will we sell, to no one deny or delay right or justice.6
This right to redress was further developed in favour of the ordinary citizen over the subsequent centuries with the emergence of a judiciary independent from the Crown. By 1765 Blackstone was able to write in his Commentaries of “the right of every Englishman” to apply “to the courts of justice for redress of injuries”.7 The symbolism of this heritage is widely recognised, in particular,
by vexatious litigants as demonstrated below in the case studies of Millane (Chapter Four), Collins (Chapter Seven) and Soegemeier (Chapter Nine). All these vexatious litigants referred to the Magna Carta as a principal source of authority underpinning their litigation.
By contrast, in the United States, litigants and pro se prisoner litigants in particular can point to a right of access having been formalised through constitutional amendments. For example, the First Amendment to the United States Constitution guarantees, among other things, that citizens can “petition for redress of grievances”.8 However, this right is far from absolute and the
United States Supreme Court has concluded that the petition clause does not provide a substantive right of access to the courts unless the free speech rights are also implicated, thus narrowing its scope. Similarly, in Europe, although the right to fair (criminal) trial contained in Article 6 of the European Convention on Human Rights has been held to contain an inherent right to access the civil court,9 it too is limited. In this respect, the European Court of Human Rights
has determined that signatory states can impose limitations on the right of access if they have a legitimate purpose and are proportionate to the goal they seek to achieve. Limits on access for vexatious litigants have been held to be within that scope.10 This, of course, is apart from the practical problems of
exercising rights under the Convention and then, if successful, of effective local enforcement.11
6 See at: http://www.bl.uk/treasures/magnacarta/translation.html (29 November 2007). 7 William Blackstone, Commentaries, Book 1, Chapter 1, 137. See at: http://www.yale.
edu/lawweb/avalon/blackstone/bk1ch1.htm (13 December 2007).
8 The First Amendment provides, “Congress shall make no law…abridging the freedom of
speech, or of the press: or of the right of the people to peaceably assemble, and to petition the Government for a redress of grievances”.
9 In Golder v United Kingdom (1975) 1 EHRR524, E Ct HR a convicted prisoner had been
refused permission to write to his solicitor with a view to instituting libel proceedings against a prison offi cer. The court held that a right of access to the court was inherent in Article 6(1). See further Lord Lester and David Pannick, Human Rights Law and Practice, 1999, 139-141.
10 Lord Lester and David Pannick, Human Rights Law and Practice, 1999, 139-141. 11 The process requires that before application all domestic remedies must have been
In Australia recent attempts to formalise rights of access to justice have drawn on two sources. One is the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory. In particular, Article 14 of this treaty provides in part that:
All persons shall be equal before the courts or tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.12
The other approach seeks to imply such rights by emphasising the separation of judicial power from other governmental powers under Chapter III of the Australian Constitution. Although not mutually exclusive, reliance on either source has had only limited success. The High Court has been prepared to hold that the Constitution, particularly the external affairs power (section 51(xxix)), supports legislation enacted to implement international treaty obligations13 but
has been reluctant to adopt international conventions into Australia when they have not been enacted into Australian law, as is the case with the ICCPR. The High Court decision in Dietrich v The Queen14 brought both threads together.
It concerned the nature of the right to a fair trial where the defendant in a serious criminal case was unrepresented, legal aid having been refused. The case raised directly the applicability of Article 14. Although some members of the court were prepared to fi nd human rights based on overseas treaties implied into the Australian Constitution,15 the majority held that there was no
absolute right to have publicly funded counsel in a criminal matter.16 In 2005
in APLA Ltd v Legal Services Commissioner (NSW)17 the High Court had the
opportunity to consider again whether Chapter III supported an implied right to access legal advice as an important aspect of access to justice. This time the case concerned a challenge to State regulations prohibiting advertising for civil personal injury claims. Again the court declined, upholding the validity of the State legislation.18
Finally, a further factor inhibiting claims of a right of access is the preliminary power granted to court registrars to refuse to seal or accept documents (including initiating documents) that seem to be irregular or an
becomes a matter of political goodwill. For a discussion see James Spigelman, “Access to Justice and Human Rights Treaties”, Supreme Court of New South Wales, 1999, at: http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_ spigelman_221099 (20 November 2007).
12 See http://www.ohchr.org/english/law/ccpr.htm (29 November 2007).
13 See, for example, Koowarta v Bjelke-Petersen (1982) 153 CLR 168 and Commonwealth
v Tasmania 158 CLR 1 (The Tasmanian Dams Case).
14 (1992) 177 CLR 292.
15 (1992) 177 CLR 292, (Dean and Gaudron JJ).
16 (1992) 177 CLR 292, (Mason CJ, McHugh, Dean, Gaudron and Toohey JJ). 17 (2005) 224 CLR 322.
abuse of the process of the court.19 The origin and impact of this pre-emptive
power will be discussed further below.
Control through representation
Despite the absence in Australia of a formal right of access to the courts it is clear that, historically, the “fathers of federation” anticipated litigants-in-person. They provided in section 78 of the Judiciary Act 1903 (Cth) that “the parties may appear personally or by such Barristers or Solicitors”. This provision has been adopted in varying forms by the rules of modern day courts.
The distinction between appearance in person and through legal representation is an important one. The latter brings with it the ethical duties of the legal practitioner to the client, to the law and to the court that have evolved over the previous century. In the period covered by the case studies it is clear that an advocate was (and is still) expected to maintain the dignity of the profession, to be courteous to the presiding judge and to guard against being a channel for questions intended only to insult or annoy. Above all, an advocate must avoid misleading the court in relation to both fact and law. Breaches of these duties can bring sanction by the court, under its inherent jurisdiction to protect the procedures of the court, and disciplinary action by the professional regulating body.
No such professional obligations restrain the litigant-in-person. Yet it would be diffi cult for a judiciary drawn almost exclusively from professional advocates to suppress an expectation that litigants in person would also “play by the rules”. The six case studies will demonstrate how a judicial frustration created by the denial of this expectation can come to the surface.
As Professor Dal Pont makes clear, the advocate’s paramount duty to the court traditionally carries with it a level of independence. An advocate is not solely a hired gun for the client. They are expected to exercise an independent judgment that will assist the court in performing its role of administering justice.20 This is particularly so in relation to advocating what are described
as “hopeless cases”.21 Simply advocating a case as instructed by a client is
not enough to discharge the duty to the court. A lawyer is obliged to have investigated the claim to form an opinion as to whether a cause of action exists or is likely to succeed. If the claim is weak, then the advocate can proceed in good faith provided the case is at least arguable and the client has been informed of the fact. If the claim is not arguable then, even if the client agrees to go forward, it is regarded as a breach of duty for the lawyer to proceed. The case would be struck out with costs awarded against the losing party. In addition, there has recently been a shift to awarding costs against lawyers
19 For example, see Order 27.06 of the Victorian Supreme Court (General Procedure) Rules 2005.
20 Gino Dal Pont, Lawyers’ Professional Responsibility, 2006, 385. 21 Ibid, 401.
personally.22 At the same time the development in Australia, since 1997, of
model ethical rules and legislative sanctions has formalised the obligation of lawyers to screen weak or hopeless cases to ensure cases are conducted effi ciently and expeditiously.23 In part, this follows the American path shaped
by Rule 11 of the Federal Rules of Civil Procedure. Consistent with this trend, recent recommendations of the Victorian Law Reform Commission’s (VLRC’s) Civil Justice Review suggest a move towards the development of ethical guidelines for Victorian lawyers dealing with self-represented litigants. The VLRC recommends that the guidelines canvass matters such as protocols for communication, record-keeping, conduct during negotiations and personal security.24 This is an interesting development because, if accepted, it would
represent an attempt to infl uence the conduct of litigants-in-person by placing obligations on opposing counsel.
Even though these duties have been formalised only in recent times, the impact of the difference in cases where the litigant is not represented, and is therefore less restrained or inhibited by professional rules and obligations, will be demonstrated in the six case studies below.