July 2014

The Nation Reviewed


By Sam Bungey
What makes a litigant turn vexatious?

New South Wales recently added a 29th name to its register of vexatious litigants: Mohammad Tabibar Rahman, a former school teacher. The law is supposed to curb the incorrigibly litigious, but it has barely caused Rahman, or many of the dedicated individuals on such lists, to break stride.

The short and well-groomed Rahman seems even smaller here in the gloom of spacious level 10 at the NSW Supreme Court in Sydney, as he looks for someone with whom to discuss documents he lodged the previous week.

After a 30-minute wait, a bristly barrister appears behind some plexiglass.

“You’re a waste of time, Mr Rahman,” he says.

“You don’t have the right,” counters Rahman, his voice breaking.

“Goodbye,” bellows the barrister with a dismissive wave, ordering his assistant to call security. Soon four sheriff’s officers arrive to escort us from the building. In the lift, hemmed in by the polite but insistent officers, Rahman turns to me.

“You see why?” he says.

I had asked what on earth drives him to keep doing this. In 2001, Rahman, originally from Bangladesh, failed an English-language test required for teaching in NSW. Chalking this up to racial bias, he decided to fight the decision, first with the Anti-Discrimination Board and then in court. One lost case led to another, and he came to believe that the justice system was riddled with racism and corruption. Further disputes involved a speeding fine, a failed job application, and his suspension from the University of Technology Sydney – where he was studying law – for fighting with the faculty. He tried to sue his own lawyers. In all, he initiated dozens of unsuccessful legal cases over the course of a decade.

Rahman, whose wife died a few years ago in a traffic accident, is now primarily devoted to litigating. In what little spare time he has, he reads the Koran, tends to his fruit trees and studies law, making do on a few hours’ sleep a night. As a vexatious litigant, he will now need special leave to begin legal proceedings in NSW, but there is, he claims, still the International Criminal Court to consider. Though he has been declared bankrupt and lost one of his houses, he carries on with tireless, doomed determination.

The British lord chief justice Thomas Bingham observed that the vexatious litigant keeps on when “on any rational and objective assessment, the time has come to stop”. Australian judge Nye Perram identified “the capacity to endure failure beyond the point at which a rational person would abandon the field”.

There are fewer than 100 vexatious litigants in Australia. According to Grant Lester, a forensic psychiatrist who has studied the field extensively, courts are loath to make the declaration in any but the most extreme cases.

“To manage to be made a vexatious litigant, you have to be the crème de la crème,” he says. “Your most sacrosanct right is to have your day in court.”

Lester and fellow Melbourne-based forensic psychiatrist Paul Mullen have led the recent revival of a 19th-century diagnosis of “querulous paranoia” for people for whom some minor wrong has become an all-consuming obsession. Lester says about half of those on vexatious litigants lists have the personality disorder.

According to Lester, the typical querulant is a man in middle age who often has a family and has held down a steady job, but who is entering a period of self-reflection when he receives “a blow to his senses”. Property disputes, divorce and claims of workplace racism are common themes.

“Something begins to click in this individual,” says Lester. “That particular dispute echoes their past experience, and begins to mean something about self-value.” They start to carry around bags of paperwork. They use exclamation marks in groups of three. They tend to “delight in the use of multiple colour highlighter pens”.

Taking a stand isn’t worth it, we tell ourselves, and anyway, it is bound to fail. The vexatious litigant rejects this premise.

Querulants are made, says Lester, not born. “The right series of events could trigger it in anyone. Some are more vulnerable than others, but there’s a bit of the querulous in each of us.”

Lester emphasises that the term does not apply to social reformers and campaigners with a public interest agenda. Its relative obscurity today is due in part to the misdiagnosis of such people in the past. In the Soviet Union, the KGB silenced political dissenters with punitive psychiatry: having them declared mentally unwell. Of course, many vexatious litigants, Rahman included, maintain that they are fighting not for themselves but for the common good.

The first example of vexatious litigant legislation, passed in Britain in 1896, had its detractors. One member of parliament worried at the time that the bill was “practically shutting the doors of all Courts of Justice to particular subjects of the Queen ... because one individual had made himself somewhat obnoxious in bringing proceedings”.

John Wilson, a former dentist, is someone Lester might call the crème de la crème. After serving in Vietnam, Wilson settled down with his wife and opened a practice in Sydney’s North Rocks. Then one day, in 1996, the repayments on his business loan went up.

Wilson had a seven-year loan with St George Bank, which began at a fixed rate. To Wilson’s surprise, the loan switched to a variable rate for the final two years. Wilson wasn’t in financial difficulty; in fact, he says his practice was thriving, and he could well afford the slight hike in his monthly repayments. But for Wilson it was the principle of it. He just didn’t believe in variable-rate loans.

The dentist brought a lawsuit against the bank, calling for the abolition of variable-rate loans. Unsurprisingly, he lost. Then he sued the sheriff’s office, several judges, the state, the board of dentists, and the then premier of NSW. In one case he sought $150 million in damages, and he took to petitioning the Queen. After he attacked a Supreme Court judge with bags of yellow paint, Wilson did a three-month stretch at Silverwater Correctional Complex.

“Better them than me be put in jail, but I’ll put up with anything,” Wilson says brightly, over a glass of lemon squash. Wilson was finally declared a vexatious litigant in 2010; he tried to appeal the decision, unsuccessfully. Now 71, he still regularly turns up at the Supreme Court to hand out flyers demanding a return to the principles of the Magna Carta and a trial by jury in every matter. “It’s exciting,” he says. “You’ve got to live every moment.”

There are periodic attempts to strengthen state laws relating to vexatious litigants, and to introduce a national register, to help stem the excessive use of time and resources. But Simon Smith, an adjunct senior research fellow at Monash University and the author of Maverick Litigants, is having none of it. He argues that behind such drives there is an aversion to dealing with citizens who represent themselves, “litigants in person”.

“The push [to strengthen the laws] is really from civil servants and some irascible judges who see litigants in person as interfering with the natural order of barristers in wigs,” says Smith. “If they were really serious about waste of courts’ resources, they would do something about the sometimes scandalous use of the courts by the corporate sector for their strategic games.”

The Canadian judge Yves-Marie Morissette says a vexatious litigant’s initial complaint is often “a ‘platonic injustice’ – a loss, an injury or an indignity which, in law, does not entitle the prejudiced party to reparation”. These are the grievances the rest of us simply accept as a cost of doing business in life. We might grumble about a suspiciously high water bill, say, but even a strongly worded letter to the water company is usually too much fuss. In the cost–benefit analysis, taking a stand isn’t worth it, we tell ourselves, and anyway, it is bound to fail. The vexatious litigant rejects this premise.

“Arguably, it is not that VLs cannot grasp reality, but that they refuse to accept reality’s presumptions,” writes the UK-based academic Didi Herman. “I prefer to see their continued failure to give up in a more positive light – as evidence of their commitment to the ideals of justice.”

Back out on the steps of the Supreme Court, Rahman is eagerly discussing his case with one of the men who just removed him, a sympathetic sheriff’s officer named Michael.

“I applaud you in your efforts, Mr Rahman. You’re obviously a learned man,” says Michael finally. Unaware that his guidance is coming too late, he adds: “One piece of advice I have for everybody, though, is to maintain respect and courtesy. Because the worst situation is, they can declare you a vexatious litigant. Then that’s it, game over.”

Sam Bungey

Sam Bungey is the editor of the Racket and a contributor to This American Life and the Saturday Paper.

July 2014

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