Responding to unreasonably persistent litigators · People who make a complaint have a problem. As a general proposition you could say that people are unlikely to complain if they

Responding to unreasonably persistent litigators

Land & Environment Court Annual Conference

Friday 30 May 2014

Chris Wheeler

Deputy NSW Ombudsman

NSW Government Publication © NSW Ombudsman, June 2014 This work is copyright, however material from this publication may be copied and published by State or Federal Government Agencies without permission of the Ombudsman on the condition that the meaning of the material is not altered and the NSW Ombudsman is acknowledged as the source of the material. Any other persons or bodies wishing to use material must seek permission.

Deputy NSW Ombudsman: Speech - Responding to unreasonably persistent litigators Land & Environment Court Annual Conference - 30 May 2014

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Responding to unreasonably persistent litigators Land & Environment Court Annual Conference1 30 May 2014

1. Introduction In 2006 the nine Australasian Parliamentary ombudsman began a joint project to identify strategies and techniques to better manage what we refer to as ‘unreasonable complainant conduct’. This joint projecti was triggered by the noticeable growth being experiencing in the number of complainants who present with behaviours that are increasingly challenging and seriousii.

At the outset I want to try to clarify what I am referring to as unreasonable conduct. People who make a complaint have a problem. As a general proposition you could say that people are unlikely to complain if they are happy. When people come to us it is certainly not uncommon that they are upset, often very upset if they believe they have been treated badly by the agency when they first raised their concerns. Dealing with people who we perceive as being somewhat ‘difficult’ is therefore an integral part of our role. We recognise and accept that this is part and parcel of our work as complaint handlers.

However, a problem occurs when difficult or challenging becomes unacceptable. What I am talking about when I refer to conduct being ‘unreasonable’ is something out of the ordinary compared to the conduct of complainants generally. I am not talking about people who behave a bit strangely, are difficult to understand because they cannot put their thoughts together in ways that are easily comprehensible, or even those whose anger leads them to pepper their language with expletives. I am talking about conduct by a small percentage of complainants that unacceptably impacts on the:

• health and safety of the staff of an organisation, or visitors to its premises,

• limited resources of an organisation that are available to deal with complaints, and/or

• equitable distribution of the resources of the organisation between all users, of a service, both current and potential.

What complicates the situation no end is that most people whose conduct is perceived by courts and complaint handlers to be unreasonable (as in unacceptable) are likely to view their own conduct as being reasonable in the circumstances. How reasonableness (and fairness) is assessed can vary considerably depending on the perspective of the person or body making the assessment.

2. What is the experience of courts and complaint handlers? In the complaint handling context, the experience of complaint handlers from across at least Australia (with indications it is a world-wide phenomenon) is that unreasonable conduct by complainants appears to be a growing phenomenon. Consistent feedback from experienced

1 An edited version of this paper will be published in Volume 12, Issue 1 of The Judicial Review.


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complaint handlers who participate in training provided by NSW Ombudsman staff to public and private sector organisations across Australia is that the problem is growing, both in terms of the numbers of people engaging in such conduct and the seriousness of the conduct.

When staff of the NSW Ombudsman have presented training to the registry staff of various courts in the better management of unreasonable conduct, court staff have reported some common scenarios, including:

• The litigant who deflects responsibility onto the presiding officer or registrar – As courts/tribunals are process and procedurally driven, I am told it is often very difficult to get litigants to understand that these processes and procedures must be followed.

• The demanding litigant who is never satisfied – There is an increasing number of self- represented litigants who I am told at times can be very demanding.

• The intelligent litigant who might have a mental health issue – I am told that court staff find such litigants by far the most difficult to deal with. An early 19th century French physician referred to one manifestation of this phenomenon in terms of the surprise experienced by people when they observe that somebody who appears to be normal in nearly every respect, isn’t in relation to one aspect of their livesiii. While such litigants come across as logical and having an understanding of the process, they seek to manipulate the process to their advantage. They will launch into attacks on court officers and/or the justice system, apparently often quoting historical remedies to support their position (for example the Magna Carta or the International Covenant on Civil and Political Rights). No amount of reasoning will move such litigants along, and this often results in their constant refusal to follow directions, to appear at court proceedings and to adhere to orders.

• The litigant with a hidden agenda – Some people appear to litigate for the sake of litigation, not wanting the matter to end. Commonly such litigants will avoid the resolution of the substantive issues by making numerous objections and interlocutory applications, and by lodging appeals and making complaints

• The litigant who will not listen – Some litigants, no matter how many ways or times something is explained to them, do not listen. This can add to their frustration and anger, and often results in abusive and defensive behaviour by the litigant and frustration by the court staff who deal with them.

3. What are the common circumstances that can lead to unreasonable conduct by complainants?

Long experience has shown that there are a wide range of circumstances that can lead to unreasonable conduct by complainants including:

Attitudinal

• Dissatisfaction: Dissatisfaction with a person, agency, organisation, government body, or general discontent.

• Venting: A desire to express his or her feelings and have views heard – to ‘let off steam’ or ‘have their day in court’.


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Aspirational • Principle: A rigid focus or fixation on what is seen as a matter of ‘principle’ or a ‘crusade’

seeking ‘justice’, coupled with an inability to ‘let go’ and move on – to normalise. Many people find it particularly difficult to compromise on issues they see as being about justice or principleiv. Once an issue is framed in terms of ‘justice’ or ‘principle’, and the complainant has effectively claimed what they see as the moral high ground, it will be much more difficult to resolve the issue to the satisfaction of the complainant because compromise, or even moderation, is unlikely in those circumstances.

• Vindication: Including the need for public recognition of the injustice suffered, and acknowledgement of the seriousness of the issue(s) to be addressed and/or the extent of the battle waged in the ‘public interest’ or as a ‘matter of principle’.

• Retribution: For example a desire to have the people deemed to be responsible for the wrong suffered dismissed from their employment, criminally charged or that ‘punitive damages’ paid.

• Revenge: It is not uncommon that a complaint appears to have been made as a means to exact revenge.

• Unmet expectations: This would include anger or frustration due to unmet expectations.

• ‘It’s all about me’: Some complainants have an unreasonable sense of entitlement.

Emotional or behavioural

• Identity: Some people become ‘fused’ with their ‘campaign’, which effectively becomes the main purpose of their life and part of their identity. Where resolution of the issues in dispute would mean a significant loss of such purpose and meaning, the person concerned may see the perpetuation of their campaign as virtuous or necessary in the public interest.

• Infallibility: Some complainants have a firm conviction that they are right and that any complaint handler reaching a different conclusion is either incompetent or corrupt.

• Control: Some complainants feel the need to overcome feelings of powerlessness and take control of the process and its outcome. In the complaint handling context, the desire for control is one of the primary triggers for most unreasonable conduct by complainants.

• ‘It’s not my fault’: Some complainants exhibit an inability to accept responsibility and a need to blame others.

• Recreation: An all-consuming hobby or activity (for example, to keep the mind active in retirement!).

Psychological

• Short fuse: Some complainants have a low anger threshold or limited self-control.

• Querulance: Some complainants exhibit behaviour characteristic of querulous paranoia, which impacts on their interactions with bureaucracies and large service providers. Querulous paranoia is related to litigious paranoia associated with vexatious litigation. I will discuss ‘unreasonably persistent complainants’ a little later.

• Irrational: For instance due to the effects of alcohol or drugs, or reduced mental capacity due to mental illness, and so on.


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In practice it would be inappropriate for complaint handlers to attempt to psychoanalyse a complainant or to speculate about his or her mental health, or often even about his or her motives. Complaint handlers are unlikely to have the professional qualifications to identify personality or psychiatric issues, and even if they did, they are unlikely to have the necessary face-to-face contact to be able to do so.

4. How do differing perceptions complicate the problems caused by unreasonable conduct?

Differing awareness of or perceptions about the relevant facts and circumstances are a fact of life for both courts and complaint handlers, if not a primary reason for their very existence.

The starting point for the presiding officers of courts and complaint handlers is that they must reach conclusions based on available evidence. They cannot accept the unsupported claims of either side as being the truth. They recognise that there are generally two sides to every dispute and that sometimes it is not possible to conclusively prove who was right or wrong on the evidence available.

On the other hand, experience suggests that the starting point for many litigants (particularly self-represented litigants) and complainants is that it is only fair and reasonable that their concerns be fully addressed and that the outcome will be one which they are entirely satisfied with.

What complicates the situation no end is that most people whose conduct is perceived by complaint handlers to be unreasonable are likely to view their own conduct as being reasonable in the circumstances. I remember an interview with the comedian Mike Myers in which he quoted his mother as saying ‘Even villains are the heroes in their own plays’! How reasonableness (and fairness) is assessed can vary considerably depending on the perspective of the person or body making the assessment. For example while in the subjective judgment of a complainant their conduct might appear reasonable because of what they perceive as its cause, a complaint handler may validly assess the conduct to be unreasonable due to what they perceive as its impact. This is particularly the case when they perceive the seriousness of the cause as not being proportionate to its impact.

Thankfully for all concerned, where desired outcomes are not achieved most litigants and complainants are able to ‘normalise’. They are able to see things in proportion – to balance the possibility and practical value to them of success against the effort/cost of further pursuing their issue, and in appropriate circumstances decide to let go and move on. Unfortunately, experience shows that some litigants and complainants are unable to normalise and ‘move on’.

5. What are the behaviours characteristic of unreasonably persistent complainants?

The most significant and frequently cited report on research undertaken into the issue of ‘Unreasonably persistent complainants’v, complainant behaviour the researchers associated with ‘querulousness’, i.e. the psychiatric diagnosis of querulous paranoia.

This paper was published in the British Journal of Psychiatry in 2004. This pioneering Australian research was conducted by Dr Grant Lester, Beth Wilson, Lyn Griffin, and Professor Paul E Mullen. The study found that compared to a matched control group, the people they identified as ‘unusually persistent complainants’:


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• pursued their complaints for longer, including after their case was closed,

• produced far greater volumes of documentation in support of their case,

• telephone more frequently and for longer,

• engaged in behaviour that was typically more difficult and intimidating, and

• often wanted what a complain handling system is not designed to deliver – vindication, retribution and revenge.

In my experience, the conduct of complainants that can become unreasonably persistent can be divided into at least two broad categories:

• campaigners - unreasonable conduct by people who make either one or two complaints that they pursue relentlessly, or numerous complaints against a range of parties concerning a variety of issues - the activities of such complainants being more in the nature of a hobby, and

• querulants - unreasonable conduct involving a number of the characteristics of querulance - the chances are that this type of behaviour will present the greatest challenge to complaint handlers and court staff.

The behaviour associated with querulance appears to develop slowly over time (possibly over some years), so complaint handlers are likely to experience people at various stages in the escalation of such behaviours.

While in practice many complainants might exhibit one or even a few of the following characteristics, either temporarily or consistently, the research undertaken in this areavi and practical experience indicates that the distinguishing features or manifestations of querulance are likely to include a number, if not all, of the following:

• a rejection of any responsibility,

• a quest for total vindication, retribution and revenge - which intensifies into a fixation as time goes on associated with a loss of focus on the original issue,

• over-optimistic expectations of compensation and/or punishment - compensation for their loss and efforts to seek justice and retributive punishment of those they perceive to be responsible for the wrong done to them,

• a strong belief that their issue is of far greater importance than the facts indicate - there is likely to be a firm belief that their issue raises a significant question of ‘public interest’, although they nearly always have a personal stake in the issue, either directly or in a related issue,

• logical and clear reasoning, but from an incorrect or unfounded premise – the underlying assumption that is the foundation of their view about the wrong they have suffered is likely to be incorrect or unfounded,

• the underlying assumption at the core of their quest is held with an absolute conviction that is impervious to reason, i.e. they cannot be deflected from their course by logical argument about the flaws in or the merits of their case or the appropriateness of their conduct – some beliefs persist even where the evidence for them is shown to be falsevii, and long experience demonstrates that beliefs that were not arrived at logically are unlikely to be changed through the application of logic.


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In the case of people exhibiting characteristics associated with querulance, further features or manifestations may include:

• behaviour that is disproportionate to the motivating loss or injury - particularly when they reach the stage where their grievance and the overwhelming need to restore their rights has become the defining factor or prime focus of their life and effectively part of their very identity.

• an emotionally charged belief that they were unjustly treated/wronged - feelings that they have been victimised, persecuted and/or humiliated,

• a loss of focus on their grievance over time - the number of grievances are likely to escalate and multiply, with an associated increase in the number of involved parties (probably because improper motives/ethics are imputed to any person who makes a decision that runs counter to their views),

• written communications that have an idiosyncratic look [but not always!] - - uppercase, lowercase, underlining, bold, highlighting, coloured ink, italics, - numerous notes of exclamation and interrogation, - references to themselves in the third person by name or, for example, as ‘the defendant’ - the substance of their complaint being repeated in several different ways, - extensive use of inappropriate ‘legalese’, - frenetic and energised communication styles.

6. What are the detrimental impacts of such conduct? While in practice litigants and complainants who engage in unreasonable conduct make up a very small proportion of the total numbers of complainants and litigants, the detrimental impact of their conduct on others (and on themselves) is vastly disproportionate to their numbers. The detrimental impact of such conduct can include:

1) Work health and safety impacts:

Dealing with unreasonable behaviour will inevitably cause stress, which in turn raises issues relating to work health and safety and the employers common law duty of care. In research conducted in various complaint handling organisations in Victoria, Professor P Mullen and Dr G Lester found that 48 % of case officers reported an avoidance response or avoidance behaviour in their dealings with persistent complainants compared to 0% percent in their dealings with the control groupviii.

Another impact stems from the common practice of some litigants and complainants who do not obtain the desired outcome, to almost automatically make complaints to oversight bodies, Ministers, etc, about the conduct of the presiding officer, complaint handling organisation, or the case officer.

Verbal attacks on those seen as responsible, often in the most intemperate terms, are not uncommon. Such conduct has been described as being a ‘suicidal approach’ to a call for help. One judge has described people who regularly complain about the conduct of any judicial officer who decides against them as people who are ‘…prone to impute the worst motives to those who are opposed to him or who have to adjudicate upon his case’ [per Sholl J in R v Collins [1954] VLR 46 at 57-8]. It is not uncommon for self-represented litigants to also make complaints about the presiding officer to the Judicial Commissionix, to Law Society about the solicitors representing the other side, and even to the Bar Council about the conduct of opposing counsel!


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2) Resource implications:

The number of proceedings instituted by some litigants, and complaints made by some complainants, and the way some litigants and complainants pursue their ‘campaigns’, can have a disproportionate impact on the resources of a court or complaint handling organisation. Although they make up a small percentage of litigants and complainants, they can take up an inordinate amount of time and resources.

From discussions with thousands of complaint handlers from hundreds of complaint handling organisations across Australia, New Zealand and Canada, the general consensus is that approximately 3 to 5 percent of complainants take up 25 to 30 percent of resources. However, many examples were also given where one or two complainants had taken up 70 to 90 percent of the available resources for considerable periods of time.

The litigation and/or complaint activities of certain people can also have resource implications for more than one organisation. Experience with and research into the activities of unreasonably persistent complainants indicates that a number spread their attentions across a range of organisations. For example: ‘The persistent complainants themselves were more likely to involve other agencies as the complaints procedure progressed, with 77% contacting at least one other agency …, and 37% contacting four or more …x.’

The NSW Supreme Court keeps a public register of individuals against whom vexatious proceedings orders have been madexi. A comparison of the names on this Registerxii as at December 2013 with the names of repeat complainants to the NSW Ombudsman, Judicial Commission, Legal Services Commissioner and ICAC has revealed some interesting results:

NSW Ombudsman In relation to the Ombudsman:

• of the 25 vexatious litigants, 20 have a history of complaints to the NSW Ombudsman (a total of 182 complaints between them),

• of these, 10 (or 50%) have been informed by the Ombudsman that any further correspondence raising the same or similar issues will be read and filed without acknowledgement.

Judicial Commission The NSW Judicial Commission has informed me that:

• of the 25 vexatious litigants, 12 are repeat complainants to the Commission, and

• of these 12 repeat complainants, 3 have been declared vexatious complainants by the Commission under s. 38 of the Judicial Officers Act 1986xiii (out of a total of 9 people so declared by the Commission in its 25 years of operation).

Legal Services Commissioner The NSW Legal Services Commissioner has informed me that:

• of the 25 vexatious litigants, 19 have a history of complaints to the OLSC (a total of 93 complaints between them),


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• of these 7 have been informed (in relation to at least one complaint) that no further response will be provided without fresh evidence or complaints about fresh issues, and

• 4 of those listed have been warned about unacceptable conduct and behaviour in dealing with the office.

ICAC The NSW ICAC has informed me that:

• of the 25 vexatious litigants, 15 have made one or more complaints to the Commission,

• of these, 3 (or 20%) have been informed by the Commission that any further correspondence raising the same or similar issues will be read and filed without acknowledgement.

3) Equity implications impacting on other users of a service:

There are significant implications on the resources available to deal with other complaints because some people insist on exercising their rights in ways that detrimentally impact on the ability of others to exercise their rights.

Most complaint handlers have limited resources so the more that are devoted to certain people, the less there will be available for others. This is a very important equity issue and one of the objectives of properly managing unreasonable conduct is to ensure equity in the distribution of complaint handling resources between complainants.

4) Impact on the litigant/complainant:

Implications for the welfare of the complainant

Unreasonable conduct taken to an extreme can also have serious impacts on the complainants themselves as their crusade gradually takes over and destroys their lives. Professor Mullen and Dr Lester referred to this as a ‘gradual but ultimately devastating social decline’xiv in the course of which vexatious litigants and unusually persistent complainants have ‘laid waste to the financial and social fabric of their lives’.xv

Implications for the handling of their complaints

In research conducted by Professor Mullen and Dr Lester and others found that 48 % of case officers reported avoidance behaviour in their dealings with people they described as ‘unreasonably persistent complainants’ (discussed in more detail below) compared to zero % in their dealings with the control group.xvi Such an avoidance response is a normal human response to behaviours that are perceived to contravene social norms, particularly where people feel helpless, inadequate, frustrated, anxious or threatenedxvii.


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7. What can a complaint handler expect where a complainant escalates a conflict?

In the late 1990s a Swiss psychologist, Dr Friedrich Glaslxviii, developed a model that explores the internal logic of conflict relationships. Glasl identifies nine levels of conflict escalation, divided into three stages: Win-Win; Win-Lose; and Lose-Lose. Each descending level is marked by an increase in the intensity of the conflict.

The relevant conflicts in the court context might be between litigants and the persons or organisations the subject of their original disputes or complaints, and/or other parties drawn into the conflict as it escalates (for example particular registry staff or presiding officers).

The Glasl model contains many useful insights that can assist registry staff, presiding officers, and complaint handlers, to analyse what is occurring when confronted by an ongoing and escalating dispute. Hopefully these insights may assist them to pre-empt or appropriately respond to the forces underpinning and shaping the development and escalation of a conflict by a litigant.

I see considerable congruence between:

• Glasl’s thoughts on conflict escalation,

• the findings of the research conducted by Dr Lester and Professor Mullen (and others) xix into unreasonably persistent complainants,

• anecdotal evidence from numerous experienced complaint handlers, and

• my own 30 years of experience in complaint handling.

In my opinion, Glasl’s levels of conflict escalation could well be describing stages in the development of querulance. In this regard, the work of Professor Mullen & Dr Lester, and of Dr Glaslxx, both refer to the intensification of conflicts/behaviour in a largely similar fashion:

• that the behaviours involved develop over time, and

• that these developing behaviours can best be described as a ‘descent’ (Mullen and Lester referring to the impact of querulance on the querulant as a ‘downward spiral’, and Glasl referring to the intensification of a conflict as a ‘downward movement’).

Glasl notes that as a conflict escalates down the first three of his levels, the focus of concern of one or both of the parties can be expected to change from:

• ‘factual differences’ - the parties have a difference of opinion about the facts, to

• ‘personal differences’ - the relationship between the parties breaks down, to

• ‘conflict about the conflict’ - the parties interpret the reasons and background to the dispute differently, to

• ‘conflict about the conflict resolution’ - the parties seek to resolve the dispute in conflicting waysxxi.

While Glasl writes in terms of both parties to a conflict being at each conflict level concurrently, in my experience the parties to a conflict can at any point in time exhibit the behaviours associated with different levels, and it is only necessary that one party even be aware there is a conflict.


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Another possible point of divergence between the Glasl model and practical complaint handling (and I presume court) experience is that some people do not necessarily pass through each of the levels identified by Glasl, or proceed in a linear fashion. The particular value for me of the Glasl model is that his descriptions of the changes that occur as a conflict escalates work just as well in circumstances where a complainant or litigant alone is escalating the intensity of his or her interactions with the complaint handler or court. Competent complaint handlers, or members of staff or presiding officers of a court, should not get to Glasl’s first level, and in no circumstances ever allow him or herself to go beyond that level.

Glasl’s model, the Mullen and Lester research and practical complaint handling experience suggest that people may well engage in the following behaviours as they escalate a conflict:

Win-Win:

• Glasl level 1- ‘Hardening’: Rational arguments

At this level the focus is likely to be on finding a solution, but in the context of fixed and mutually inconsistent views. Starting from a difference of opinion about the facts (i.e. Glasl’s ‘factual differences’), a party may begin to perceive and give greater weight to negative information about the other party to the dispute, while either not registering or discounting positive information.

Glasl refers to this as ‘personal differences’ where the relationship between the parties breaks down. At the same time a party may well increasingly apply a selective filter affecting his/her perception of the reasons for and background to the dispute. Glasl refers to this as ‘conflict about the conflict’

As a conflict response develops in the complaint handling context, such differences in and polarisation of views are very common. In such circumstances experience indicates an increasing likelihood that the words and actions of the subject of complaint and/or the complaint handler will be misunderstood.

• Glasl level 2 – ‘Debates and polemics’: Emotional arguments

While the focus at this level would still be on finding a solution, it is likely this would now be in circumstances of decreasing trust, black and white thinking, increasing resistance to rational argument, adoption of tactical and emotional/manipulative arguments, interactions become more and more confrontational. Verbal and written communications may well shift from rational arguments to a focus on emotions and relative power issues. One or both parties may adopt what Glasl refers to as ‘tactical and manipulative argumentative tricks’ such as quasi-rational arguments to advance his/her cause.

• Glasl level 3 – ‘Actions not words’: Unilateral actions

The focus at this level is likely to be on blocking the other party from achieving its goals. At this stage one or both parties may well disagree with the way the dispute is being or will be dealt with. Glasl refers to this as ‘conflict about the conflict resolutionxxii’, where the parties disagree about the most fair and appropriate ways to attempt to resolve the dispute, and seek to do so in conflicting waysxxiii.


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In the complaint handling context an equivalent characteristic phenomenon is where complainants have a different understanding to complaint handlers about what counts as relevant evidence or a compelling argument, as well as how the complaint should be handled. In such circumstances experience shows that complainants are likely to complain about such issues as who is or will be responsible for handling the complaint or conducting any investigation, the priority given to the complaint, the methodology used to investigate the complaint, what the complainant will accept as a satisfactory outcome of the complaint, etc.

I am sure that courts experience equivalent attitudes and approaches.

Win-Lose: • Glasl level 4 – ‘Images and coalitions: Negative perceptions about judgement

The focus at this level is likely to be on winning and no longer on the substantive issues in dispute. Over time negative images of the people or organisations seen as opposing the party may dominate whenever the person interacts with them. Glasl argues that a symptom of the dynamics of this level is the difficulty of a party to mention any positive qualities of the other party. It can also be expected that a party at this level will have great difficulty in imagining what a win-win resolution to the dispute might look like. Glasl argues that another characteristic the dynamics of a conflict at this level is that that the parties are likely to actively try to enlist the support of others.

In the complaint handling context, at this level in an escalating conflict the complainant may well have decided that the complaint handler (and/or the subject of their original complaint) has questionable judgement generally, or is wrong in principle, not just in relation to the particular issue in question. The complainant may engage in what Glasl refers to as ‘deniable punishment behaviour’ involving veiled slurs and/or personal attacks on the character of or what is wrong with the other. Attempts to enlist the support of others may focus on relevant interest groups, the media, MPs, other watchdog bodies, etc. Increasingly it can be expected that this will include the use of social media to bring pressure to bear.

• Glasl level 5 – ‘Loss of face’: Negative perceptions about morality

If a conflict escalates to this level, one or both of the parties to the conflict may well experience the ‘revelation’ that the opposing party is not just wrong but untrustworthy, unethical, immoral, malicious, dangerous, corrupt, criminal and/or ‘evil’xxiv. The converse would also be true – the party that has experienced such a revelation is likely to claim the moral high ground and view him or herself as honourable and virtuousxxv. The development of such negative stereotypes perpetuates, if not escalates, a conflict.

If Glasl’s analysis is correct, a party at this level of escalation is likely to both believe his or her cause is just and not want to appear weak, so the chances of compromise or an apology are minimal. Further, there is the risk that any apology or offer of compromise or compensation offered by the other party to the dispute may well be seen as signs of weakness on their part and the first parties expectations of success raised higher.

This may well be even more likely where a party is represented by a lawyer. In a paper discussing the results of certain research, Jennifer Robbennolt, Professor of Law and Psychology, University of Illinois College of Law noted that her research ‘…demonstrated that attorneys react differently to apologies than do claimants’. She noted that while


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‘…apologies tend to lower claimants’ aspirations and estimates of a case’s fair settlement value…’, on the other hand ‘…apologies pushed attorneys’ aspirations and estimates of fair settlement values in a different direction’. xxvi

Where complainants experience such a revelation, experience shows that their focus moves from the substantive issues originally in dispute to defeating the perceived opposing party, i.e. to succeed through the failure of the other. Over time the number of grievances (i.e. causes of conflict) can escalate and multiply, with an associated increase in the number of involved parties (a phenomenon often associated with querulance)xxvii. Where this occurs, the chances are the complainant will impute improper motives/ethics to any person who makes a decision that runs counter to the complainant’s views.

• Glasl level 6 – ‘Strategies of threat’: Threats of sanctions

The focus of a complainant at this level may well be on making strategic threats of sanctions that could be applied to the other party. The perception of the situation held by one or more parties to the dispute becomes increasingly out of touch with reality. Glasl argues that in this phase the conflict becomes increasingly complex, difficult to grasp and the parties increasingly lose control over the course of events, with feelings of powerlessness leading to fear and possibly uncontrollable rage.

People at this level who feel they have been treated unfairly or are victims of injustice may grow increasingly angry and start seeking revenge. In such circumstances they may threaten to escalate the dispute to the media, any relevant professional bodies, regulatory agency or oversight/watchdog body, any relevant Minister, etc. They may also make veiled threats to harm persons or damage premises related to the dispute if their demands are not met.

In the context of unreasonably persistent complainants, Dr Lester has written that: ‘It is important to recognise that these individuals make threats of self harm and violence to others. About 50% will make threats of violence to others’xxviii. In the paper outlining the results of their research into ‘unusually persistent complainants’xxix the authors noted that: ‘Over half of the persistent complainants made some form of threat of violence directed at the complaint professionals’ and that the ‘study indicates…that threats are very much a part of the behaviour of the querulant’.

Lose-Lose:

• Glasl level 7 – ‘Limited destructive blows’: Application of sanctions

At this level in the escalation of a conflict the focus of at least one party is likely to have moved to damaging or destroying the other party. Malice may well have become a driving force and the person’s calculations of the consequences of his/her actions may become increasingly skewed. What the person perceives to be ‘losses’ experienced by the other party may be counted as ‘gains’, even though these outcomes do not give any benefits in terms of the substantive issues originally in disputexxx.

In the complaint handling context this approach to a dispute is characteristic of (but not limited to) the approach adopted by complainants exhibiting behaviours associated with querulousness. Complainants (and presumably litigants) at this level are likely to either be unable or unwilling to acknowledge the negative impact of their actions on the other party (possibly because they cannot acknowledge that the other party has feelings or emotion), or believe any negative impact is justifiable and reasonable in the circumstances.


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• Glasl level 8 - ‘Fragmentation of the enemy’: Targeting members and supporters

The focus of a person at this level is likely to be on attacking other members and allies/supporters of the perceived ‘enemy’ (possibly even including their legal representatives) who may well be the target of complaints, verbal attacks, defamatory comments, and/or confronting behaviour and possibly violence.

This may involve complaints about the presiding officer to the media, any relevant professional body, regulatory agency or oversight/watchdog body, MPs, etc. It may also involve confronting or aggressive behaviour and possibility of self-harm or violence.

People who escalate a conflict to this level may well demonstrate behaviours characteristic of querulance. In a 2006 paper Professor Mullen and Dr Lester noted that: ‘Attacks by the querulous on court officials, claims officials and politicians are by no means uncommon. In such cases there has often been a course of conduct characterised by increasingly threatening and intrusive activities, usually over many months…’ xxxi. Dr Lester has also written that: ‘It is unknown how many actually carry out … threats [of harm] but it is not rare for secure forensic psychiatric hospitals to treat querulants who have threatened and harmed others’xxxii.

• Glasl level 9 – ‘Together into the abyss’: Self-preservation instinct overridden

At this level the focus is on destroying the other party at any cost. Self-destruction is seen as an acceptable price to pay and the ‘crusade’ will be pursued no matter the personal cost, be that unemployment, bankruptcy, divorce, imprisonment, etc.

Particularly where a person has gone down the ‘querulant’ path, it can be expected that the self-preservation instinct will be overridden by the overwhelming desire to harm the perceived enemy. Alternatively, feelings of intense frustration may lead a person to self-harm, including suicide (thought to be a not uncommon occurrence at the bottom of the downward spiral of querulancexxxiii).

8. What are the implications for dispute resolution? The level to which an escalating conflict descends is likely to have a significant bearing on the effectiveness of the various ‘cure’ type mechanisms that may be brought to bear to resolve or adjudicate the issues in dispute. This is because as a conflict escalates, the more force that will be required to achieve a concrete outcome. This has implications for the management of dispute resolution in relation to advice given to people about the dispute resolution mechanism likely to be most effective in their circumstances.

Glasl notesxxxiv that the parties are only likely to be able to solve problems themselves (i.e. without outside intervention) while a conflict is in one of his three Win-Win levels. In his view, from level 4 downward external forms of help are the only ones with a chance of success. Assuming that Glasl’s insights paint an accurate picture of the characteristics of the conflict at each of his levels, it appears to me that in the Australian context the possible options that are likely to be most effective (including cost-effective) are:

• Levels 1-3: self-help

• Levels 1-4: mediation


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• Levels 1-6: ombudsman or other external complaints mechanisms (bodies that can make only non-enforceable recommendations or suggestions)

• Levels 1-8: mandatory conciliation/arbitration (including small claims type tribunals)

• Levels 5-9: courts and administrative tribunals (bodies that can make enforceable determinations)

9. What strategies are available to complaint handlers to manage unreasonable conduct by complainants?

While we cannot change the person who is engaging in conduct complaint handlers find to be unreasonable (e.g. personality, reactions to situations they find stressful, standard approaches used to get their own way, firmly held pre-conceived views), we can change how we respond to such conduct. For example, there are various strategies which can be used to manage the person’s interactions with an organisation and its staff, and access to its services and premises,

The appropriate approach that should be adopted in the management of unreasonable conduct by complainants is very similar to the ‘unconditionally constructive strategy’ advocated by Fisher and Brownxxxv. They summarised their approach for the development of a good relationship in a conflict situation as: ‘Do only those things that are both good for the relationship and good for us, whether or not they reciprocate’, advocating:

1. Rationality: Even if they are acting emotionally, balance emotions with reason.

2. Understanding: Even if they misunderstand us, try to understand them.

3. Communication: Even if they are not listening, consult them before deciding on matters that affect them.

4. Reliability: Even if they are trying to deceive us, neither trust them nor deceive them; be reliable.

5. Non-coercive modes of influence: Even if they are trying to coerce us, neither yield to that coercion nor try to coerce them; be open to persuasion and try to persuade them.

6. Acceptance: Even if they reject us and our concerns as unworthy of their consideration, accept them as worthy of our consideration, care about them, and be open to learning from them.

The approach taken by the Australian Ombudsman is to avoid ‘diagnosing’ the person and to focus on strategies to address the problems caused by particular types of unreasonable conduct. At the core of their approach is the realisation that a ‘one-size-fits-all’ focus on the person is inappropriate. To effectively and fairly manage unreasonable conduct, the strategies used need to be tailored to address the particular problems caused by particular complainants.

To facilitate this new approach, the ombudsman have identified five separate categories of unreasonable conduct, with associated management strategies:

1) Unreasonable persistence – this includes persisting with a complaint even though it has been dealt with to finality, refusing to accept the complaint handler’s decision, excessive correspondence, etc.


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This conduct is addressed through management strategies that are about saying ‘no’,

2) Unreasonable demands – this includes insisting on outcomes that are unattainable, demanding that their complaint be handled in a particular manner.

This conduct is addressed through management strategies that are about setting limits,

3) Unreasonable lack of cooperation – this includes deliberately withholding information and acting dishonestly, providing disorganised information, giving excessive or unrelated information, refusing to define the issue of complaint, etc.

This conduct is addressed through management strategies that are about setting conditions,

4) Unreasonable arguments – this includes seeing cause and effect links where there are clearly none, postulating conspiracy theories unsupported by evidence, irrational interpretations of the facts, irrational beliefs and focussing on excessively trivial matters, etc.

This conduct is addressed through management strategies that are about declining or discontinuing involvement at the earliest opportunity, and

5) Unreasonable behaviour – this includes anger, aggression, threats, threatening conduct, etc.

This conduct is addressed through management strategies designed around a risk management protocol that we are developing.

A range of strategies that may assist complaint handlers to appropriately manage unreasonable conduct by complainants are outlined in the NSW Ombudsman publication: Managing Unreasonable Complainant Conduct Practice Manualxxxvi.

10. What strategies are available to the courts to manage unreasonably persistent litigators?

Many of the strategies available to complaint handlers to respond to unreasonable conduct by complainantsxxxvii could be used by registry staff to respond to the common scenarios outlined earlier in this paper. Unfortunately most of those strategies are unlikely to be options available to the presiding officers of courts /tribunals in the management of unreasonably persistent litigants (particularly self-represented litigants) given that they are exercising a legal right to commence proceedings. However, depending on the nature of the activity and behaviour of a particular litigant, some or all of the following 10 strategies may be appropriate:

1) Rejecting/Dismissing matters where there is no apparent cause of action:

Where there is a history of litigation, particularly unsuccessful litigation, a robust assessment should be carried out as to whether the originating documentation discloses a valid cause of action.

2) Repeating/Clarifying evidentiary requirements:

Ensure that the evidentiary requirements for success are clear (that is, what the litigant must prove through independent evidence and that the litigants' absolute conviction about the truth of his or her claim will not sufficient). It is important in any such discussion with the


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litigant to avoid challenging his or her underlying assumption/belief, but instead to focus on the evidence that will be required to substantiate that assumption/belief.

It is also important to explain the evidentiary requirements in simple, non-technical, language. While querulants in particular commonly use legal terminology that suggests a competence in the law, it is likely that they will not have any significant understanding of the legal concepts or principles or the relevant rules and procedures that apply (at least in their early litigation, although over time such litigants may well gain detailed knowledge through experience!).

3) Reducing expectations - managing the litigant’s expectations:

It is very important that the presiding officer and registrar take steps at the outset to ensure that that the litigant is clear about:

• the fact the court effectively ‘owns’ and therefore controls its practices and procedures – it is important to ensure litigants are aware that the system is effectively immutable and they should have no expectation that they will be able to control (or even influence) the court’s practices and procedures, or what the outcome will be.

• the various limitations on the discretions and powers available to the court, and

• the likely outcomes that might be achieved through the litigation, including the likelihood of significant compensation and/or punishment of the persons or organisations the litigant perceives to be responsible for the wrong (if deemed necessary this message may need to be regularly reinforced).

Given that research and experience indicate that querulance does not appear fully formed from the outset but develops over time, attempts to manage the expectations of such litigants (including questioning the correctness of their underlying assumptions) are more likely to have some chance of success if undertaken at the outset of the litigation.

4) Recognising reality - managing the presiding officer’s expectations

It is important for presiding officers to understand that for these litigants the only outcome that is likely to be acceptable total vindication. Anything less is likely to result in appeal, and most probably a complaint made about the presiding officer’s conduct to the chief justice of the court and/or the Judicial Commission (possibly along with complaints about opposing counsel to the Bar Council and about the opposing solicitors to the Law Society, etc).

It is unlikely that such litigants will feel suitably vindicated by merely winning the action unless there is also an explicit acknowledgement that the respondent’s conduct (and/or its relevant staff) was criminal, corrupt or at a minimum seriously negligent, probably along with the awarding of considerable compensation. This becomes more problematic in the case of repeat self-represented litigants as they typically 'move the goal posts'.

5) Requiring compliance with the rules and directions:

The applicable court rules should be rigorously enforced, particularly time limitsxxxviii for lodging or responding to submissions or the provision of information/documentation. Querulants in particular (and most probably other repeat self-represented litigants) are likely


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to be disorganised and overwhelmed by the pressures created by the growing number of actions, complaints, etc that they have on foot at any particular time. Granting more time is unlikely to result in compliance, or less confusion.

6) Rendering Orders for costs (in appropriate circumstances):

In the exercise of any discretion to whether to impose orders for costs should be imposed, weight should be given to factors such as the numbers of:

• actions the litigant has commenced (in total);

• unsuccessful actions; actions against the same respondents;

• actions substantially concerning the same issues.

For some years when we had the FOI jurisdiction, I tracked the campaigns of various repeat self-litigators in the ADT, a number of whom had also been repeat complainants to the Ombudsman before we closed that door. When their names stopped appearing in the lists and in judgements I found a correlation with the imposition of orders for costs.

7) Redistributing the load:

Since a presiding officer who hands down a decision that does not support the litigant is likely to be the subject of complaint (as well as the decision being appealed), it is not fair or reasonable to allocate all matters concerning the same litigant to one presiding officerxxxix. When it becomes clear that an individual is commencing multiple actions, matters should be shared among available different presiding officers

8) Responding to threats (risk aversion):

The presiding officer’s, registrars, and other court staff, should react to all threats, or implied threats, by explicitly acknowledging and reproving them and directing the person to stop the behaviour. The person should be informed:

• in all cases of the courts/tribunals protocols for responding to threats,

• in relation to less serious threats, the repercussions that will flow if the behaviour continues,

• in relation to more serious threats, that they will be reported to police.

If appropriate, affected persons could be encouraged to seek an order under the Crimes (Domestic and Personal Violence) Act 2007.

9) Reacting to aggression or violence (safety first):

The presiding officer, registrar and/or court security staff should react immediately to all aggressive or violent behaviour:

• aggressive individuals should be directed to leave the premises and physically removed by security or the police should they fail to do so,

• violent individuals should be removed by police and charged with relevant offences,

• in such circumstances, consideration should be given to whether the litigant should be barred from either representing themselves or appearing in person in any future hearings, or the matter should proceed on the papers.


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If necessary, affected persons should be encouraged to seek an order under the Crimes (Domestic and Personal Violence) Act 2007.

10) Rebuffing familiarity (maintaining boundaries):

Presiding officer’s should maintain the formality of the court, discouraging any over-familiarity during proceedings, and avoid any personal contact with the litigant outside of the court/hearing room.

While in theory an order under the Vexatious Proceedings Act 2008 could be sought, as discussed below the availability of such orders in practice is severely limited by the evidentiary requirements that apply.

11. What are the problems with the Vexatious Proceedings Act 2008? While the NSW Vexatious Proceedings Act 2008 are an improvement on the vexatious litigant provisions of the former s.84 of the Supreme Court Act 1970 (for example they include a broader definition, application to certain tribunals, greater flexibility for the courts to make and rescind orders), arguably they do not go far enough.

In my opinion, these new provisions do not address a fundamental issue: the rational for the largely unfettered right of access to the civil courts and tribunals is to seek the resolution of disputes. However, as research and long experience have shown, the only resolution that is acceptable to many of the people who engage in litigation (and /or complaining) practices is complete vindication. Compromise is not an option and satisfaction is unlikely because the goalposts are commonly either quite unrealistic to start with or move in that direction.

Two of the key problems with the earlier provisions were that they required an assessment to be made of the litigant’s motive in ‘habitually and persistently’ bringing proceedings and it was necessary to show a history of failure in those proceedings. The new provisions have unfortunately largely retained these requirements (although in a different form):

• the person must have ‘frequently’ instituted or conducted ‘vexatious proceedings’;

• the definition of ‘vexatious proceedings’ still requires that the court make an assessment as to the purpose or motive of the litigant (i.e. that all of those proceedings were ‘instituted’ and ‘conducted’ so as to ‘harass or annoy’, to ‘cause delay or detriment’, or for/to achieve ‘another wrongful purpose’; and

• the proceedings must have been ‘instituted or pursued without reasonable ground’.

Apart from the difficulties involved in identifying the motive of the person in each of multiple proceedings to the satisfaction of the court, if the person has been successful in any of those proceedings the chances of obtaining an order diminish considerably.


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For example, a few years ago one litigant was a party to 23 decisions of the NSW Administrative Decisions Tribunal (the ADT) in its Privacy jurisdiction (of which only two were successful). While on the one hand one of these decisions involved what was probably the first award of damages by the ADT for a breach of privacy, on the other hand at one point this applicant and another repeat applicant between them were a party in approximately 40% of the privacy cases in the ADT in a four year period (involving 38 decisions). Another self-represented litigant was a party to 80 FOI decisions of the ADT, including 46 decisions of the General Division of the Tribunal and 34 decisions of the Appeal Panel. He was also a party to 15 decisions of the Supreme Court of NSW and 6 decisions of the Court of Appeal. Of the General Division decisions, 20 related to procedural/bias/costs issues and 27 to merits issues. While this litigant was successful to one degree or another in a number of the cases before the ADT, Supreme Court and Court of Appeal, with few exceptions these were cases dealing with procedural issues. There was another repeat litigant in the ADT who was the subject of 32 decisions in its FOI jurisdiction (successful in six cases, and partially successful in two others). While these two litigants may have had some successes in their proceedings, at one point between them they were a party in over 30% of the FOI decisions handed down by the ADT in a four year period.

Arguably the Vexatious Proceedings Act was drafted primarily to address the impact of such litigation on the courts and on the individual respondentsxl. It appears that much less emphasis was placed on the broader resource and equity implications of persistent litigation outlined earlier.

These considerations warrant a rethink about the threshold over which repeat litigation can be considered to be so unreasonable as to outweigh the public interest in allowing individuals unfettered access to the courts and tribunals.

12. Is there a better approach? It should be possible to draft a provision that would allow courts and tribunals to manage their interactions with people who are creating resource, equity and/or safety issues through repeat litigation (particularly repeat self-litigation). What is needed is an approach that:

• labels the conduct not the person,

• enables the courts to implement a number of management strategies to respond to different types and seriousness of problems, and

• contains criteria that do not focus on motive issues but on such things as the numbers of proceedings, subject matter of proceedings and the conduct of the litigant.

This is not to say that the Act should not retain motive criteria as one option. However, given the difficulties associated with proving motive, it may be preferable to introduce an explicit ‘substantial purpose’ test, to reduce the evidentiary burden on the party seeking to demonstrate that the other party is acting unreasonably or inappropriately.

In relation to content issues, relevant criteria might include where the presiding officer believes, on reasonable grounds, that a number of proceedings have been instituted by a litigant that:

• are repetitious in relation to their subject matter and the respondent, and/or


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• contain clearly false or intentionally misleading statements of a significant nature relating to matters in contention, and/or

• are made without reasonable grounds or are lacking in any substance, and/or

• are so obviously untenable or manifestly groundless as to be utterly hopeless, misguided or misconceived, and/or

• are on their face clearly delusional, imaginary, irrational or absurd, or an exercise in futility (based on a ‘reasonable person’ type test).

In relation to conduct issues, criteria might include:

• the conduct of the litigant has raised significant work health and safety issues for court staff (which might be a basis for placing restrictions on the litigant from attending the premises of court/tribunal in person, but may allow for a representative to appear or for the litigant to give evidence from some other location, eg, by telephone), and/or

• a number of proceedings have been commenced that can reasonably be characterised as obsessive, habitual, persistent or manifestly unreasonable in the circumstances, and/or

• a certain number of proceedings have been commenced within a specified period, and/or

• a number of proceedings against the same or related parties raising substantially the same issues as in previous proceedings that were unsuccessful (particularly if there has not been a significant interval in time between them or significant changes in relevant circumstances).

In relation to resource issues, criteria might include:

• the proceedings, considered together with previous or concurrent proceedings instituted by the same litigant, if allowed to commence or to continue, would substantially and unreasonably divert the court’s resources away from their use by the court in the exercise of its functions (similar to a ground in most FOI/access to information type legislation for refusing to deal with an access application).

13. What options should be available for courts to manage unreasonably persistent litigants?

Possible options include:

• requiring the leave of the court prior to the commencement of any further proceedings, either generally or in relation to a specific party, and/or

• requiring as a condition of the commencement of proceedings that the litigant agree to an indemnity/full costs order if the proceedings are unsuccessful, including the provision of security for costs, and/or

• imposing an upper limit on the number of separate proceedings a person can commence, either generally or in relation to a specific party, in any given period.

It would also be important to consider including an offence provision to deter people from aiding or abetting a person to avoid or get around any such order or condition.


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There are precedents for restraint type provisions that are not based on assessments as to whether a litigant is vexatious. Under the UK Civil Procedure Rules, a practice direction can be made which, among other things, sets out the circumstances where a court can make a civil restraint order against a party to the proceedings, and the consequences of such an orderxli. A supplementary Practice Direction on the making of such civil restraint orders contains provisions about the making of:

• Limited civil restrain orders – ‘…where a party has made 2 or more applications which are totally without merit’, preventing the party from ‘…making any further applications in proceedings in which the order is made without first obtaining the permission of the judge…’

• Extended civil restraint orders – ‘… where a party has persistently made claims or made applications which are totally without merit’, preventing the party from ‘…issuing claims or making applications…’,

• General civil restraint orders – ‘…where a party against whom the order is made persists in issuing claims or making applications which are totally without merit…’, preventing the party from ‘…issuing any claim or making any application …without the permission of the judge identified in the order…’.

The circumstances in which such restraint orders can be made under these Rules and the Practice Direction are based on criteria concerning volume and merit, not intent (i.e. without any reference to the prejudicial term ‘vexatious’).

In a Report to Parliament in 2009 the NSW Ombudsman suggested that the proposed new access to information Act contain a provision giving the ADT the power to make orders along the lines of civil restraint orders in the UK Civil Procedure Rules and the supplementary Practice Direction1. The GIPA Act was passed with a provision (s.100) which authorises the ADT to make restraint orders preventing a person from making access applications without the approval of the ADT1. As with the UK civil restraint orders, the orders that can be made under this provision are based on criteria concerning merit, not intent.


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14. Conclusions As the experience of numerous experienced complaint handlers from across Australia, New Zealand, Canada and the USA, and various Asian countries, has shown, a growing phenomenon over recent years is that more and more complainants are engaging in conduct that the complaint handlers find to be unacceptable. The seriousness of the conduct is also increasing. Anecdotal evidence suggests that courts and tribunals are experiencing a similar phenomenon relating to unreasonably persistent litigants, particularly self-represented litigants.

The Australasian Parliamentary Ombudsman have identified a range of strategies to assist complaint handlers to manage unreasonable conduct by complainants, which have been well received both across Australasia as well as internationallyxlii. While many of those strategies should assist the registry staff of courts and tribunals to manage unreasonable conduct by litigants, unfortunately they are not designed to address the issues that can confront the presiding offices of such bodies. In this paper I have attempted to identify a number of strategies that may help to fill this gap.

The current statutory provisions empowering courts and tribunals to manage unreasonably persistent litigants are largely unworkable other than in rather extreme circumstances where a vexatious motive can be demonstrated. There is a need for legislative amendment in line with the approach that has been adopted in the United Kingdom and more recently in the NSW Government Information (Public Access) Act 2009, which authorise action to be taken using criteria based on merit, not intent.


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Endnotes

i The project resulted in the publication of guidelines, the most recent edition being: Managing Unreasonable Complainant Conduct Practice Manual, 2nd edition, NSW Ombudsman, May 2012.

ii Unreasonable conduct by complainants is not a recent phenomenon. In a paper presented to a Seminar in Canberra in 1985, Justice Michael Kirby (then President of the NSW Court of Appeal) noted that:

‘One of the universal problems of the Ombudsman is the chronic complainer: people who feel passionately about their own cause and are uncompromising in their reaction to a negative conclusion on the part of the Ombudsman. Such people can sometimes cause a great deal of disproportionate disruption to the work of the Ombudsman and his staff….This issue was discussed at a recent meeting of ombudsman in Helsinki. It is a universal phenomenon’. Published in The Ombudsman through the Looking Glass 1977-1985, The Canberra Bulletin of Public Administration, Vol XII No.4, Summer 1985 (at p. 300).

iii Etienne Esquirol observed that: ‘Partial delirium is a phenomenon so remarkable, that the more we observe it, the more we are astonished, that a man who feels, reasons and acts like the rest of the world, should feel, reason, and act no more like other men upon a single point’ (from a paper entitled Mental maladies: a treatise on insanity, quoted by Kendlar, Kenneth S. in ‘Delusional Disorder.’ pp360-371, in Berrios,G. S. and Roy Porter.A History of Clinical Psychology, p.361. New York University Press, 1995).

iv For a related discussion see: Deutsch M., Justice & Conflict, published in The Handbook of Conflict Resolution: Theory and Practice, Deutsch M. & Coleman P., eds, Jossey-Bass Publishers, San Francisco, 2000.

v Lester G, Wilson B, Griffin L, Mullen PE, Unusually Persistent Complainants, British Journal of Psychiatry, 2004, 184, pp. 352-356. vi For example: Lester G, Wilson B, Griffin L, Mullen P.E, Unusually Persistent Complainants, British Journal of Psychiatry, 2004,

p.184; Paul E Mullen and Grant Lester, Vexatious Litigants and Unusually Persistent Complainants and Petitioners: From Querulous Paranoia to Querulous Behaviour, Behav. Sci. Law 24, pp. 333-349 (2006); and research/papers by, amongst others, Esquirol, E (1845), Krafft-Ebbing, Von R. (1879), Kraepelin, E (1904), Dietrich, Von H (1968), Astrup, C (1984), Freckelton, I (1988), Mullens, P & Lester, G (2005).

vii A phenomenon referred to as ‘belief perseverance’. See for example: http://en.wikipedia.org/wiki/Belief_perseverance#Persistence_of_discredited_beliefs.

viii Lester G, Wilson B, Griffin L, Mullen PE, Unusually Persistent Complainants, British Journal of Psychiatry, 2004, 184, p. 353. ix Interestingly, in each of its last 5 annual reports (at least) the Judicial Commission has specifically commented on the high

proportion of complainants to the Commission by persons who were self-litigators (49% in 2012-2013; 27% in 2010-2011; 37% in 2009-2010; 40% in 2008-2009).

x Lester G, Wilson B, Griffin L, Mullen PE, Unusually Persistent Complainants, British Journal of Psychiatry, 2004, 184, p. 354. xi S.11, Vexatious Proceedings Act 2008. xii In relation to the Register, a telling comment made by one of the people I consulted in preparing this paper concerned what appears

to be the reluctance of the Supreme Court to declare a person a vexatious litigant: ‘ other than its surprising brevity, the list is notable chiefly for who is not on it, rather than who is’!

xiii Of the legislation establishing and empowering integrity agencies/watchdog bodies/complaint handlers that I am aware of, this appears to be a provision unique to the Commission.

xiv Lester et al above. xv Mullen and Lester above. xvi Lester et al, above, p.353. xvii See for example: McLeod, H.J., Deane F.P. & Hogbin B., Changing staff attitudes and empathy for working with people with

psychosis, Behavioural and Cognitive Psychotherapy, 2002, 30(4), pp. 459-470. xviii Glasl F., Konfliktmanagement. Ein Handbuch für Führungskräfte, Beraterinnen und Berater, Bern/Stuttgart: Paul Haupt Verlag,

1997; and Glasl, F., Confronting Conflict – A first-aid kit for handling conflict, Hawthorn Press: Translated by Petra Kopp (originally published in German by Freies Geistesleben as Selbsthilfe in Konflikten), 1997.

xix Lester G, Wilson B, Griffin L, Mullen PE, Unusually Persistent Complainants, British Journal of Psychiatry, 2004, 184, pp352-356; and Paul E Mullen and Grant Lester, Vexatious Litigants and Unusually Persistent Complainants and Petitioners: From Querulous Paranoia to Querulous Behaviour, Behav. Sci. Law 24, 333-349 (2006), p. 345.

xx The references to the Glasl model are based on a summary prepared by Thomas Jordan that can be found at http://www.perspectus.se/tjordan/Escalationmodel.html.

xxi Above at pp. 23-24. xxii As above at pp. 23-24. xxiii For a related discussion see: Pearce B. & Littlejohn S. W., Moral Conflict: When Social Worlds Collide, Sage Inc, Thousand Oaks,

California, 1997, at 69; Kimmel P. R., Culture and Conflict, published in The Handbook of Conflict Resolution: Theory and Practice, Deutsch M. & Coleman P., eds, Jossey-Bass Publishers, San Francisco, 2000, at p. 459.

xxiv See also Pruitt D. G. & Rubin J. Z., Social conflict escalation, stalemate, and settlement , Random House, 1986; Opotow S., Aggression and Violence, published in The Handbook of Conflict Resolution: Theory and Practice, Deutsch M. & Coleman P., eds, Jossey-Bass Publishers, San Francisco, 2000, at p. 417.


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http://en.wikipedia.org/wiki/Belief_perseverance%23Persistence_of_discredited_beliefs

http://www.perspectus.se/tjordan/Escalationmodel.html

xxv Referred to by social psychologists as ‘fundamental attribution error’, also known as the correspondence bias or attribution effect, which is referred to in Wikipedia as ‘...people's tendency to place an undue emphasis on internal characteristics to explain someone else's behavior in a given situation, rather than considering external factors’: http://en.wikipedia.org/wiki/Fundamental_attribution_error.

xxvi Robbennolt J. K, Attorneys, Apologies and Settlement Negotiation, Social Science Research Network: http://ssrn.com/abstract=1275419.

xxvii See Pearce B. & Littlejohn S.W., at p. 69. xxviii In the article in the Judicial Officers’ Bulletin (April 2005, Vol. 17, No.3) entitled The Vexatious Litigant. xxix See endnote vii above. xxx See Pearce B. & Littlejohn S.W., at p. 73. xxxi Entitled Vexatious Litigants and Unreasonably Persistent Complainants and Petitioners: from Querulous Paranoia to Querulous

Behaviour, [Behav. Sci. Law 24, pp. 333-349]. xxxii In the article in the Judicial Officers’ Bulletin (April 2005, Vol. 17, No.3) entitled The Vexatious Litigant. xxxiii In their writings on querulance, Dr Lester and other researchers have commented on the significant risk of physical and sexual

violence, as well as death through suicide. xxxiv Glasl F., Confronting Conflict – A first-aid kit for handling conflict, Hawthorn Press: Translated by Petra Kopp, 1997, at p. 119. xxxv Fisher, R., & Brown, S., ‘Getting together: Building a relationship that gets to yes’, Boston: Houghton Mifflin, 1988, at p. 38. xxxvi 2nd edition, NSW Ombudsman, May 2012, downloadable at: http://www.ombo.nsw.gov.au/news-and-

publications/publications/guidelines/state-and-local-government/unreasonable-complainant-conduct-manual-2012. xxxvii Set out in the Managing Unreasonable Complainant Conduct Practice Manual, 2nd edition, NSW Ombudsman, May 2012. xxxviii In an article entitled ‘The Vexatious Litigant’, published in the Judicial Officers’ Bulletin of April 2005 Dr Grant Lester noted that:

‘More time granted will lead to more confusion. They are disorganised and overwhelmed and more time rarely changes this’. xxxix This is a recommendation in the article by Dr Grant Lester entitled ‘The Vexatious Litigant’, published in the Judicial Officers’

Bulletin, April 2005. xl See for example the comment by Johnson. J in Attorney-General for the State of NSW v Bar-Mordecai [2009] NSWSC 281, when

referring to former s.84 of the Supreme Court Act and the Vexatious Proceedings Act 2008: ‘The provision is designed to protect the Court’s own processes against unwarranted usurpation of its time and resources and to avoid loss caused to those who face actions which lack substance: Jones v Skyring (1992) 66ALJR 810 at 814’.

xli 3.11 Power of the court to make a civil restraint order A practice direction may set out – (a) the circumstances in which the court has the power to make civil restraint order against a party to proceedings: (b) the procedures where a party applies for a civil restraint order against another party; and (c) the consequences of a court making a civil restraint order.

xlii For example the Managing Unreasonable Complainant Guidelines, 2nd edition, published by the NSW Ombudsman have so far been translated by other international ombudsman offices (or the equivalent) into Mandarin, French, and Farsi.


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http://en.wikipedia.org/wiki/Fundamental_attribution_error

http://ssrn.com/abstract=1275419

http://www.ombo.nsw.gov.au/news-and-publications/publications/guidelines/state-and-local-government/unreasonable-complainant-conduct-manual-2012

http://www.ombo.nsw.gov.au/news-and-publications/publications/guidelines/state-and-local-government/unreasonable-complainant-conduct-manual-2012

Documents

Responding to unreasonably persistent litigators · People who make a complaint have a problem. As a general proposition you could say that people are unlikely to complain if they