A right to be heard is not a right to be heard abusively, a Federal Court judge has emphasised in issuing protective orders against a “querulous” self-represented litigant.
On Friday in Brisbane, Justice Michael Lee responded to the litigant’s behaviour – which included calling the judge a rapist, a thief, and a “criminal little shit”, and telling him to “f… off” – by directing the Registrar to prevent the man from emailing any court address.
Justice Lee also ordered that no document submitted for filing by the litigant be accepted unless and until the docket judge was “satisfied that the document contains no scandalous, abusive or otherwise inappropriate material”.
Justice Lee made the orders as he published his reasons for dismissing the man’s applications for leave to appeal interlocutory judgments made in proceedings involving the Fair Work Commission and Chartered Accountants Australia and New Zealand.
He said self-representation had become increasingly common in federal courts, with most litigants in person behaving courteously and being compelled to represent themselves by circumstances beyond their control.
“But a few litigants in person, unrestrained by the norms regulating the professional conduct of lawyers and aggrieved by perceived wrongs, behave otherwise,” he said.
“This phenomenon has occasioned significant problems for the court in the efficient exercise of its jurisdiction.
“What occurred in court this morning, and what is recorded as having occurred before the primary judge, provides an example of a litigant behaving discourteously and inappropriately towards the court and refusing to accept basic norms governing the way a court goes about resolving disputes.”
Justice Lee said the litigant sent repeated emails “expressed in completely inappropriate terms” to the primary judge’s associate and the registry, and alleged collusion and improper conduct by the primary judge.
The litigant also made allegations about Justice Lee, including that he had engaged in criminal conduct and had secret information.
“The above gives a flavour of what the court has to deal with increasingly frequently,” His Honour said.
“The court is, after all, a workplace, and elementary standards of behaviour ought to apply.
“Judges have a responsibility to behave courteously towards persons who appear in court.
“There is also a corresponding responsibility upon those who seek to engage the court’s processes to treat the court and its staff with elementary courtesy.”
Justice Lee pointed out that the primary judge made repeated attempts to accommodate difficulties identified by the litigant.
“Those accommodations included explanations of filing requirements, additional opportunities to provide material, extensions of time, adjournments, remote appearance, and Registry assistance,” he said.
“I should also note that on short notice, (the litigant) was permitted to appear remotely on the present applications before me.”
Justice Lee said after he delivered ex tempore reasons dismissing the litigant’s applications, but before he published those reasons, the man’s conduct had “intensified”.
“Such conduct cannot be tolerated. I am not prepared to simply ignore this problem and leave it to the docket judge and her chambers to now have to deal with a repetition of the conduct that they have previously had to endure and that my chambers have now experienced,” His Honour said.
“Although the law of contempt provides one mechanism by which conduct of this nature may be addressed, it is frequently an unsatisfactory response in circumstances of this kind.
“Resort to contempt proceedings may serve only to prolong disputation, provide a further platform for scandalous allegations, and consume scarce judicial and administrative resources.
“In the present circumstances, a more measured and practical response is required.”
Justice Lee said the litigant’s conduct had reached a point where orders were necessary to protect the court’s processes and those who administered them.
“Court staff, Registry officers, chambers staff and judges should not be subjected to abusive, offensive or scandalous communications of the kind in which (the litigant) has repeatedly engaged,” he said.
“Such behaviour must be brought to an end.
“The burden imposed by these communications extends beyond the personal abuse directed at the court and its staff.
“They occupy time and resources that ought properly to be devoted to the orderly dispatch of the court’s business, impede the efficient administration of justice, and distract Registry staff from attending to matters requiring their attention.
“The court has both the responsibility and the power to protect its officers and the integrity of its own processes from such misuse.”
He said the protective orders were made under r 1.37 of the Federal Court Rules 2011 (Cth), as well as under s 37P(2) of the Federal Court of Australia Act 1976 (Cth).
“The disproportionate amount of judicial and administrative time consumed in dealing with (the litigant’s) querulous and abusive communications detracts from the court’s ability to devote its finite resources to matters properly requiring attention,” he said.
“I am satisfied that the orders are therefore both necessary and appropriate.
“These orders do not deny (the litigant) access to the court or prevent him from pursuing any legitimate application or proceeding.
“Rather, they regulate the manner in which he may engage with the court so as to ensure that its processes are not abused and that court staff are not exposed to conduct that should not be tolerated.”
He added that the orders were not intended to operate indefinitely and could be varied or discharged if the litigant was prepared to behave appropriately.
In relation to the litigant’s applications, Justice Lee ruled that the grounds of appeal were not sufficiently arguable and had no reasonable prospects of success, and he dismissed the applications with costs.
Read the case here.
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