Melbourne Law School Associate Professor Katy Barnett discusses the rarity of the High Court declaring people as vexatious litigants, including last week’s case where the Court ordered that a particular litigant in person be subject to a vexatious proceedings order. The case, Conomy v Maden, had its origins in the Magistrates Court of Western Australia, where Mr Conomy had been convicted for stalking and breaching a Violence Restraining Order.
It is sometimes difficult to judge when enough is enough with unrepresented litigants. Anecdotally, when I worked as a litigator and in the court system, I observed that a fair proportion of unrepresented litigants possessed one or more of the following characteristics:
1. An obsessive fixation on their grievance;
2. A tendency to produce giant wads of documents in support of their claims (some of which are irrelevant);
3. A tendency to file documents which use quasi-legal jargon but from which it is very difficult to glean any real issues. Such documents also often have combinations of CAPITALS, underlining and bold text to highlight certain points;
4. A refusal to listen to advice on their claims, and a corresponding tendency to get angry when someone suggests that the claim is not valid; and
5. A tendency to generate conspiracy theories as to their lack of success.
However, there are occasional success stories, even before the High Court of Australia. For example, in the High Court case of Gambotto, the Gambottos represented themselves in a case involving oppression of minority shareholders, and were successful. Courts and lawyers can’t automatically write off litigants in person, because everybody deserves a chance to make their case. Consequently courts tend to be reluctant to declare someone a vexatious litigant (meaning that they are unable to file any further proceedings). In the High Court, this is achieved by a vexatious proceedings order made pursuant to s 77RN(2) of the Judiciary Act 1903 (Cth).
Pursuant to s 77RL of the Judiciary Act, ‘vexatious proceeding’ is said to include:
(a) a proceeding that is an abuse of the process of a court or tribunal; and
(b) a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) a proceeding instituted or pursued in a court or tribunal without reasonable ground; and
(d) a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
The High Court has recently ordered that a particular litigant in person be subject to a vexatious proceedings order in Conomy v Maden  HCATrans 49. It is very rare for an individual to be declared a vexatious litigant by the High Court. Prior to this, only three people have been declared to be vexatious litigants by the High Court of Australia:
- In Jones v Skyring  HCA 39, and Jones v Cusack  HCA 40, Messrs Skyring and Cusack were each barred from bringing further proceedings which sought to challenged the validity of paper money as legal tender. (They had sought to argue that gold was the only legal tender).
- In Commonwealth Trading Bank of Australia v Inglis  HCA 17, Mr Inglis bore the distinction of being declared the first vexatious litigant before the High Court of Australia, after repeatedly attempting to prevent a mortgagee’s sale.
In the present case, Mr Conomy’s legal problems arose from his 2014 conviction for stalking and 2015 conviction for breach of a Violence Restraining Order (VRO) in relation to the same female complainant. His appeals against both those convictions in the Western Australian Supreme Court failed, as did his appeal to the Western Australian Court of Appeal.
His May 2015 application for leave to appeal to the High Court in relation to the VRO was deemed abandoned in June 2016, and he was twice refused leave to reinstate it. He then attempted to file a further 10 applications before the High Court. His application for leave to appeal to the High Court in relation to the stalking conviction was dismissed in October 2016. He then attempted to file a further 12 applications. (As a side note, if one is seeking to overturn a conviction as a stalker, it is probably best not to obsessively pepper those tasked with making a decision with applications).
When he filed the final two applications in February 2019, Mr Conomy was advised that the court was considering making an order pursuant to s 77RN(2) against him. At the hearing on 6 March 2019, however, Mr Conomy sought an extension of time so that he could prepare submissions with regard to being declared a vexatious litigant. The Court was not minded to grant that extension.
Although the particular case before Keane and Edelman JJ only applied to the stalking conviction, in light of Mr Conomy’s conduct in relation to the VRO proceeding, orders were made in respect of that proceeding as well. It was held that Mr Conomy’s refusal to take ‘no’ for an answer, and his refusal to recognise that the litigation in relation to his convictions was finished, rendered him vexatious. Keane and Edelman JJ noted:
Here the limit on Mr Conomy’s recourse to the Court will be no more extensive than is necessary to preserve this Court from pointless demands on its time and resources and also to ensure that the other party to litigation concluded long ago is not subjected to the oppression of being confronted again by Mr Conomy’s unreasonable and persistent sense of grievance.
The High Court ordered that Mr Conomy was therefore prohibited from instituting any further proceedings in the High Court relating to the convictions the subject of Conomy v Maden  WASCA 30 and Conomy v Maden  WASCA 31.
There is a part of me that finds it all rather tragic. Mr Conomy clearly mistakenly believes that some injustice was done to him, but just as clearly, he has no basis for this belief.
Katy Barnett is an Associate Professor at Melbourne Law School. She was awarded her PhD in 2010, and it was published in 2012 by Hart Publishing as a monograph entitled Accounting for Profit for Breach of Contract: Theory and Practice. In 2013 she was a visiting scholar with Brasenose College, Oxford as part of the Melbourne-Oxford Faculty Exchange. Contact Katy at firstname.lastname@example.org or connect via Twitter or LinkedIn.