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Abstract
The temporary deprivation of liberty may be necessary to achieve order in the courts. However, imprisonment can have serious impacts on people with mental health problems, and for that reason it should be avoided if alternative dispositions can be made. Where should we strike a balance between liberty and detention when a querulous litigant is disrupting court processes?
Notes
1. See R v Ogawa [2009] QCA 307 at [3].
2. See R v Ogawa [2009] QCA 307 at [10]: ‘On 18 January 2008, the indictment was mentioned before his Honour Senior Judge Skoien. At that stage, the trial had been listed to commence in the following week. At the mention, the prosecution was ready to proceed. Representatives from Legal Aid Queensland (“LAQ”) appeared to advise his Honour that the appellant, though then unrepresented, had been previously represented by six different law firms funded by LAQ. In each instance, the appellant had indicated to those firms that she did not wish them to represent her. LAQ confirmed that it would no longer fund the appellant's representation’.
3. On 27 March 2009: see R v Ogawa [2009] QCA 307 at [3].
4. R v Ogawa [2009] QCA 307.
5. Ogawa v The Queen [2010] HCASL 188 (B45/2009), 25 August 2010.
6. It appears that Megumi Ogawa has taught at Southern Cross University and Macquarie University.
7. As to which, see Paul Mullen and Grant Lester, ‘Vexatious Litigants and Unusually Persistent Complainants and Petitioners: From Querulous Paranoia to Querulous Behaviour’, (2006) 24 Behavioral Sciences and the Law 333–349; Grant Lester, Beth Wilson, Lynn Griffin and Paul Mullen, “Unusually Persistent Complainants” (2004) 184 British Journal of Psychiatry 352; Ian Freckelton, ‘Querulous Paranoia and the Vexatious Complainant’ (1988) 11 International Journal of Law and Psychiatry 127; d'Orban, P.T., ‘Psychiatric aspects of contempt of court among women’, (1985) 15 Psychological Medicine 597–607. In a study of 72 case histories over a five-year period d'Orban found that almost 40% of women imprisoned for contempt of court had a psychiatric disorder. Most had a paranoid disorder, with litigiousness being a prominent feature of their illness. I have been unable to trace any published research about the mental health of contemnors since this study.
8. R v Ogawa [2008] QDC 338 at [17].
9. Rachel Schmidt, ‘The Court’s Approach in New Zealand to the Vexatious Litigant - Time For a Rethink?’ Conference on Mental Health Issues and the Administration of Justice, 2001, 1.
10. This topic is explored below.
11. As to which, see John Bonta and Paul Gendreau, ‘Reexamining the Cruel and Unusual Punishment of Prison Life,’ (1990) 14 Law and Human Behavior 347.
12. For a crisp identification of the different varieties of contempt, see Fox, J.C., ‘The King v Almon. I.’, (1908) 24 Law Quarterly Review 184–198, 188; see also Attorney-General v Times Newspapers Ltd [1974] AC 273, 307. ‘Scandalizing the judges’ is a distinct variety of contempt though it can be co-extensive with the offence of contempt in the face of the court (As to which, see Gallagher v Durack (1983) 152 CLR 238. See also Henry Burmester, ‘Scandalising the Judges’, (1985) 15 Melbourne University Law Review 313; Oyiela Litaba, Does the ‘Offence’ of Contempt by Scandalising the Court have a valid place in the law of Modern Day Australia?’, (2003) Deakin Law Review 113; Michael Addo, Freedom of Expression and the Criticism of Judges: A Comparative Study of European Legal Standards, Ashgate Dartmouth, Aldershot UK., 2000. “Contempt of court is the Proteus of the legal world, assuming an almost infinite diversity of forms”: Joseph Moskovitz, ‘Contempt of injunctions: civil and criminal (1943) 43 Columbia Law Review 780, 780). Contempt in the face of the court can be distinguished from sub judice contempt, or ‘contempt by publication’ (As to which, see New South Wales Law Reform Commission, Report No 100, Contempt By Publication, paragraph [1.10], and Australian Law Reform Commission, Contempt, Report No 35, 1987, Chapter 5). Nor is it concerned with civil contempt such as disobedience to court orders (as to which, see Witham v Holloway (1995) 183 CLR 525, 534; C.J. Miller, Contempt of Court, Clarendon: Oxford, 1989, 2–11) or with contempt of parliament (R v Richards; Ex parte Fitzpatrick and Browne (1954) 92 CLR 157 and, further, John Waugh, ‘Contempt of parliament’, (2005) 26(1) Adelaide Law Review 29–53). For another account if the Ogawa litigation see Floyd, L., ‘Fitness for trial in the absence of the (unrepresented) litigant: contempt of court and evidentiary issues’, (2010) 33 Australian Bar Review 56–66.
13. Parashuram Detaram Shamdasani v King-Emperor [1945] AC 264 at 268; Lewis v Judge Ogden (1984) 153 CLR 682 at 688; Macgroarty v Clauson (1989) 167 CLR 251 at 255.
14. In Re Special Reference from the Bahama Islands [1893] AC 138 at 148; McLeod v St Aubyn [1899] AC 549; R v O'Dogherty (1848) 5 Cox CC 348; R v Davies [1906] 1 KB 32 at 40; R v Gray [1900] 2 QB 36 at 40; In re Sashi Bhushan Sarbadhicary 23 TLT 180 at 181; Perera v The King [1951] AC 482 at 488; Porter v The King; Ex parte Yee (1926) 37 CLR 432 at 433 per Isaacs J, at 447 per Higgins J; Gallagher v Durack (1983) 152 CLR 238; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 32; Clampett v Attorney-General (Cth) [2009] FCAFC 151.
15. Bell v Stewart (1920) 28 CLR 419 at 425, 426; The King v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 446 per Starke J; Attorney-General v Newspaper Publishing Plc [1988] Ch 333 at 368. The act must produce a probability or a real and substantial interference with the administration of justice: Packer v Peacock (1912) 13 CLR 577.
16. Parashuram Detaram Shamdasani v The King Emperor [1945] AC 264, 268. Contempt in the face of the court typically takes place in the court during proceedings. Theoretically, there is no reason why it could not occur anywhere, so long as the contumelious nature of the conduct is felt within the court during proceedings (Cf McKeown v The King [1971] 16 DLR 390, 408). However proceedings need to be in train for contempt to take place; there is no contempt where the relevant proceedings are complete. It is not necessary that contempt in the face of the court involve actual physical disruption of a hearing or an impediment to its progress. Typically, though, contempt in the face of the court involves litigants interrupting legal proceedings and showing disrespect for the court in the court.
17. Morris v Crown Office [1970] 2 QB 114 at 122.
18. (1989) 88 Cr App R 63, 67.
19. Fox, J.C., The History of Contempt of Court, 1.
20. Ibid., 3.
21. Hansard, 4th series, vol. 155, 614 (4 April 1906); vol. 185, 1432 (10 March 1908).
22. Fox, J.C., ‘The King v Almon. I.’, (1908) 24 Law Quarterly Review 184–198, 188.
23. Ibid., 197.
24. Felix Frankfurter and John M Landis, ‘Power of Congress over Procedure in Criminal Contempts in “Inferior” Federal Courts – A Study in the Separation of Powers’, (1923–1924) 37 Harvard Law Review 1010–1113.
25. Coward v Stapleton (1953) 90 CLR 573, 579–580.
26. Ian Freckelton, ‘Querulent Paranoia and the Vexatious Complainant’ (1988) International Journal of Law and Psychiatry 127.
27. 10 Halsbury's Laws of England 630 (3rd edition); see Schmidt, above n 10, 3.
28. (1858) 24 Beav 654 at 665–666.
29. New South Wales Law Reform Commission, Discussion Paper No 36, Barratry, Maintenance and Champerty, para 2.2. It is not suggested that Ms Ogawa is or was a barrator.
30. Ibid, para 2.6.
31. The Victorian Law Reform Committee noted that there is little consensus about the condition, and a number of expressions (paranoia, querulous paranoia, paranoid personality disorder) are apparent in the literature. It has been argued that the characteristics of a vexatious litigant reflect one of the categories of 'de Clerambault’s syndrome’, ie. an intense delusional desire to vindicate oneself through litigation (Alan Murdie, ‘Vexatious litigants and de Clerembault syndrome’ (2002) 152 New Law Journal 61, 62). The variety of psychiatric diagnoses and debates about the diagnosis are interesting. They signal the need for further research. However it has been persuasively argued that ‘more important to identify the pattern of behaviour and its impact than to focus on the person’s mental state and whether or not it is delusional’ (Schmidt, above n #9, 20). See also the discussion in Mullen and Lester, n 8.
32. Freckelton, n 8; M W D Rowlands, ‘Psychiatric and Legal Aspects of Persistent Litigation’, (1988) 153 British Journal of Psychiatry 317–323.
33. Attorney-General v Hill (1993) 7 PRNZ 20.
34. Mullen and Lester, n 8.
35. Ibid.
36. R v Ogawa [2009] QCA 307.
37. An argument was raised at trial by the accused pursuant to s 257 of the Mental Health Act 2000 (Qld) that she was unfit to be tried. This argument was rejected by the trial judge. On appeal, Ogawa argued that the trial judge had made errors under ss 613 and 645 of the Criminal Code, which are explored below. These arguments were rejected by the Court of Appeal: R v Ogawa [2009] QCA 307 at [108] – [109].
38. Some details are provided in Ogawa v Secretary, Department of Education, Science & Training [2005] FCA 1472.
39. Glenda Koutroulis, ‘Detained Asylum Seekers, Health Care, and Questions of Human(e)ness, (2003) Australian and New Zealand Journal of Public Health 267 (4) 384; Lynda Crowley-Cyr, ‘Mental Illness and Indefinite Detention at the Ministers’ Pleasure’, (2005) 9 University of Western Sydney Law Review 53; Claire O'Connor, ‘The Impact of Detention on the Mental Health of Immigration Detainees: Implications for Failure to Deliver Adequate Mental Health Services – Who Cares?’ (2007) 9 UTS Law Review 125, 127 and 134–144; Behrooz v Secretary, DIMA (2004) 208 ALR 271; cf S v Secretary DIMIA (2005) 216 ALR 252.
40. Ogawa v Minister for Immigration [2004] FCA 1006.
41. Ogawa v Federal Magistrate Phipps [2006] FCA 361. A claim that Melbourne University engaged in unconscionable conduct contrary to s 51A of the Trade Practices Act was not pressed.
42. See e.g. Ogawa v The University of Melbourne [2005] FCA 1208; Ogawa v Secretary, Department of Education, Science & Training [2005] FCA 1513 (21 October 2005).
43. Ogawa v Secretary, Department of Education, Science & Training [2005] FCA 1650 (15 November 2005).
44. Megumi Ogawa, “Copyright in Broadcasts: Japan Strays”, (2001) 6 Media & Arts Law Review 123; “The new Copyright Management Business Law”, (2001) September (3) Media and Arts Law review 243–246; “The possibility of copyright in broadcasts in Japan” (2001) 19(3) Copyright Reporter 89–96; “The destination of Australia's digital agenda: implications of the panel case”, (2004) 15(7) Entertainment Law Review 6; Protection of Broadcasters’ Rights. Leiden/Boston: Martinus Nijhoff, 2006; “A second language speaker in court: linguistic phenomena threatening justice”, (2007) 32(1) Alternative Law Journal 28–31; “Overseas students protection law in Australia : universities, the ESOS Act, and the National Code”, (2007) 28(1) Statute Law Review 73–81; “Security for costs: an overseas student advances her case”, (2006) 31(1) Alternative Law Journal 40–42; “University grievance handling for overseas students: ESOS Act and the National Code: (2003) 10(3) Australian Journal of Administrative Law 162–170.
45. Ogawa v Secretary, Department of Education, Science & Training [2006] FCA 214 (6 March 2006).
46. Ogawa v Reynolds [2006] FCA 384 (7 April 2006).
47. R v Ogawa [2008] QDC 338 at [23]–[24]; R v Ogawa [2009] QCA 307 at [44].
48. R v Ogawa [2009] QCA 307.
49. Ogawa v The Queen [2010] HCASL 188 (B45/2009), 25 August 2010.
50. This is the language used by Judge Durward SC in [2008] QDC 238 at [3].
51. [2008] QDC 238 at [4].
52. [2008] QDC 238 at [8].
53. [2008] QDC 238 at [22].
54. [2008] QDC 238 at [25].
55. [2008] QDC 238 at [26].
56. [2008] QDC 238 at [32].
57. [2008] QDC 338.
58. Pursuant to s 613 of the Criminal Code: R v Ogawa [2009] QCA 307 at [101].
59. Pursuant to s 645 of the Criminal Code: R v Ogawa [2009] QCA 307 at [101].
60. [2009] QCA 307 at [108]–[109].
61. R v Ogawa [2009] QCA 307 at [29].
62. Ogawa v The Queen [2010] HCASL 188 at [6] (French CJ and Bell J).
63. [2009] QCA 307 at [105], [108] referring to Kesavarajah v The Queen (1994) 181 CLR 230 at 245 per Mason CJ, Toohey and Gaudron JJ; [1994] HCA 41 citing Ngatayi v The Queen (1980) 147 CLR 1 at 9; [1980] HCA 18.
64. [2009] QCA 307 at [109] citing R v Presser [1958] VR 45.
65. Ogawa v The Queen [2010] HCASL 188 at [9].
66. Attorney-General v Hill (1993) 7 PRNZ 20.
67. Attorney-General v Hill (1993) 7 PRNZ 20.
68. This quote is attributed to Beryl Collins, the long-suffering wife of Goldsmith Collins, a Victorian declared to be a vexatious litigant. Beryl Collins made this comment as Goldsmith Collins was being led from the Supreme Court of Victoria in handcuffs after berating the judges. Collins was jailed for contempt. See the wonderful book by Simon Smith, Maverick Litigants, Maverick Press, 2008, 198 and 210. Smith notes observations by one Supreme Court judge that Collins’ first litigated grievance, a dispute over a fence, had been ’genuine’: [1954] VLR 46, 58.
69. Laurence Strasburger, ‘The litigant-patient: mental health consequences of civil litigation’, (1999) 27 Journal of the American Academy of Psychiatry and Law 203–211.
70. Mullen and Lester, n 8, 333.
71. Robert Nicholson, ‘Australian experience with self-represented litigants’, (2003) 77 Australian Law Journal 820.
72. ‘A significant number of (self-represented litigants) are dysfunctional, serial litigants’: Smith, 23, citing John Dewar, Barry Smith and Cate Banks, Litigants in Person in the Family Court of Australia, A Report to the Family Court of Australia, Research Report No 20, Family Court of Australia, 2000, 1.
73. Mullen and Lester, n 8, 333.
74. ‘Self-represented Litigants: A Queensland Perspective’, (2002) 23 The Queensland Lawyer 65.
75. Rosemary Hunter, Ann Genovese, April Chrzanowski and Carolyn Morris, The Changing Face of Litigation: Unrepresented Litigants in the Family Court of Australia, Law and Justice Foundation of New South Wales, August 2002, 2–5.
76. Paul E Mullen and Grant Lester, ‘Vexatious Litigants and Unusually Persistent Complainants and Petitioners: From Querulous Paranoia to Querulous Behaviour’, (2006) 24 Behavioral Sciences and the Law 333, 337.
77. Grant Lester, Beth Wilson, Lynn Griffin and Paul E Mullen, ‘Unusually persistent complainants’ (2004) 184 British Journal of Psychiatry 352, 356.
78. Paul E Mullen and Grant Lester, ‘Vexatious Litigants and Unusually Persistent Complainants and Petitioners: From Querulous Paranoia to Querulous Behaviour’, (2006) 24 Behavioral Sciences and the Law 333, 338–339.
79. Family Court of Australia, A Report on the Mental Health Support Pilot in the Family Court of Australia and the Federal Magistrates Court, June 2006, 3.
80. The case is discussed by Chief Justice Diana Bryant in ‘Self Represented and Vexatious Litigants in the Family Court of Australia’, in Access to Justice: How Much is Too Much? The Legal and Medical Issues Arising From Vexatious or Querulous People, Prato, Italy, 30 June–1 July 2006, 36.
81. See, to like effect, Simon Smith, Maverick Litigants, 8.
82. Richard Moorhead, ‘The Passive Arbiter: Litigants in Person and the Challenge to Neutrality’, (2007) 16 Social and Legal Studies 405, 415. See also Richard Moorhead, ‘A Challenge for Judgecraft’, (2006) New Law Journal 156 and Richard Zorza, ‘The Disconnect Between the Requirements of Judicial Neutrality and Those of the Appearance of Neutrality when Parties appear Pro Se: Causes, solutions, recommendations, and Implications’, (2004) 17 Georgetown Journal of Legal Ethics 423.
83. Smith, n 69, 280.
84. Ibid, 34.
85. A v Australia 560/1993 at [9.2] and [9.4].
86. Fardon v Australia 1629/2007 at [7.4]; Tillman v Australia 1635/2007.
87. Kurt v Turkey 1997: [122] and [123]; A v Secretary of State for the Home Department 2004: [36].
88. Claire Macken, “Preventive Detention and the Right of Personal Liberty and Security under the International Covenant on Civil and Political Rights, 1966’, (2005) 26 Adelaide Law Review 1.
89. Mullen and Lester, n 8, 337.
90. Power v The Queen (1974) 131 CLR 623 at 627.
91. Erin Schiller and Jeffrey Wertkin, ‘Frivolous Filings and Vexatious Litigation’, (2001) 14 Georgetown Journal of Legal Ethics 909, 917.