'Goldsmith Collins: Footballer, Fencer, Maverick Litigator' by Simon Smith in (2008) 34(1) Monash University Law Review 191 comments
The surge in 'litigants in person' is a challenge for contemporary courts. At the extreme end are a small group of vexatious litigants or querulents who persistently and unsuccessfully pursue litigation until banned by the court. But who are they and what motivates them? This article traces the story of one of this small band of persistent litigants, Goldsmith 'Goldie' Collins (1901-1982). As a young man Collins was a champion Australian Rules Footballer with the Fitzroy Football Club. He found later notoriety through his provocative legal proceedings as a self-represented litigant against the Northcote City Council that rapidly escalated into a legal assault against all persons and institutions drawn into that web. In 1952 Collins was the fourth Australian to be declared a vexatious litigant. As the first person declared by the High Court, his declaration the next year by the Victorian Supreme Court (its third) made him the first person to be declared in two jurisdictions. Despite his declarations and being gaoled a number of times for contempt of court, Collins continued as a legal 'maverick' into the 1970s. In providing context for Collins' litigation this article will demonstrate the difficulties faced by other litigants, the profession and the judiciary when dealing with an unpredictable, even aggressive, litigant who determinedly challenges authority. Drawing on recent psychiatric literature it will also demonstrate that the vexatious litigant sanction is an inadequate response to the challenge a litigant, such as Collins, presents to the courts.
Smith argues
Unquestionably, Rupert Frederick Millane (1887-1969) was the pioneer of the Australian 'vexatious bar'. It was his extraordinary flood of unsuccessful litigation in the 1920s, mainly against the Melbourne and Heidelberg Councils, that led to the enactment in 1928 of the vexatious litigant sanction in Victoria. That provision empowered the Supreme Court to prohibit the issue of proceedings by such litigants without the Court's prior leave. It provided the model for similar provisions in all superior court jurisdictions in Australia. In 1930, Millane became the first person in Australia to be declared a vexatious litigant. If Millane was the leader of Melbourne's 'vexatious litigants' bar' then his associate (for a time), Goldsmith 'Goldie' Collins (1901-1982) was his natural successor.' Indeed, as one commentator has noted:
The 'fifties, the era of Dixon and Fullagar, is often regarded by Victorians as the golden age of the High Court. It was, even more certainly, the golden age of the great vexatious litigants - Millane and Collins.
As a young man Collins was a champion Australian Rules Footballer with the Fitzroy Football Club. However, he found later notoriety through his provocative legal proceedings as a litigant in person and then as legal 'advisor' to others. His litigation started in the 1940s over a grievance with the Northcote City Council and rapidly escalated into a legal assault against all persons and institutions drawn into that web. In 1952 Collins was the fourth Australians to be declared a vexatious litigant. As the first person declared by the High Court, his declaration the next year by the Victorian Supreme Court (its third) made him the first person to be declared in two jurisdictions. Despite his declarations and being gaoled a number of times for contempt of court, Collins continued as a legal 'maverick' into the 1970s inserting himself 'pro bono' into the cases of other self-represented litigants in Victoria and interstate.
But who are vexatious litigants and what motivates them? How do courts deal with them and is the vexatious litigant sanction effective? There has been little scholarly attention given to these and related questions. Accordingly, at a time when contemporary courts are experiencing a surge in 'litigants in person' and a perceived rise in persistent vexatious litigants, this article explores these issues through the story of one vexatious litigant, Goldsmith Collins. It will trace his life using material not previously accessed and gathered together and will provide a context for his persistent litigation. In seeking to explain his extraordinary litigation it will suggest that the underlying explanation for the behaviour that led to his being declared a vexatious litigant was an abnormality of his mental functioning. In doing so it will draw on the recent work of Australian psychiatrists Paul Mullen and Grant Lester who have been at the forefront of renewed attention being given to the challenge of managing vexatious litigants - or in medical parlance - 'querulents'. These are broadly defined as individuals who exhibit:
[A] pattern of behaviour involving the persistent pursuit of a personal grievance in a manner seriously damaging to the individual's economic, social, and personal interests, and disruptive to the functioning of the courts and/or other agencies attempting to resolve the claim.
They suggest querulousness is foremost a disorder of behaviour and only secondarily an abnormality of mental function and that personality traits, social situation, contemporary sources of distress and disturbance, even the dispute resolution systems themselves only contribute to querulous behaviour. They are positive on the potential of modern anti-psychotic medication alongside psychotherapy, to normalise the behaviour and thinking of the patient/litigant over a period of month. This of course assumes a level of patient/litigant insight and co-operation that may be difficult, if not impossible, to engender.
Of particular interest is the profile of the querulent that Lester and Mullen derive from the psychiatric literature and their own research. Querulousness is said to most commonly develop in the middle-aged adult between 30 and 50. There is a preponderance of men (4:l) and prior to onset the individual is said to have functioned competently, had a sound secondary education and fair work history. Relationships are more problematic with only 30 per cent having ever married, 18 per cent having divorced and 50 per cent having never married
Of further interest are the identifying characteristics that Lester and Mullen draw from the written communications of querulents that they examined as part of their 2003 research. They are:
Form
- Curious formatting.
- Many, many pages.
- Odd or irrelevant attachments - eg copies of letters from others and legal decisions, United Nations human rights instruments etc, all usually, extensively annotated.
- Multiple methods of emphasis including
- Highlighting (various colours)
- Underlining
- Capitalisation.
- Repeated use of "",???, !!!.
- Numerous foot and marginal notes.
Content
- Rambling discourse characterised by repetition and a pedantic failure to clarify.
- Rhetorical questions.
- Repeated misuse of legal, medical and other technical terms.
- Referring to self in third person. Inappropriately ingratiating statements.
- Ultimatums.
- Threats of violence to self or others.
- Threats of violence directed at individuals or organization
This article will draw on this research to demonstrate that the litigious behaviour of Collins departs from the general proposition of Mullen and Lester that posits querulousness is foremost a disorder of behaviour and only secondarily an abnormality of mental function. In the case of Collins it will be suggested that it was a mental disorder that was the major contributor and that unlike with other vexatious litigants where personality traits, social situation, contemporary sources of distress and disturbance, even the dispute resolution systems themselves only contribute to querulous behaviour, with Collins, they aggravated his condition.
Further, the article will canvass the dispute resolution approach of a local government authority to by-law enforcement and argue that the availability of Alternate Dispute Resolution (ADR) mechanisms (had they existed) may have forestalled the litigation that resulted from its persistent enforcement. Instead, the subsequent reliance by the Council and judiciary on the legal system with its emphasis on forms, rules, procedures, professional advocacy and sanctions such as costs and even gaol contributed to the escalation, indeed became, the dispute. This will bring into focus the difficulty that the small and intimate 1950s Melbourne judiciary faced in dealing with an unpredictable, mentally disordered and aggressive litigant, who determinedly challenged their authority. Here, it will be argued that the vexatious litigant sanction was an inadequate response to the challenge which a litigant such as Collins presents to the courts and that a multidisciplinary approach involving the medical profession may have been more effective
