The difficulties with managing vexatious or unreasonable litigants in the courtroom are well known. Notably, it is not unusual for regulators to confront similar behaviour from members of the public who make a complaint to the regulator in a non-litigious context.

A key responsibility of regulators is to investigate and respond to legitimate complaints from the public about the administration of the regulatory framework for which the regulator has oversight. The management of complainants poses risks and challenges for the regulator when the complainant engages in unreasonable behaviour.

Identifying 'unreasonable complainant behaviour'

'Unreasonable complainant behaviour' has been defined by the NSW Ombudsman Guide as “behaviour which because of its nature or frequency raises substantial health, safety or equity issues for parties to a complaint”^[1].

Behaviour exhibited by unreasonable complainants includes persistent calls and emails, angry or abusive behaviour and inappropriate comments on social media.

Unreasonable complainant behaviour can occur even when the complaint is legitimate and well-founded. In this regard, a distinction has been drawn between 'vexatious complainants' and 'unreasonable complainants':

• A vexatious complainant is a complainant who makes groundless complaints with the intent to cause distress, or, to harass the recipient of the complaint. In this instance, the overall objective of the conduct engaged in by the vexatious complainant is to cause distress and harass the staff on the receiving end of the complaint.
• An unreasonable complainant engages in bad behaviour but will generally believe that the complaint is real and has a legitimate basis.

In other words, motivation separates a vexatious complainant (whose primary objective is to distress or harass) from an unreasonable complainant (whose primary objective is to have the complaint addressed).

In general terms, a regulator will have a duty to investigate and respond to complaints that appear to be well-founded. However, it will not always be clear whether this is the case. It may involve an assessment by the regulator of the subjective motivations and intentions of the complainant.

How can a regulator manage an unreasonable complainant?

If a complainant has been behaving unreasonably, it may be appropriate for a regulator to modify or restrict access to services ordinarily offered by the regulator. This may include:

• restricting access to certain members of staff
• restricting the issues that the complainant can discuss with the regulator
• restricting the way in which contact can be made, for example, limiting a complainant to written interactions.

A regulator must be cautious in implementing any of these measures, as regulators do have a duty to consider and, in some instances, have an express statutory duty to investigate complaints made to the regulator. Therefore, any restrictions placed on a complainant should only restrict the complainant’s access to services so far as is necessary to manage their unreasonable behaviour. This is particularly critical in light of the Charter of Human Rights and Responsibilities Act 2006 (The Charter).

Under the Charter, all public authorities are required to act in a way that is compatible with human rights. Relevantly, section 15 of the Charter provides as follows:

(1) Every person has the right to hold an opinion without interference.

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether:

(a) orally; or

(b) in writing; or

(c) in print; or

(d) by way of art; or

(e) in another medium chosen by him or her;

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary –

(a) to respect the rights and reputation of other persons; or

(b) for the protection of national security, public order, public health or public morality.

Unreasonable complainant management - case studies

In Slattery v Manningham City Council [2014] VCAT 1442, Mr Slattery sent repeated abusive and offensive correspondence to the Council. The Council responded to Mr Slattery’s conduct by making a Prescribed Prohibited Person Declaration (Declaration) which prevented Mr Slattery from attending any building owned, occupied or managed by the Council. Mr Slattery applied to VCAT for a notice that the Declaration was unlawful under the Equal Opportunity Act and the Charter. In this instance, VCAT held that the Council had contravened the Equal Opportunity Act and the Charter. It said that the Declaration went beyond managing offensive communications such that it excluded Mr Slattery from all Council buildings. Critically, this limited Mr Slattery’s ability to continue to participate in public life.

VCAT arrived at a different conclusion in Richardson v City of Casey [2014] VCAT 1294. In that case, Mr Richardson made a complaint to the Council about maintenance of a local shopping centre and other infrastructure. He claimed the implementation by the Council of a range of restrictive measures including banning him from asking questions at Council meetings constituted discrimination on the basis of his political beliefs and activities under the Equal Opportunity Act and the Charter. However, the Tribunal found the ban on asking questions at Council meetings to be lawful. It said the steps were taken by the Council as a result of Mr Richardson’s disruptive behaviour and were not linked to his political beliefs or activities. Additionally, there was still scope for Mr Richardson to make complaints and raise issues through forums other than Council meetings.

Key to the effective management of complainants by regulators

The key to the effective management of complaints is to:

• be aware of unreasonable complainant behaviour and try to identify that behaviour early
• consider whether restrictive steps are necessary to manage unreasonable complainant behaviour on a case-by-case basis
• consider the Charter in the implementation of any restrictive steps, particularly whether the steps are proportionate to the unreasonable behaviour and go no further than necessary to manage that behaviour.

[1] ‘Managing unreasonable complainant conduct practice manual – 2^nd Edition’, NSW Ombudsman, May 2012, Chapter 2, 5.