Slipping on a shallot at Woolworths … Weighing the free speech rights of litigants in person to indulge in threatening correspondence with insurers for defendants … Courts and tribunals seeing a tide of over-wrought and menacing missives from angry parties … Judges feeling edgy  

Olga Day is suing after she slipped on a shallot in an Ipswich branch of Woolworths. She claims that she was distracted by an in-store product demonstrator who was promoting the anti-constipation elixir Metamucil. 

Her claim against Woolworths and the other defendants was filed shortly after she sued her former employer the Queensland University of Technology over what she says is an “incident” at work in 2013. 

Mrs Day says that Woolworths is negligent because it sold shallots tied together with rubber bands, which cuts “the top shoots off the shallots, resulting in spillages … through the gaps in shopping trolleys and baskets”. 

The plaintiff and her husband have been directly communicating with the insurers for the second and third defendants whereby, according to the judgment, on various occasions they have: 

Richard Morton, counsel for the second and third defendants in the slip litigation, told Douglas J that the plaintiff’s communications, as well as those of her husband, were made, on their face, in an attempt to menace, intimidate and harass Zurich in the conduct of the litigation. 

He said that the conduct could be likened to an intention to interfere with the administration of justice. 

The rules require solicitors in litigation to communicate only with solicitors for the other side and not with the opposing clients directly. However, this “no contact” rule does not apply to litigants in person. 

Mrs Day arrived from Russia in 1997 and is reported to have claimed asylum in Australia. Even though a litigant in person she is close to finishing a law degree and had worked at a law firm. 

She told the court that she had realistic prospects of success in establishing the allegations of professional misconduct, breach of directors’ duties and corrupt conduct. 

Justice Douglas said that he was not persuaded that Mrs Day’s claims about the solicitors acting for the parties insured by Zurich “deserves the criticism she levels at them” – but that is not something to be resolved at this stage. 

He added that the second and third defendants do not have an obvious propriety or personal right “not to be bombarded with aggressive letters” and would be unlikely to be entitled to injunctive relief. 

Nor would it be likely that they could get injunctive relief for any defamation, in the absence of exceptional circumstances. 

Olga Day gave an undertaking to stop contacting the other side while Douglas J obtained further submissions. 

In any event the judge, having not been satisfied that Mrs Day has demonstrated a clear public or private interest in continuing this campaign, ordered she be restrained from contacting Zurich Australian Insurance and various of its offshoots, its directors, officers, employees or agents. Any contact is to be through the company’s solicitors Mills Oakley. 

It was submitted that in this way Mrs Day’s free speech rights were not adversely affected. 

See: 
Olga Day v Woolworths Ltd, CPM Australia Pty Ltd and Retail Activation Pty Ltd  

While Mrs Day directed her attacks to the insurers and their solicitors, the courts are not strangers to angry correspondence from other litigants in person. 

There are a lot of people making threats. Parties in Family Court disputes are also spilling over into the defamation list and there are also websites created to denounce lawyers, judges and courtroom opponents. 

Feedback that Justinian hears from judges is of increasing frustration about their inability to get to grips with menacing outpourings. 

In McGuirk v University of NSW, Carolyn Simpson J described the correspondence from a former university employee as “voluminous and increasingly concerning. Some of it bizarre, some offensive, some threatening. In some instances it may well, and in others almost certainly does, amount to criminal conduct.” 

Relying on the Civil Procedure Act, she made orders for McGuirk to stop sending these attacks. 

The Court of Appeal, with (Sackville AJA leading the charge) came along and overturned that, saying there was no jurisdiction to make such an order. 

In NSW, therefore, the menacing letter business is roaring. 

There is also the current proceedings in Burns v Sunol, where threats have been made to members of the NSW Civil and Administrative Tribunal and implied threats against their families – published online.  

There was then an unsuccessful application for the tribunal members to recuse themselves on that basis and NCAT has asked the respondent to supply reasons why his conduct should not be referred to the Supreme Court for contempt.   

In the UK, 100 judges and magistrates reported receiving threatening correspondence between 2011 and 2015. 

The increased intimidation of the judiciary is attributed to the rise of the self-represented litigant, a direct result in legal aid cuts in family courts. 

In 2014-2015 alone, 7,000 knives were confiscated at UK crown courts and magistrates courts. 

Yet, it seems it is a tortuous and uncertain business for the courts to take a stand against this development.