How to deal with the querulant client By Kalyna Becker

HOW TO DEAL WITH THE ‘QUERULANT CLIENT’

KALYNA BECKER

Kalyna is one of a team of 30 students working at the Adelaide Law School’s free legal advice services as part of her final year law studies. These services provide important justice access avenues for those many people in our community who don’t qualify for legal aid and can’t afford a lawyer. Perhaps not surprisingly, some of those clients fall into the querulant category, and pose some interesting ethical and professional challenges for our clinics and our students, just as they do for all practitioners. This article looks at the issue of the querulant litigant from the lens of managing both the client, and their impact on the legal system.

Professional ethics and service obligations require that all clients are treated with respect, and as student advisors we actively listen and give legal consideration to their matters. But how do we manage these requirements when dealing with the chronic complainer, “querulant” client?

My interest in this topic was sparked while assisting a client who made a sweeping assertion that she had been “wronged” with little to no basis for the claim. The client had already visited several public agencies and offices to raise this issue, and after being told that the complaint was unsubstantiated on multiple occasions, she visited on of Adelaide Law School’s free legal advice services.

WHO IS A QUERULENT?

In law, a ‘querulent’ is a person who obsessively feels wronged. As a result, querulents pursue recourse by contacting public agencies and seeking legal advice in relation to petty issues. Australian psychiatrists, Paul Mullen and Grant Lester have described querulous behaviour as a:

…totally disproportionate investment of time and resources in grievances that grow steadily from the mundane to the grandiose…

These clients are characterised by:

…the unusually 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 claims.1

The client that I was assisting had a grievance with a utilities provider, and believed it was her “duty” to “seek justice” because she considered that she was not the only person being “robbed”. This logic is consistent with the literature which suggests that querulents often assert that their conduct is in the public interest rather than their own.2

From my experience, there are two key reasons why querulants frame their grievances as being in the public interest: 1. To justify the time, effort and personal sacrifice that the pursuit of their complaint requires. 2. To add legitimacy to their complaint.

According to literature on the topic the effort that querulents dedicate to their complaints is usually disproportionate to the merits of the complaint.

In the case of my client, she had already raised the issue with several agencies and public figures who declined to entertain the matter. In framing the issue as being in the public interest, I believe that the client was trying to augment her appeal for our help.

While I am cognisant of the danger in pathologising querulants, I do also think that their ‘public good’ excuse is symptomatic of the psychiatric diagnosis of querulous paranoia which has been characterised by .

…a relentless, persistent and single minded pursuit of justice for real or imaginary wrongs through complaint, claims, petitioning of authorities, litigation and sometimes threats and actual violence to self or others. It takes place over years. At the core is an incorrigible belief by the person that they have been victimised and that this is a typical example of the way they have been treated by the world.3

Another common characteristic of this condition is that querulants make an issue grander than it is by linking it to “natural justice” and rights-based legislation that is not necessarily relevant.

In their obsession they elevate their grievance to a point where it is no longer a legal issue but breach of human rights

or some other fundamental principle. As a consequence, they may often become indignant.

Unsurprisingly, querulants often end up in the court system. These individuals can pose a distinct challenge to the rule of law affecting the proper operation of the courts. Vexatious or unreasonable complainants also have the potential to absorb an enormous amount of public resources, time and money. 4

Querulants who abuse the process of the court and repeatedly purse proceedings without any reasonable grounds can be declared vexatious litigants. This declaration ultimately bans them from instituting new legal proceedings without leave of the Court.

While this legal remedy protects the Court, it does nothing for obsessive querulants whose pursuit of perceived injustices may continue to dominate and torment their existence.

Querulant clients should not however be dismissed as a legal nuisance. Individuals with querulant traits pose an equally great risk to themselves. Lester and Mullen have described querulant behaviour as a ‘downward spiral’ that often ends in unemployment, bankruptcy, divorce, and possibly domestic violence and suicide.5

A confronting example of this spiral was posited by the NSW Ombudsman6 who recounted the behaviour of ‘Mr M’ who appeared to follow the ‘downward spiral’ referred to by Mullen and Lester.7 This man’s drive for vindication resulted in unemployment, marriage breakdown, severe financial trauma and allegations of domestic violence. His obsessive behaviour not only prevented him from achieving the outcomes he was seeking but contributed to a loss of perspective about his substantive issue. Tragically, the man ended up taking his own life. This case is a bleak example of how individuals with querulant tendencies can suffer tragic outcomes.

While there is no cure or remedy for querulant paranoia, there are some helpful guides for law students or practitioners dealing with querulant clients: • Be aware of the signs of querulant behaviour: ○ This is an important step in being able to manage their complaints effectively and to ensure relevant support. ○ Dr Grant Lester suggests to look out for the ‘5 V’s’: • victimised; • voluminous; • vague communications; • variable demands; and • seeks vindication.8 • Do not act prematurely: ○ Just because you detect signs of querulant behaviour, it does not mean that the client does not have a legitimate claim. Listen and proceed as you would with any other client. • Manage expectations: ○ Unmet expectations are considered a primary trigger for querulants. By clearly highlighting the limitations of the service, the client will hopefully be able to set more reasonable expectations of you and the service. • Be respectful: ○ The complaints presented by the querulant can often appear outrageous or incomprehensible. It is paramount that you refrain from appearing judgmental or dismissive. This is not only for the benefit of the client, but also for your personal safety.

Querulant clients can be frustrating, problematic and a drain on time and resources. Before dismissing the client as a nuisance, it is important to remain calm and respectful while making a conscious effort to understand the root of the behaviour. My experience working in a free legal clinic made me realise that querulent clients are often deeply troubled; it is therefore critical to remain respectful but to also clearly set out the limitations of the service to not facilitate any grand expectations for the client. B

Endnotes 1 Grant Lester, Paul Mullen, ‘Unusually Persistent

Complainants’ (2004) British Journal of Psychiatry. 2 Ibid. 3 Grant Lester & Simon Smith ‘Inventor,

Entrepreneur, Rascal, Crank or Querulent?:

Australia’s Vexatious Litigant Sanction 75 Years

On’, (2006) Psychiatry, Psychology and Law, 13. 4 Justice J S Douglas, ‘Access to justice: problems of self-representation: the querulant litigant’ [Paper presented at the Rule of Law

Contemporary Issues Conference 2012,

Brisbane, 20 April 2012]. 5 Grant Lester, Paul Mullen, ‘Unusually Persistent

Complainants’, (2004) British Journal of Psychiatry 6 NSW Ombudsman, ‘Managing unreasonable complainant conduct’ (2012) <https:// www.ombudsman.gov.au/__data/assets/ pdf_file/0022/35617/GL_Unreasonable-

Complainant-Conduct-Manual-2012_LR.pdf> 7 Grant Lester, Paul Mullen, ‘Unusually Persistent

Complainants’, (2004) British Journal of Psychiatry. 8 Grant Lester, ‘Managing Unreasonable

Complainant Behaviour’ (2017) Straight Up 27.

Let’s close the super gap

ANDREW PROEBSTL, CHIEF EXECUTIVE, LEGALSUPER

It’s 2021 and Australia’s gender pay gap is stuck at around 15 per cent.1 despite laws promoting better gender equality and evolving attitudes, women are still often paid less than men.

The super gap is even greater than the pay gap. According to Industry Super Australia, on average, women retire with around half2 as much super as men.

In light of the theme for this year’s International Women’s Day (8 March 2021) being ‘Choose to Challenge’, it is timely to examine the super gap and challenge the factors that contribute to this inequity.

Why do women accumulate less super?

Structural and cultural biases and workplace barriers, in addition to the interrelated family, work and social factors, impact women’s ability to earn and accrue super for retirement. Some key factors include:

• Women earn less than men

This a significant contributor to the gender super gap. On average, men take home $25,6793 a year more than women. There are many contributing factors, including the gender pay gap.

This impact compounds over a lifetime.

• Unpaid work

Men are far less likely to take time out of the workforce for unpaid caring responsibilities - 95 per cent of primary carer’s leave is taken by mothers. Conversely, one in 20 fathers take such leave.4

Parenthood aside, women spend 64 per cent of their average working hours each week on unpaid work compared to 36 per cent for men.5

• Part-time roles

Women are more likely than men to work part-time or casually. Three in four part-time employees are female.6

• Return to workforce barriers

Women often face barriers to returning to work after taking a time out as carers.7 Whether due to limited opportunities or necessity, they may accept employment in roles below their skill level to balance caring and earning responsibilities.

Although compulsory superannuation has provided women with greater access to retirement savings, the current framework doesn’t address some particular challenges women face in the workplace. Some prominent examples are:

• The $450 monthly earning threshold

An employer is not required to pay super to an employee who earns less than $450 a month, is under 18, or domestic service employees working 30 hours or less per week.

Women make up the majority of the part-time and casual workforce; many also have multiple jobs, meaning they miss out on super payments from more than one employer.

• No Superannuation on paid parental leave

Unlike other leave types, the government paid parental leave scheme does not attract the superannuation guarantee. Many women miss out on crucial years of superannuation accumulation while supporting family.

PAST EXCLUSION FROM SUPERANNUATION IS STILL IMPACTING THE RETIREMENT SAVINGS OF WOMEN

Historically, super was largely available to public servants or senior management, but not everyone.

In 1974, less than 15 per cent8 of working women had super. In 1985, 24 per cent9 of working women had super.

It wasn’t until 1992, that compulsory super for everyone was introduced.

Over the years, there have been both direct and indirect discrimination against women in relation to retirement savings, exposing women, especially older generations, to reduced financial security.

While legislation making super compulsory for all was a great step forward, it is not until the Gen X (born 1965-1980) and Millennial generations (born 1981-1996) retire, that women will have been paid super for their entire career.

COMPOUNDING INEQUALITY

Compound interest makes super a powerful tool when saving up for life in retirement as interest is paid on both the principal and interest from past years: a bit like the snowball effect – over time you see exponential growth.

Using MoneySmart’s compound interest calculator, as an example:

If you were to deposit $20,000 back in 1985 (36 years ago – when super became available under Government awards10ix) with compounding interest, this deposit would be worth $115,836 today.

If you were to deposit $20,000 in 1992 (when super became compulsory for all), the $20,000 would be worth $82,323.

For the same principal amount of $20,000, an additional seven years of investment leads to a 40 per cent difference.11

Together with the favourable tax treatment afforded to super, compounding interest is one of the main reasons investing through your super for retirement is so powerful, and one of the many reasons why the super gap is so much bigger than the wage gap.

CONTRIBUTING SOONER RATHER THAN LATER

Compounding interest means the longer your money is invested – the more interest you make. Boosting your super, or your spouse’s super, is a way to help close the super gap.

For information about salary sacrifice, voluntary contributions, spouse contributions, and contribution splitting, visit our website: legalsuper.com.au/ growing-your-super.

OTHER LEVERS TO PULL

Working towards financial security for you and your family isn’t just about putting away money. There are other levers you can pull to optimise your super.

Understanding fees, account consolidation, making an investment choice, sorting your insurances and managing your beneficiaries, are some options.

FINANCIAL LITERACY

legalsuper is focused on empowering our members through education, enabling both women and men to better leverage super and have confidence in financial security.

To make the most of contributions, and optimise your super account, legalsuper is here to help. We have a national client service team able to meet with you 1-to-1 and offer tailored support.

OUR ROLE

legalsuper has a significant role to play in closing the super gap. Historically, legislation and policymaking has had the biggest impacts on women’s financial security in retirement.

legalsuper works closely with organisations who help us influence better outcomes for women. legalsuper is a member of Women In Super, a not-for-profit organisation. Through Women In Super, we advocate for a super system void of gender-based inequality, and this includes advocacy for topics such as: • removal of the $450 monthly earnings threshold; • superannuation and paid parental leave; • workplace gender equality; and • women on superannuation fund boards.

We also work with the Australian Council of Superannuation Investors (ACSI), which provides a collective voice and influence on Environmental, Social, and Governance (ESG) issues, including promoting gender diversity on the boards of ASX listed companies.

In addition, we have our own internal diversity policy to help us combat bias against women.

CHALLENGING THE SUPER GAP

legalsuper is here to empower all members to make choices leading to better outcomes in retirement. For women, we are working to close the super gap and increase the long-term financial security of our members, so that generations of women which follow us can achieve the same.

We’re here to help

If you’d like to meet with us to discuss your super, our team is available for 1-to-1 consultations, offering tailored information and support. Contact us via mail@legalsuper.com.au or on 1800 060 312, 8am-8pm (AEST), Monday to Friday to book an appointment.

Legal Super Pty Ltd ABN 37 004 455 789 is the Trustee of legalsuper ABN 60 346 078 879, AFSL 246315. This is general information and does not take into account your personal needs. Past performance is not a guide to future performance. B

Endnotes 1 https://www.wgea.gov.au/publications/ australias-gender-pay-gap-statistics 2 2018 https://www.industrysuper.com/media/ closing-the-gender-pay-gap-wont-close-the-supergap-new-analysis-of-abs-data-reveals/ 3 The Workplace Gender Equality Agency (WGEA) calculates the national gender pay gap using Australian Bureau of Statistics’ Full-Time

Adult Average Weekly Ordinary Time Earnings data from the Average Weekly Earnings survey (cat. no. 6302.0). 4 https://aifs.gov.au/aifs-conference/fathers-andparental-leave 5 WGEA (2016) Unpaid care work and the labour market (https://www.wgea.gov.au/publications/ unpaid-care-work-and-the-labour-market) 6 WGEA (2019), Agency reporting data (https:// data.wgea.gov.au/industries/1#gender_ comp_ content) 7 https://humanrights.gov.au/our-work/3-themeone-economic-independence-women-listeningtour-report#heading3_5 8 Parliament of Australia, Chronology of superannuation and retirement income in Australia https://www.aph.gov.au/About_Parliament/

Parliamentary_Departments/Parliamentary_

Library/pubs/BN/0910/ChronSuperannuation 9 Parliament of Australia, Economic Security for

Women in Retirement, Report Chapter 2 https:// www.aph.gov.au/Parliamentary_Business/

Committees/Senate/Economics/Economic_ security_for_women_in_retirement/Report/c02 10 Calculated on 12/02/21 https://moneysmart. gov.au/budgeting/compound-interest-calculator, using default assumptions – a 5% annual interest rate, shown in future dollars with no adjustment for inflation. Past performance is not a guide to future performance. 11 Andrew Proebstl is Chief Executive of legalsuper, Australia’s industry super fund for the legal community. He can be contacted on 03 9602 0101 or via aproebstl@legalsuper.com.au.