Ezekiel-Hart v Council for the Law Society of the Act

[2024] ACTCA 2

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Ezekiel-Hart v Council for the Law Society of the ACT

Citation: 

[2024] ACTCA 2

Hearing Date: 

2 April 2024

Decision Date: 

3 April 2024

Before:

McCallum CJ

Decision: 

(1) that the appeal be struck out as incompetent pursuant to subrule 5472(1) of the Court Procedures Rules.

(2)    that the appellant pay the respondents’ costs.

Catchwords: 

CIVIL LAW – VEXATIOUS LITIGANT – where vexatious litigant filed a notice of appeal without seeking leave to appeal – consideration of the requirement for leave to appeal – where appellant did not intend to appeal but instead to invoke the power of the trial court to vary or revoke the vexatious litigant declaration – whether appropriate to permit the notice of appeal to be amended and referred to the Supreme Court

Legislation Cited: 

Supreme Court Act 1933 (ACT), ss 37E(4), 67A

Court Procedures Act 2004 (ACT), ss 67, 68

Court Procedures Rules 2006 (ACT), rr 5402, 5472(1)

Cases Cited: 

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175

Ezekiel-Hart v The Council of the Law Society of the ACT (No 7) [2024] ACTSC 12

Jorgensen v Wilson [2023] ACTCA 45

Southern Cross Oil v Fire and All Risks [1990] 21 NSWLR 200

Parties: 

Emmanuel Ezekiel-Hart ( Appellant)

The Council of the Law Society of the ACT ( First Respondent)

Robert Anthony Reis (Second Respondent)

Simone Carton (Third Respondent)

Farzana Choudhury (Fourth Respondent)

Katie Elizabeth Miriam Binstock (Fifth Respondent)

Samuel William Harper (Sixth Respondent)

The Attorney-General of the Australian Capital Territory (Seventh Respondent)

The Director of Public Prosecutions (ACT) (Eighth Respondent)

Commonwealth of Australia (As Represented by the Australian Federal Police (Ninth Respondent)

Representation: 

Counsel

Self-represented ( Appellant)

D A Moujalli (First to Sixth Respondents)

J Favalovo (Seventh to Eighth Respondents)

N O’Reilly (Ninth Respondent)

Solicitors

Self-represented ( Appellant)

Thomson Geer ( First to Sixth Respondents)

ACT Government Solicitor (Seventh and Eighth Defendants)

Minter Ellison (Ninth Defendant) 

File Number:

ACTCA 1 of 2024

Decision Under Appeal: 

Court/Tribunal:           ACT Supreme Court

Before:   Curtin AJ

Date of Decision:       2 February 2024

Case Title:                 Ezekiel-Hart v The Council of the Law

  Society of the ACT (No 7)

Citation: [2024] ACTSC 12

Court File Number(s): SC 139 of 2023

McCALLUM CJ:

1․On 2 February 2024, Curtin AJ declared Mr Emmanuel Ezekiel-Hart to be a vexatious litigant: Ezekiel-Hart v The Council of the Law Society of the ACT (No 7) [2024] ACTSC 12. The effect of such a declaration is to prohibit the person from instituting proceedings and, depending on the terms of the order, to stay any pending proceedings: see s 67A(3) of the Supreme Court Act 1933 (ACT).

2․On 8 February 2024, Mr Ezekiel-Hart filed a notice of appeal in the Court of Appeal. That document was in the approved form for commencement of an appeal prescribed in r 5402 of the Court Procedures Rules 2006, being form 5.11. However, it described the proceeding as an “appeal” under s 67A(13) and quoted what was then that section (now renumbered s 67A(11)). That section provides:

Notwithstanding subsection (3), a person declared to be a vexatious litigant may, without the leave of the court, apply to the court for the revocation or variation of the declaration or of any conditions to which the declaration is subject.

3․After setting out the orders made by Curtin AJ, the notice of appeal proceeded to state, at paragraph 2, “the appellant appeals from order (4)” and, at paragraph 3, “the appellant appeals from all the orders of the Honourable Acting Justice Curtin.”  It stated that the appellant would seek to put further evidence before the court, which reflected a requirement of the rules concerning appeals, and then set out a series of “grounds of appeal”, most of which assert errors in the decision as at the time it was made.

4․If Mr Ezekiel-Hart had intended to commence an appeal, he would have faced at least one requirement for leave. That is because it is uncontroversial that the declaration that he is a vexatious litigant is interlocutory. Pursuant to s 37E(4) of the Supreme Court Act, an appeal may be brought against an interlocutory order only with the leave of the Court of Appeal.  No leave has been sought or granted in this case.

5․It has also been held that such an appeal faces a separate requirement for leave under s 67A(3) and, furthermore, that the required application for leave to appeal itself requires leave, that is, that Mr Ezekiel-Hart ought to have filed an application as a vexatious litigant for leave under s 67A(3)(a) to institute an application for leave to appeal. So held Curtin AJ in unrelated vexatious litigation proceedings in the matter of Jorgensen v Wilson [2023] ACTCA 45.

6․In that decision, his Honour undertook a careful analysis of the legislation and authorities on that issue in other jurisdictions.  In a reasoned judgment, his Honour concluded:

(a)that a person declared to be a vexatious litigant under s 67A of the Supreme Court Act requires leave to appeal (because an appeal falls within the definition of “proceedings” in s 67A) (at [206]);

(b)putting aside that conclusion, that an order declaring a person a vexatious litigant pursuant to s 67A is an interlocutory order from which leave to appeal is required (at [210]); and

(c)that it is first necessary for a person who has been declared to be a vexatious litigant to seek and obtain leave pursuant to s 67A(5)(a) of the Supreme Court Act before even bringing an application for leave to appeal (at [228]).

7․However, his Honour did note the following at [49] of the decision:

…I should note that perhaps my reasons and conclusions on this point should be read with a degree of caution because there was no active proponent or contradictor in relation to the view I ultimately took, and was therefore reached without the benefit of assistance from the parties.

8․It is not necessary to consider the correctness of that aspect of his Honour’s decision in Jorgensen v Wilson in the present case. That is because Mr Ezekiel Hart made plain at the hearing yesterday that it was his intention not to appeal but to seek to have the order revoked or varied, as allowed under s 67A(11).

9․The respondents to the notice of appeal foreshadowed an application to have the appeal dismissed as incompetent. In response to that correspondence, Mr Ezekiel-Hart wrote confirming, as indicated on the cover sheet of the notice of appeal, that he did not require leave because the intention was to invoke the Court's power under s 67A(11). That section (set out above) does not impose any requirement for leave of the Court.

10․Conversely, however, it does not create a right of appeal. Different functions and processes are contemplated by the right under s 67A(11) to apply for the revocation or variation of a vexatious litigant declaration and the right of appeal under the general appeal power in s 37. An appeal proper, which is by way of rehearing, focuses on the correctness of a decision as at the time the order was made. Section 67A on the other hand provides for consideration of the ongoing appropriateness of an order or its conditions at the time any application is brought.

11․In any event, having regard to Mr Ezekiel-Hart’s clear indication by way of response to the objection to the competence of the appeal that he did not require leave to appeal because he was invoking the power of the court under s 67, I gave Mr Ezekiel-Hart an opportunity to consider his position overnight. This morning, he confirmed that he does indeed intend to invoke s 67A(11). In a careful written submission, Mr Ezekiel-Hart submitted, however, that under the provisions of ss 67 and 68 of the Court Procedures Act and relying on the decision of the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175, the Court may refer the matter to be determined in the Supreme Court or else grant leave to him to amend his notice of appeal and refer it to the Supreme Court for determination.

12․The issue for determination by me accordingly became not whether any of the requirements for leave to appeal to which I have referred applies to the present case.  Indeed, I understood Mr Ezekiel-Hart to accept that at least the requirement for leave to appeal from an interlocutory ruling would have applied, had it been his intention to appeal from the decision of Curtin AJ.

13․Instead, the issue became whether it is permissible and appropriate to allow the proceeding he has instituted in the manner I have explained to proceed instead as an application to the Supreme Court under s 67A(11) of the Supreme Court Act to revoke or vary the declaration that he is a vexatious litigant by the process he has filed to date.

14․I do not think it is appropriate to permit that course.  First, it is axiomatic that, where a right of appeal carries or faces a requirement for leave, the appeal is incompetent if leave has not been sought or granted.  The proper order in such a case is for the incompetent proceeding to be struck out: see Southern Cross Oil v Fire and All Risks [1990] 21 NSWLR 200 per Handley JA. To allow the proceeding instead to continue under another guise does not sit comfortably with that requirement.

15․Secondly, the same point was considered and determined (in my respectful opinion, correctly) by Curtin AJ in Jorgensen v Wilson at [248] where his Honour said, evidently in response to a similar submission by Mr Jorgensen:

Rule 1450 of the Rules says that a failure to comply with the rules in relation to a proceeding is an irregularity and does not make the proceeding or a document, step taken or order made in a proceedings void. However, Mr Jorgensen did not simply (if there is such a thing) not comply with the rules, he failed to seek the leave required by statute, namely section 67A(5).

16․While his Honour was there referring to a different leave requirement, the point is the same. 

17․Thirdly, as submitted by Mr Moujalli on behalf of the first to sixth respondents to the purported appeal, a question of procedural fairness arises. As I have explained, the document that has been filed is very much in the nature of a notice of appeal contending a series of errors in the judgment of Curtin AJ. It is not framed, and cannot readily be reframed, as an application invoking the power under s 67A(11).

18․While the parameters of the Court’s power under that provision are unclear (and need not be determined for the purposes of the present application), it may at least be accepted that the power is concerned with the ongoing appropriateness of an order once made rather than the correctness of the order as at the time it was made. 

19․For those reasons, I order:

(1)that the appeal be struck out as incompetent pursuant to subrule 5472(1) of the Court Procedures Rules.

[discussion ensued as to costs]

20․Mr Ezekiel-Hart resists an order for costs against him, having been unsuccessful in the determination of the application.  First, he notes that costs are in the discretion of the Court.  So much may be accepted. 

21․Secondly, he has submitted that the fact that a party is unsuccessful does not necessarily mean that that party should bear the other party’s costs.  Conversely, however, it may be accepted as axiomatic that costs ordinarily follow the event.  In my assessment, the determination of the application in favour of the respondents reflects the relevant event, that is, that Mr Ezekiel Hart ought not to have commenced an appeal having regard to the position he has taken in the present application.  Having had that appeal struck out as incompetent, he ought to pay the respondents’ costs.

22․For those reasons, I order:

(2)that the appellant pay the respondents' costs.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum.

Associate:

Date: