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

The applicant, Ezekiel-Hart, sought to appeal a decision of the Council for the Law Society of the ACT. The core of the dispute concerned the applicant's status as a vexatious litigant and the proper procedure for challenging a declaration made to that effect. The matter came before McCallum CJ of the Supreme Court of the ACT.

The primary legal issue before the Court was whether the applicant's notice of appeal, filed without seeking the requisite leave, was competent. Relatedly, the Court had to consider whether the applicant's true intention was to appeal the vexatious litigant declaration or to invoke the trial court's power to vary or revoke such a declaration, and if the former, whether the notice of appeal could be amended and referred to the Supreme Court for determination.

McCallum CJ reasoned that a notice of appeal filed without leave, where leave is required, is incompetent. The Court found that the applicant had not sought leave to appeal, and therefore, the appeal was fundamentally flawed. While acknowledging the applicant's potential intention to seek variation or revocation of the vexatious litigant declaration, the Court held that this did not cure the initial procedural defect in filing an incompetent appeal. The Court applied the principles governing appeals and the procedural rules concerning the requirement for leave to appeal.

Consequently, the Court ordered that the appeal be struck out as incompetent pursuant to subrule 5472(1) of the Court Procedures Rules. The appellant was also ordered to pay the respondents’ costs.