Ezekiel-Hart v Council of the Law Society
[2022] ACTSC 11
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ezekiel-Hart v Council of the Law Society |
Citation: | [2022] ACTSC 11 |
Hearing Date: | 2 February 2022 |
DecisionDate: | 2 February 2022 |
Before: | Mossop J |
Decision: | See [9] |
Catchwords: | APPEAL – PRACTICE AND PROCEDURE – Application for leave to appeal a decision of the ACT Civil and Administrative Tribunal – Attorneys-General of the Commonwealth and ACT named as respondents – neither was a party to the proceedings below – applicant seeks to raise matters relating to the interpretation of Commonwealth and ACT law – court may order that a person be removed as a party to a proceeding if the person has been inappropriately or unnecessarily included as a party – appropriate to remove parties |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT), s 86 Australian Human Rights Commission Act 1986 (Cth) Judiciary Act 1903 (Cth), s 78B |
Parties: | Emmanuel Ezekiel-Hart ( Applicant) Council of the Law Society of the ACT (First Respondent) Attorney-General of the Commonwealth (Second Respondent) Attorney-General of the ACT (Third Respondent) |
Representation: | Counsel Self-represented ( Applicant) D Moujalli (First Respondent) T Giugni (Second Respondent) H Bowcock (Third Respondent) |
| Solicitors Self-represented ( Applicant) McInnes Wilson Lawyers (First Respondent) Australian Government Solicitor (Second Respondent) ACT Government Solicitor (Third Respondent) | |
File Number: | SCA 41 of 2021 |
Decision under appeal: | Tribunal: ACT Civil and Administrative Tribunal Before: Presidential Member Symons and Senior Member Foley Date of Decision: 30 November 2021 Case Title: Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory (Appeal) Citation: [2021] ACAT 116 |
MOSSOP J:
Introduction
Mr Ezekiel-Hart has sought leave to appeal from a decision of the appeal tribunal of the Australian Capital Territory Civil and Administrative Tribunal. The respondent below was the Council of the Law Society of the Australian Capital Territory.
The application for leave to appeal is made pursuant to s 86 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) and names as parties to the application the Attorney-General of the Commonwealth, identified as “Respondent on point of law,” and the Attorney-General of the ACT, identified as, ‘Respondent on point of law’. Neither of those persons was a party the proceedings below. Neither of them is identified as being the subject of the orders sought in the Draft Notice of Appeal that was filed with the application for leave to appeal.
Mr Ezekiel-Hart has identified that in the course of the application for leave to appeal, he may be making submissions about the operation of the Human Rights Act 2004 (ACT) and the Australian Human Rights Commission Act 1986 (Cth), as well as ss 109 and 117 of the Constitution (Cth). He has submitted that the two Attorneys-General ought to be parties to the proceedings so that they may make such submissions as are relevant on what he says are the issues, including issues of public policy, arising from the interpretation of that legislation.
Rule 5001 of the Court Procedures Rules2006 (ACT) picks up some, but not all, of the provisions of Ch 2 of the Court Procedures Rules in appellate proceedings. The applied civil rules, as defined in r 5001(3), include Div 2.4.3, which is entitled, ‘Changing parties’. That includes r 230, which is headed, ‘Removing parties,’ and provides that the court may order that a person be removed as a party to a proceeding if the person has been inappropriately or unnecessarily included as a party or has stopped being an appropriate or necessary party. Subrule (2) provides that the court may make an order under that rule at any stage of the proceedings and on application by a party to the proceedings or on its own initiative.
Mr Ezekiel-Hart has submitted that the appropriate course is to make procedural orders requiring the filing of applications by each of the two Attorneys, including written submissions, which would allow the elaboration of his position and the position of the Attorneys. I am told that there has been some correspondence sent from and received by Mr Ezekiel-Hart in relation to the position of the Attorneys-General.
It is clear from what Mr Ezekiel-Hart has said that he may wish to raise, during the course of his submissions, matters relating to the interpretation of both ACT and Commonwealth law, including matters involving the interpretation of the Constitution. The ACT Attorney‑General has a statutory right of intervention in certain circumstances, as well as a right of intervention in the event that a notice is given under s 78B of the Judiciary Act 1903 (Cth). The Commonwealth Attorney-General has a right of intervention if such a notice is given.
It is not appropriate at this stage to determine whether the matters said to involve the interpretation of the Constitution are reasonably arguable matters or are colourable assertions of the relevance of those provisions. However, I am satisfied at this stage, because neither of the Attorneys-General were parties to the proceedings below and no relief is sought against them in the Draft Notice of Appeal, that it is appropriate for the court to act on its own initiative so as to remove them as parties of the proceedings. They were, in my view, inappropriately and unnecessarily included as parties to the proceedings.
I do not consider it necessary, in order to reach that conclusion, to require or permit further written submissions by way of a timetable. That, in my view, would only serve to increase the costs borne by the named respondent Attorneys-General and would be very unlikely to contribute usefully to the resolution of the issues. If, at some stage later in the application, it emerges that either of those Attorneys are necessary parties, or as a result of constitutional or statutory arguments they wish to intervene, then those are issues which can be dealt with at that stage.
Finally, I say that the fact that the ACT Attorney-General has filed an unconditional Notice of Intention to Respond does not affect the conclusion that I have reached that it is appropriate that the Attorney be removed as a party. As a consequence, the order that I make at this stage is that the Attorney-General of the Commonwealth and the Attorney‑General of the ACT are both removed as parties to the application for leave to appeal dated 15 December 2021.
| I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 19 April 2022 |
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