Ezekiel-Hart v Council of the Law Society (No 2)
[2022] ACTSC 146
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ezekiel-Hart v Council of the Law Society (No 2) | |
Citation: | [2022] ACTSC 146 | |
Hearing Dates: | 2 February 2022 and 28 April 2022 | |
DecisionDate: | 24 June 2022 | |
Before: | Mossop J | |
Decision: | The application for leave to appeal dated 15 December 2021 is dismissed with costs. | |
Catchwords: | APPEAL – PRACTICE AND PROCEDURE – Application for leave to appeal a decision of the Appeal Tribunal of the ACT Civil and Administrative Tribunal – grounds of appeal allege errors of fact and law – interpretation of the operation of s 53E of the Human Rights Commission Act 2005 (ACT) and the operation of s 4AA of the Discrimination Act 1991 (ACT) – prospects of appeal are so low that it is not a suitable case in which to grant leave – no miscarriage of justice or other sufficient basis to grant leave – application for leave to appeal dismissed with costs | |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 32, 86 Discrimination Act 1991 (ACT), s 4AA Legal Profession Act 2006 (ACT), s 81(1)(a) | |
Cases Cited: | Clarkson v Vincent De Paul Samaritan Services [2016] ACTSC 235 Coffey v Secretary, Department of Social Security [1999] FCA 375; 86 FCR 434 UBS AG v Tyne [2018] HCA 45; 265 CLR 77 | |
Parties: | Emmanuel Ezekiel-Hart ( Applicant) Council of the Law Society of the ACT ( Respondent) | |
Representation: | Counsel Self-represented ( Applicant) D Moujalli ( Respondent) | |
| Solicitors Self-represented ( Applicant) McInnes Wilson Lawyers ( Respondent) | ||
File Number: | SCA 41 of 2021 | |
Decision under appeal: | Court/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 | |
| Citation: | [2021] ACAT 116 | |
MOSSOP J:
Application
Mr Ezekiel-Hart (the applicant) has sought leave to appeal from a decision of the Appeal Tribunal of the Australian Capital Territory Civil and Administrative Tribunal (ACAT) pursuant to s 86 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). The respondent to that decision was the Council of the Law Society of the Australian Capital Territory (the respondent).
For the reasons that follow, the application must be dismissed.
The Tribunal at first instance
The complaint was first filed with the Human Rights Commission on 3 July 2020. The Commission concluded the matter was unlikely to be resolved by conciliation and at the complainant’s request, referred it to the ACAT under s 53A of the Human Rights Commission Act 2005 (ACT) (HRC Act).
The applicant sought remedies for unlawful discrimination in breach of the Discrimination Act 1991 (ACT), alleging that the respondent treated him unfavourably because of his race in that it had delayed the granting of a practising certificate to him. At the time that his complaint was made, his application for a practising certificate had not been determined. It was subsequently determined and a practising certificate refused. However, the Tribunal addressed the complaint that was made, namely the delay in determining his application for a certificate.
By interim application filed on 23 October 2020, the respondent sought to strike out the application and to prevent the applicant from commencing further proceedings against it without leave. This was an application pursuant to s 32 of the ACAT Act which provides:
32Dismissing or striking out applications
(1)This section applies if the tribunal considers that an application, or part of an application is––
(a)frivolous or vexatious; or
(b)lacking in substance; or
(c)otherwise an abuse of process; or
(d)made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.
(2)The tribunal may, by order, do 1 or more of the following:
(a)refuse to hear the application or part of the application;
(b)dismiss the application or part of the application;
(c)direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—
(i) within a stated period of time; or
(ii) without the leave of the tribunal.
NoteIf the application is for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005, the tribunal may also order the applicant to pay costs (see s 48 (2) (d)).
(3)The tribunal may make an order under subsection (2) on its own initiative or on application by a party.
(4)The tribunal may vary or revoke a direction given under subsection (2) (c)—
(a)on its own initiative; or
(b)on application by the person who is the subject of the order.
NoteThe tribunal must observe natural justice and procedural fairness (see s 7).
The application was heard on 11 December 2020 and a decision made on 12 April 2021: Ezekiel-Hart v ACT Law Society (Discrimination) [2021] ACAT 29 (Tribunal Reasons).
The Tribunal described the essence of the applicant’s complaint as follows:
32. The discrimination has most recently manifested, he alleges, in the respondent’s failure to decide the 2020 application within a reasonable period of time, or “…as at 1 July when the Law Society has given certificate to all other members, my own take longer to complete.”
33. As such, according to the complainant:
…the simple question is: did the law society treated me the plaintiff with distinction and unfavourably given their age long antecedents by issuing certificate to those found guilty of professional misconduct, criminal convictions, mental health and drug issues, and do so timely by 30 June 2020/ 1 July 2020 but refused me certificate on 1 July 2020 and provided no reason as at 3 July 2020 when the complaint was lodged? [errors in original]
34. The circumstances from which the complainant says this conclusion can be drawn are:
that they give certificates to those found guilty of professional misconduct. They give certificates to those found guilty of criminal conduct. They give certificate to those who have a drug abuse issues. They give certificate to those who have deported from other country … who have the bankruptcy issue.
…
[T]hey would consciously left my application unattended create a conduit in which they transfer me …from one person to the other until …I will lose all the employment. [errors in original]
(Footnotes omitted.)
However, the Tribunal recorded that the basis of the claim included “extensive reiteration of past events that have been the subject of previous proceedings”: Tribunal Reasons at [36]
The Tribunal first considered the respondent’s submission that the application involved an impermissible collateral attack upon the decision to refuse a practising certificate. That submission was developed by reference to the decision of the Federal Court in Coffey v Secretary, Department of Social Security [1999] FCA 375; 86 FCR 434. The Tribunal rejected the submission as it was not convinced that the right to bring a claim under the Discrimination Act should be excluded solely by the availability of alternative merit review proceedings in relation to the substantive application in another jurisdiction: Tribunal Reasons at [50].
The Tribunal went on to consider whether the proceedings were an abuse of process. The Tribunal found that the proceedings did constitute an abuse of process. The Tribunal found that the application was simply about the delay in reaching a conclusion about the merits of the application and hence it arguably contained a new matter that had not been the subject of previous litigation: Tribunal Reasons at [59]. However, the Tribunal found that an application may be an abuse of process if it is being used to “inflict injustice or unfairness” notwithstanding that the issues may not be precluded by res judicata or issue estoppel. The Tribunal was satisfied that this was such a case. That was because the applicant’s case in the Tribunal relied upon drawing an inference of racial discrimination based upon the surrounding circumstances, particularly the granting of unrestricted practising certificates to other applicants that had a variety of concerning or disqualifying characteristics. The applicant asked that consideration to be undertaken having regard to the past history between himself and the Law Society, namely, events that have been subject previous litigation which has been dismissed. The applicant did not agree with the outcome of those cases, but it was not open to him to continue to relitigate the proceedings in the hope of a different result. Such an attempt would be an abuse of process.
The Tribunal also decided that a pattern of repetitious litigation across jurisdictions may be an abuse of process, citing UBS AG v Tyne [2018] HCA 45; 265 CLR 77 at [59]. The Tribunal considered that the same principle applied in proceedings before it and the complainant should not be permitted to misuse Tribunal resources by commencing or continuing substantively similar litigation across jurisdictions, particularly in circumstances where there is a more appropriate process available to determine the substantive issue, namely whether or not the applicant should be granted an unrestricted practising certificate: Tribunal Reasons at [67].
The Tribunal was therefore satisfied that when viewed in the context of previous litigation the proceedings potentially amount to an abuse of process notwithstanding the statement by the Tribunal that “I can see a kernel of a case about the alleged influence of discrimination in the delay in reaching a decision”: at [68].
The Tribunal then went on to consider the issue of proportionality. It noted that the scope for the Tribunal to make remedial or compensatory orders was limited, that it could not make an order about granting the unrestricted practising certificate, that the decision on that issue had subsequently been made and hence the Tribunal could not make any orders about the process for that decision. The Tribunal said that there was no evidence or even a claim of significant loss arising from the delay: Tribunal Reasons at [70]. Those matters, in the context of the plethora of previous proceedings and the availability of means of reviewing the substantive decision meant that the present proceedings took on “the clear character of a proceeding that serves little purpose beyond vexing the respondent”: at [74].
Finally, the Tribunal referred to the allegations made by the applicant which involved allegations of malicious conduct by certain individuals within the Law Society. These were made without particularisation and “in occasionally extraordinary terms”: Tribunal Reasons at [75]. The Tribunal referred to the earlier decision of Refshauge J in Ezekiel‑Hart v The Law Society of the Australian Capital Territory [2012] ACTSC 103 at [133]-[134] and found that the Tribunal “should not be used as a forum to continue to vent such allegations, without proper particularisation or evidence”.
For that combination of reasons, the Tribunal was satisfied that the complaint should be struck out as an abuse of process.
The Tribunal then went on to deal with the claim for a vexatious litigant declaration and declined to make that declaration.
The proceedings were struck out.
The Appeal Tribunal
The applicant appealed from the decision of the Tribunal at first instance. The Appeal Tribunal, constituted by a presidential member and a senior member of the Tribunal heard the appeal on 27 September 2021 and gave its decision on 30 November 2021: Ezekiel‑Hart v Council of the Law Society of the Australian Capital Territory (Appeal) [2021] ACAT 116 (Appeal Reasons).
The Appeal Tribunal identified the principles relevant to appeals within the Tribunal and summarised the background to, history of and conclusions reached by the Original Tribunal.
In relation to the grounds of appeal, the Appeal Tribunal referred to the comment of McWilliam AsJ in another case relating to Mr Ezekiel-Hart that the applicant’s pleading was unintelligible or ambiguous. The Appeal Tribunal said that that matter was in substantially the same terms as the case before it where the applicant had filed an application and submissions totalling more than 1000 paragraphs. The Appeal Tribunal recorded that it had identified the matters upon which it had invited the parties to make oral submissions and set them out as follows (Appeal Reasons at [27]):
2. The appellant’s application of appeal filed 21 April 2021 contends, inter alia, the Tribunal in making the Original Decision misinterpreted section 53E of the Discrimination Act 1991 in dismissing a “Commission-initiated discrimination matter” without hearing the application.
…
5. In his Reply filed 18 August 2021 the appellant does, in part, engage with the task of identifying errors of fact, errors of law or discretionary errors as follows:
a. Errors of fact
i.At paras 87-88 the appellant contends that Tribunal made an error of fact in the Original Decision in not finding the impact of victimisation on him was real and continuing.
b. Errors of law
i.At paras 51-56 the Appellant contends the Tribunal’s decision in the Original Decision in finding his application an abuse of process was an error in law because it is inconsistent with the finding of the Supreme Court in Ezekiel-Hart v Council of the Law Society of the ACT & Anor [2021] ACTSC 133 which held that a related application was not an abuse of process.
ii.At paras 58-62 the appellant contends that Tribunal erred in law in the Original Decision in dismissing his application given section 53E of the Discrimination Act 1991 only requires a “kernel of a case” to establish discrimination.
iii.At paras 78-80 the appellant contends that Tribunal erred in law in the Original Decision in not taking any proper account of section 4AA of the Discrimination Act 1991, namely that whether or not the Appellant continues to suffer the effect of the discrimination is not a relevant factor.
iv.At paras 87-88 the appellant contends that Tribunal erred in law in the Original Decision in finding that the effect on the appellant's breached right must be significant to ground a finding of discrimination.
v.At paras 96-98 the Appellant contends that Tribunal erred in law in the Original Decision because it is inconsistent with the finding of the Supreme Court in Ezekiel-Hart v Council of the Law Society of the ACT & Anor [2021] ACTSC 133.
There were also some topics identified by reference to the heading “Discretionary errors”, but ultimately in his submissions, the applicant did not press these contentions and it is unnecessary to discuss them further.
The Appeal Tribunal referred to the fact that in various documents filed for the purposes of the appeal the appellant raised many additional issues, many of which were “unintelligible”: Appeal Reasons at [29]. It recorded that the Appeal Tribunal sought to focus the applicant’s attention on the matters which it had identified, but that this was not always successful and “[i]n the early part of his oral submissions much of what he said was incomprehensible”: [29].
The Appeal Tribunal then methodically recorded the submissions of the applicant on each of the topics that the Appeal Tribunal had identified and then recorded the submissions made by the respondent on those issues.
Under the heading “Consideration”, the Appeal Tribunal recorded that the applicant’s original complaint was clear – that the respondent’s delay in deciding his 2020 application for an unrestricted practising certificate had been because of discrimination due to race: Appeal Reasons at [59]. The Appeal Tribunal also recorded that the powers of the Original Tribunal under s 32(2) of the ACAT Act were clear. It then addressed issues 5(b)(i) and 5(b)(v). These related to the relationship between the decision of the Original Tribunal and the decision of McWilliam AsJ in Ezekiel-Hart v Council of the Law Society of the ACT & Anor [2021] ACTSC 133. The Appeal Tribunal pointed out that the Original Tribunal’s decision was delivered on 12 April 2021 whereas the Supreme Court decision was only delivered on 30 June 2021. The Appeal Tribunal rejected the appellant’s submissions that the Original Tribunal had been aware that the Supreme Court proceedings were not an abuse of process. The Appeal Tribunal identified that the two decisions (that of the Original Tribunal and that of the Supreme Court) related to substantively different matters. The Original Tribunal was dealing with the applicant’s complaint that the respondent’s delay in making a decision about his practising certificate was discriminatory, whereas the Supreme Court proceedings related to the decision not to issue the applicant with a certificate. It also pointed to the different powers available to the Original Tribunal and the Supreme Court.
The Appeal Tribunal then dealt with issues 2 and 5(b)(ii) which related to s 53E of the HRC Act. The errors asserted by the applicant were that it was not open to the Original Tribunal to dismiss his complaint without a hearing and, once the Tribunal had found “a kernel of a claim”, it was not open to dismiss the application. The Appeal Tribunal referred to the respondent’s contention that even if there was “a kernel of a case”, the loss or damage identified by the applicant related to the refusal of his practising certificate, not the delay on the part of the respondent in arriving at a decision.
The Appeal Tribunal did not expressly determine the competing submissions made in relation to issues 5(a)(i), 5(b)(iii) or 5(b)(iv).
At the conclusion of its reasons, the Appeal Tribunal referred to the right available under s 81(1)(a) of the Legal Profession Act 2006 (ACT) to appeal of the decision of the respondent to refuse a practising certificate and set out a portion of the transcript in which the applicant made statements which suggested that he would not pursue that course. The Appeal Tribunal urged him to “strongly consider” that course: Appeal Reasons at [67]. It concluded that “no errors of fact, law or discretion are demonstrated by any of the grounds raised by the appellant”: at [68].
The grounds of appeal
The Draft Notice of Appeal contained 55 grounds of appeal. A number of them simply repeated the issues identified by the Appeal Tribunal and the summary of the applicant’s submissions. Others raised new issues. A number of them were repetitive or argumentative. To the extent that it is necessary to do so, they will be addressed below when considering whether or not a grant of leave to appeal is appropriate.
Procedural history of the application for leave
The Application for Leave to Appeal dated 15 December 2021 named both the Attorney‑General of the Commonwealth and the Attorney-General of the ACT as respondents on “point of law”. Neither was a party to the proceedings below, and neither was identified as being the subject of orders sought in the Draft Notice of Appeal filed with the application for leave to appeal. On 2 February 2022, an order was made that the Attorneys-General were both removed as parties to the application for leave: Ezekiel‑Hart v Council of the Law Society [2022] ACTSC 11 at [9].
On 2 February 2022, the applicant indicated that he wished to rely on further documentary evidence not contained in the 122-page affidavit filed with the application for leave to appeal. He also indicated that he sought to adduce oral evidence from Mr Robert Reis, the professional standards manager for the respondent.
Counsel for the respondent made oral submissions. He read the affidavit of Ms Katie Binstock made on 18 January 2022 and tendered two folders which were exhibits to the affidavit, which became exhibit KEB1. This provided the relevant documentary history of the applicant’s claim in the proceedings in the Original Tribunal and Appeal Tribunal.
The applicant was then permitted to file additional evidentiary material and further written submissions. He tendered an additional tender bundle of 95 pages and some additional submissions.
At a further hearing on 28 April 2022, the applicant sought to call Mr Reis to give oral evidence. No affidavit of Mr Reis had been served. In those circumstances, the applicant requested leave to adduce evidence from him orally. Mr Reis had not given evidence in the Original Tribunal or the Appeal Tribunal. It was not explained how any evidence adduced would be relevant to the Court’s determination of the application for leave to appeal. In those circumstances, it was not appropriate to grant leave to adduce oral evidence from him.
In summary, the evidence before the court was:
(a)the applicant’s 122-page affidavit dated 15 December 2021;
(b)the bundle of 95 pages of documents which became exhibit 1; and
(c)the affidavit of Ms Binstock and its exhibits totalling 1365 pages.
At the hearing on 28 April 2022, the applicant made oral submissions, counsel for the respondent made brief submissions in reply and the decision was reserved.
Consideration and decision
The requirement to obtain leave to appeal is intended as a filter on appeal to this court: Eastman v Commissioner for Social Housing [2011] ACTCA 12; 252 FLR 278 at [58]; Clarkson v Vincent De Paul Samaritan Services [2016] ACTSC 235 at [85]; Hurst-Meyers v Aulich Civil Law Pty Ltd [2021] ACTSC 16 at [29]. The matters that may be relevant to a grant of leave are summarised in Pires v DibbsBarker Canberra Pty Ltd [2014] ACTSC 283 at [48]. Most relevant in the present case is whether or not there is a real or significant argument to be put that error exists.
The written and oral submissions made by the applicant were lengthy. Amongst his complaints were the following:
(a)A delay in issuing his practising certificate was due to impermissible discrimination on racial grounds. The applicant submitted that “white lawyers” found guilty of professional misconduct or criminal offences are granted certificates to practice as lawyers, while the respondent refused to grant him a certificate.
(b)The discrimination had been ongoing since the respondent first refused the applicant a practising certificate in 2008.
(c)The Tribunal terminated the claim without providing a right to a fair hearing, should not have terminated the claim after finding that there was a “kernel of a case” and therefore fell into error with respect to various human rights and other legislative provisions.
(d)The respondent acted recklessly in relation to dealings about the applicant’s practising certificate. Counsel for the respondent, while submitting that recklessness was irrelevant, indicated that an inadvertent admission of recklessness was made in the proceedings before the Supreme Court in SC 239 of 2020, but that an application would be made to withdraw that admission if those proceedings continued.
(e)The right of appeal under s 81(1)(a) of the Legal Profession Act does not diminish a person’s rights to seek redress for discrimination.
Given that any appeal must relate to a question of fact or law arising from the decision of the Appeal Tribunal, the merits of the appeal can appropriately be assessed by reference to the articulated grounds of appeal. Although the grounds of appeal were lengthy, many of them picked up the issues that had been identified by the Appeal Tribunal. For the purposes of this application, it is necessary to assess whether they identify sufficiently arguable grounds of appeal so as to, in the circumstances, warrant a grant of leave to appeal. None of the grounds of appeal raise the failure by the Appeal Tribunal to specifically address the submissions on issues 5(a)(i), 5 (b)(iii), or 5(b)(iv).
Addressed below are those grounds of appeal which pick up the issues distilled by the Appeal Tribunal.
Issue 2 (proposed ground of appeal 8): The applicant asserts that s 53E(2)(a) of the HRC Act “clearly states repeated discrimination should not be allowed”. He contends that “a hearing is necessary to make tribunal aware of the discrimination”. Therefore, he contends that the Original Tribunal erred in dismissing the complaint without a hearing. Section 53E(2)(a) simply permits the ACAT to make an order that the person complained about not repeat or continue the unlawful act. It does not compel there to be a hearing of a discrimination complaint or somehow qualify the power in s 32 of the ACAT Act.
Issue 5 (a)(i) (proposed ground of appeal 10) This ground asserts an error of fact in the decisions of the Original Tribunal and Appeal Tribunal by failing to find that “the impact of victimisation on him was real and continuing”. The submissions to the Appeal Tribunal which give rise to this issue assert long-term harm over 11 years, for example “the Appellant cannot work to feed himself well and his children without seeking help due to the failure of the Respondent to proper exercise discretion”. The difficulty for the applicant is that the discrimination or victimisation was identified as the delay in processing his application for a practising certificate. That application was ultimately processed and refused but the proceedings do not relate to that refusal. In those circumstances, it would plainly be difficult to attribute all of the challenges arising from the absence of a practising certificate to the period of delay in its determination. The Appeal Tribunal reached the same conclusion: Appeal Reasons at [48]. There is no reason to doubt its correctness.
Issue 5(b)(i) (proposed ground of appeal 12): This ground raises the alleged inconsistency between the finding of the Original Tribunal and the decision of McWilliam AsJ in Ezekiel-Hart v Council of the Law Society of the ACT & Anor [2021] ACTSC 133. The point made by the applicant is that the Supreme Court did not dismiss his proceedings but struck out the Statement of Claim and allowed him to replead. The Appeal Tribunal concluded that it was not an error of law for the Original Tribunal to proceed in a manner different to the Supreme Court. That conclusion is obviously correct having regard to the different jurisdictions, pleading rules and the different statutory context in which the decisions were made.
Issue 5 (b)(ii) (proposed ground of appeal 14): This ground asserts that s 53E of the HRC Act only requires a “kernel of a case” to establish discrimination and hear the matter. This arises from the reference by the Original Tribunal to the applicant having a “kernel of a case”. The expression used by the Original Tribunal is not a legal term of art although the use of a similar expression (“a solid kernel of conduct”) has been the source of error on the part of the Tribunal’s predecessor: see De Domenico v Marshall [1999] FCA 1305; 94 FCR 97 at [4], [25]. The Tribunal appears to have been making the point that there was a theoretical possibility that the chain of reasoning asserted by the applicant might be established. However, nothing in s 53E of the HRC Act compels the Tribunal to allow matters to go to a hearing if it is otherwise appropriate to dismiss them or strike out because they are frivolous or vexatious, lacking in substance, otherwise an abuse of process or made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.
Issue 5 (b)(iii) (proposed ground of appeal 17): This ground contends that the Original Tribunal and Appeal Tribunal erred in failing to take proper account of s 4AA of the Discrimination Act. That section provides:
4AA Interpretation beneficial to people with protected attributes
This Act must be interpreted in a way that is beneficial to a person who has a protected attribute, to the extent it is possible to do so consistently with—
(a) the objects of this Act; and
(b) human rights under the Human Rights Act 2004.
Note The Legislation Act, s 139 (1) (which is about interpreting legislation to be consistent with its purpose) and the Human Rights Act 2004, s 30 (which is about interpreting legislation to be consistent with human rights) are also relevant to interpreting territory laws.
The submission made to the Appeal Tribunal was that “if the discrimination alleged is having a continuing effect on him, which he says it is, the Original Tribunal should not dismiss it”. This misunderstands the operation of s 4AA of the Discrimination Act. The provision is one relating to interpretation of the provisions of the Act. No particular provision of the Act was identified as being subject to an interpretation in relation to which s 4AA made a difference in this case. Section 4AA does not apply to the interpretation of s 32 of the ACAT Act. The applicant’s assertion was that somehow s 4AA meant that the Original Tribunal was not entitled to consider whether or not the applicant continued to suffer the effect of any discrimination. The submissions did not explain how s 4AA achieved that result. Even though this ground was not specifically addressed by the Appeal Tribunal, it is without substance.
Issue 5 (b)(iv) (proposed ground of appeal 19): This ground asserts that the Original Tribunal erred in finding that the effect of the applicant’s breached right must be “significant” to ground a finding of discrimination. Although the ground of appeal and submissions did not identify the relevant portion of the Original Tribunal’s decision, the reference to the significance of any loss is in the Tribunal Reasons at [70]:
70. Even if the complainant was successful in his claim, the scope for the Tribunal to make remedial or compensatory orders in this matter is limited. As set out above, the Tribunal cannot make an order about the granting of the unrestricted practising certificate. It cannot determine any procedural flaws in the process, beyond the possible motivation for the delay. It cannot decide the preferable decision. It cannot even order that the decision be made more swiftly, as the matter has since been decided (albeit after the complainant made the complaint), and any such order would be otiose. There is no evidence, or even claim, of any significant loss, and the complainant was in any case ultimately denied the unrestricted practising certificate. There is no evidence or assertion of any loss at all. Even if successful, it is unlikely to result in any remedy beyond nominal damages for a minimal delay in a decision that was ultimately not in the complainant’s favour.
(Emphasis added.)
Contrary to the applicant’s contention, the Original Tribunal did not find that the loss needed to be significant in order to ground a finding of discrimination. Rather, in considering whether the proceedings amounted to an abuse of process, the Original Tribunal considered the issue of proportionality between the proceedings and the likely outcome. That was an additional factor that the Original Tribunal relied upon to reach the conclusion that it did. There was no error in the Original Tribunal taking into account the lack of any significant loss by reason of the period of delay on the part of the respondent.
Other grounds of appeal: Other proposed grounds of appeal (grounds 15, 20, 21, 35) also assert that “it is legally erroneous to conclude that rights of low monetary value cannot amount to a legal interest. Nobarani v Mariconte [2018] HCA 36… at 49”. While this is an accurate statement of what the High Court said in a different context, the assertion of this uncontroversial proposition does not demonstrate any arguable error on the part of the Appeal Tribunal. There was no error on the part of the Original Tribunal or the Appeal Tribunal in recognising the distinction between the substantive complaint of the applicant in relation to refusal of the practising certificate and the procedural complaint in relation to delay which was the subject of the proceedings before it.
It is unnecessary to address each of the remaining grounds of appeal for the purposes of this leave application. It is sufficient to note that, notwithstanding that some of the issues identified by the Appeal Tribunal were not specifically addressed by it, the remaining grounds of appeal do not alter the assessment that prospects of any appeal are so low that it is not a suitable case in which to grant leave to appeal. Further, the decision of the Appeal Tribunal did not involve any other miscarriage of justice or other sufficient basis for a grant of leave.
Orders
The application for leave to appeal must be refused. There is no reason why costs should not follow the event.
The order of the Court is: The application for leave to appeal dated 15 December 2021 is dismissed with costs.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop Associate: Date: 24 June 2022 |
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