Ezekiel-Hart v Council of the Law Society of the Act
[2023] ACTCA 29
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Ezekiel-Hart v Council of the Law Society of the ACT |
Citation: | [2023] ACTCA 29 |
Hearing Date: | 7 September 2022 |
DecisionDate: | 6 July 2023 |
Before: | McCallum CJ |
Decision: | (1) In proceedings ACTCA 36 of 2022, the appeal is struck out as incompetent. (2) In proceedings ACTCA 41 of 2022, leave to appeal is refused. (3) In each proceeding, the applicant is to pay the respondent’s costs. |
Catchwords: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – Where single judge of the Court refused leave to appeal from a decision of the Appeal Tribunal of the ACT Civil and Administrative Tribunal – application for leave to appeal from the refusal of leave to appeal – whether proposed grounds of appeal identify any arguable error in the primary judgment |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT) s 86(4) Human Rights Commission Act 2005 (ACT) s 53E(2)(a) Supreme Court Act 1933 (ACT) s 37E(4) |
Cases Cited: | Complainant 201908 v Commissioner for Fair Trading (Discrimination) [2021] ACAT 2 Donohue v Volanne Pty Ltd (No 2) [2021] ACTCA 11 Tanious v NSW Land and Housing Corporation [2020] NSWCA 35 |
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 Numbers: | ACTCA 36 of 2022 ACTCA 41 of 2022 |
Decision under appeal: | Court: ACT Supreme Court Before: Mossop J Date of Decision: 24 June 2022 Case Title: Ezekiel-Hart v Council of the Law Society (No 2) Citation: [2022] ACTSC 146 Court File Number: SCA 41 of 2021 |
McCALLUM CJ:
Emmanuel Ezekiel-Hart filed a complaint of racial discrimination in the Human Rights Commission against the Council of the Law Society (the Council) alleging that it treated him unfavourably because of his race by delaying the granting of a practising certificate to him. Mr Ezekial-Hart contended, in short, that the Council delayed determining the application because he is a “black lawyer” whereas the Council granted practising certificates without delay to “white lawyers” who had been found guilty of professional misconduct or criminal offences.
The application for a practising certificate was ultimately refused by the Council. Mr Ezekiel-Hart nonetheless maintained the contention that the alleged delay in determining his application compared with those of white lawyers itself amounted to discrimination for which he was entitled to a remedy.
The Human Rights Commission concluded that the matter was unlikely to be resolved by conciliation and referred the complaint to the Australian Capital Territory Civil and Administrative Tribunal (ACAT). On the application of the Council, ACAT struck out the complaint as an abuse of process: Ezekiel-Hart v ACT Law Society (Discrimination) [2021] ACAT 29. An internal appeal to the Appeal Tribunal of ACAT was dismissed: Ezekiel‑Hart v Council of the Law Society of the Australian Capital Territory (Appeal) [2021] ACAT 116.
Mr Ezekiel-Hart appealed to the Supreme Court from the decision of the Appeal Tribunal. Such an appeal may be brought only with the Supreme Court’s leave: s 86(4) of the ACT Civil and Administrative Tribunal Act 2008 (ACT). Leave was refused by Mossop J: Ezekiel-Hart v Council of the Law Society (No 2) [2022] ACTSC 146.
Mr Ezekiel-Hart then filed a notice of appeal purporting to commence an appeal to the Court of Appeal from the decision of Mossop J. That appeal also faced a requirement for leave because the decision was interlocutory: s 37E(4) of the Supreme Court Act 1933 (ACT); Shammas v Canberra Institute of Technology [2013] ACTCA 50 at [30] (Neild J); Ezekiel-Hart v Reis [2019] ACTCA 31 at [1]-[2] (Mossop J).
Mr Ezekiel-Hart’s appeal (proceedings ACTCA 36 of 2022) was commenced irregularly as it was filed without leave of the Court. The respondent accordingly filed an application to have that appeal struck out as incompetent. Mr Ezekiel-Hart then filed an application for leave to appeal (proceedings ACTCA 41 of 2022). It is clear that, without leave, the initial appeal was incompetent and must be struck out. The focus of the hearing before me was the question whether the application for leave to appeal should be granted.
The application for leave to appeal was filed out of time but that was explained by reference to the erroneous commencement of an appeal without leave. The respondent accepted that the extension of time should follow the event.
I have concluded that the application is without merit and accordingly that leave to appeal must be refused. My reasons for that conclusion are as follows.
Principles to be applied
The principles to be applied in determining whether to grant leave to appeal from an interlocutory decision are well established.
In Donohue v Volanne Pty Ltd (No 2) [2021] ACTCA 11 at [13], Murrell CJ noted that, while there are “no rigid and exhaustive criteria”, the two “touchstones” for determining whether to grant leave against an interlocutory decision are whether the decision attended with sufficient doubt to warrant its being reconsidered and whether substantial injustice would result if leave was refused, supposing the decision to be wrong. The onus is on the applicant to satisfy the Court as to those matters.
In some instances, the type of decision will also be a factor weighing against granting leave, such as where an appeal against an interlocutory decision would delay or fragment the hearing of the proceedings.
In the present case, the refusal of leave by Mossop J had the effect of bringing Mr Ezekiel-Hart’s complaint of racial discrimination to an end. In that respect, the appeal is in the category of cases in which leave will more readily be granted than, for example, in a case involving an interlocutory decision on a matter of practice and procedure. Conversely, the determination by Mossop J whether to grant leave to appeal from the decision of the Appeal Tribunal involved the exercise of a discretion.
An appellate court should be cautious in granting leave to appeal from a judgment of a single judge refusing leave to appeal: Fasako Pty Ltd v TianyD Beauty & Hairdressing Australia Pty Ltd [2022] NSWCA 112 at [12] (White JA and Basten AJA). In that case, after discussing (without deciding) whether the determination of an application for leave to appeal “is properly classed as a matter of practice and procedure”, the Court said:
Nevertheless, it should be accepted that “even greater caution and restraint is justified on the part of appellate courts than that which is appropriate when considering applications for leave to appeal from interlocutory decisions ….”. The rationale behind this dictate is that articulated by Sir Frederick Jordan in In re The Will of FB Gilbert (dec). As Jordan CJ stated, it is appropriate to keep a “tight rein” on interlocutory appeals in matters of practice and procedure to avoid intolerable delays in the administration of justice.
At the same time, their Honours recognised that “there are procedural decisions and procedural decisions”: at [13]. I accept that the approach stated in Fasako might appropriately be moderated where, as already noted, the order of the primary judge refusing leave to appeal had the effect of bringing to an end the prosecution of the substantive complaint. In such a case the consideration that is likely to be determinative is the strength of any argument identifying error in the primary judgment: cf Tanious v NSW Land and Housing Corporation [2020] NSWCA 35 at [28] (Bell P and Simpson AJA).
The application before Mossop J
The application for leave to appeal determined by Mossop J specified 55 grounds of appeal. His Honour noted at [38] (with respect, correctly) that, as any appeal had to relate to a question of fact or law arising from the decision of the Appeal Tribunal, the merits of the appeal could appropriately be assessed by reference to the grounds of appeal articulated by the applicant. His Honour noted at [28] that a number of those grounds were “repetitive or argumentative” while others were new. He addressed the individual grounds to the extent necessary in determining whether to grant leave to appeal.
His Honour addressed the grounds by reference to the applicant’s central complaint as described by the Tribunal at [32]-[34] (reproduced at [15] of the Appeal Tribunal’s reasons and at [7] of the decision of Mossop J):
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.)
Mossop J further noted at [8] that the Tribunal had recorded at [36] that the basis of the claim included “extensive reiteration of past events that have been the subject of previous proceedings”.
The application before me
The draft notice of appeal before me specifies 17 grounds of appeal from the decision of Mossop J. As with the grounds considered by his Honour, those grounds involve a considerable measure of repetition.
Ground 1 is that the decision and orders made were “infected by error of fact and law”. As framed, this ground does not specify any error and may be taken to be a generic introduction to what follows.
Ground 2 is that his Honour erred “by failure to consider the case put before him”. The case referred to is the decision of ACAT in Complainant 201908 v Commissioner for Fair Trading (Discrimination) [2021] ACAT 2. That was a decision in which unlawful discrimination had been established and it was found that the applicant was entitled to redress, including for loss by way of hurt feelings and humiliation. The Tribunal accepted that an apology offered by the respondent was an appropriate remedy to address that loss: at [12]. Mr Ezekiel-Hart’s grounds before Mossop J included a ground asserting that the Tribunal “erred in finding that the effect of the applicant’s breached right must be ‘significant’ to ground a finding of discrimination”. It seems the point of citing the decision in Complainant 201908 was to support the argument that, even if Mr Ezekiel-Hart could establish no significant loss, he was still entitled to a remedy such as an apology.
There is no error in a Court failing to have regard, by way of precedent, to a decision of a Tribunal. In any event, addressing the substance of the point, Mossop J did not fail to have regard to the ground set out above. His Honour addressed that ground at [47] of his judgment as follows:
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.
There is no error in that analysis.
Ground 3 is that Mossop J was:
[B]ias [sic], actual and apprehended, proceeded with that bias, and misapprehended the fact and the law, and after finding miscarriage of justice stated at para 49 of the Decision that “Further, the decision of the Appeal Tribunal did not involve any other miscarriage of justice or other sufficient basis for a grant of leave.” At para 49 of the Decision; raising the question whether one miscarriage of justice is not enough to protect a Black person in the Australian Capital Territory
The allegation of bias was not elaborated upon except in the reference to the judgment of Mossop J at [49] where his Honour said that the Tribunal’s decision “did not involve any other miscarriage of justice” (emphasis added). There is no merit in this point, which is clearly based on a misreading of his Honour’s judgment. Justice Mossop did not find or implicitly countenance “one miscarriage of justice” against a Black person in the Australian Capital Territory. His Honour did not find any miscarriage of justice. He found no miscarriage of justice in the specific points raised and added, for completeness, that there was otherwise no miscarriage of justice.
Ground 4 is that his Honour:
[W]as in error and misapplied the law in that he misapprehended the facts and misdirected himself at para 48 and applied the legal principle in different circumstance other than the facts and circumstances that the Appellant raised the principle “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 the complaint is difficult to understand, it appears to repeat the point raised by ground 2. What Mossop J said at [48] about the decision of the High Court in Nobarani v Mariconte [2018] HCA 36; 265 CLR 236 was this:
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.
There is no error in that analysis.
Ground 5 is that:
His Honour misapprehended the facts and law at para 47 by finding in effect that a delay causing harm, disadvantage treatment, victimization and unfavourable treatment is not compensable and its effect does not have any significant loss, and failed to consider the victimization circumstances surrounding the delay which is prohibited by the Discrimination Act.
This ground misconceives what Mossop J said at [47], set out above. His Honour did not find that “a delay causing harm, disadvantage treatment, victimization and unfavourable treatment is not compensable”. His Honour’s words mean what they say. There is no merit in this ground.
Ground 6 is that:
The Decision below was in error in that it approve [sic] the erroneous finding at para 46 that “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” thereby limiting remedy under the Discrimination Act and Human Rights Commission Act, only to results that are above nominal damages in circumstance that nominal damages was given by the same Tribunal without ordering that he be issued with certificate in the case of COMPLAINANT 201908 v COMMISSIONER FOR FAIR TRADING (Discrimination) [2021] ACAT 2.
This ground repeats the points raised by grounds 2 and 3. It has no merit.
Ground 7 is that:
His Honour at para 45 diminished the effect of the authoring law and relegate it to no consequence where a new claim of discrimination is raised with continuing effect and a kernel of a case is found, provided the Respondent can say there is other avenue of redress and that previous repeated discrimination and victimization had been before the Tribunal unsuccessful, the new discrimination and victimization is of no consequence because section 32 of the ACAT Act overrides what the Discrimination Act sought to protect in society.
It is not clear what point is sought to be raised by this ground. It is enough to say that what Mossop J said at [45] of his judgment is plainly right.
Ground 8 is that:
His Honour misapprehended the facts and proceeded with that misapprehension to misinterpret section 4AA of the Discrimination Act and its effect and the effect of section 53E of the Human Right Commission Act. Para 43-44; raising the question whether where there is “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” and there is a kernel of a case established, whether such a case, will at the same time be frivolous or vexatious, lacking in substance, otherwise an abuse of process, to preclude the operation of the discrimination Act to prohibit the conduct so found.
As with ground 7, the point raised by this ground is unclear. It is directed to what Mossop J said at [45] which, as already indicated, is plainly right.
Ground 9 is that:
His Honour was in error by his failure to take the identified failure by the Appeal Tribunal to specifically address the submissions on issues 5(a)(i), 5(b)(iii), or 5(b)(iv) para 20, as a miscarriage of justice, to grant leave to appeal and determine the questions of law and facts that were not answered.
Mossop J recorded at [38] that none of Mr Ezekiel-Hart’s 55 grounds of appeal raised the failure by the Appeal Tribunal to specifically address the submissions on issues 5(a)(i), 5(b)(iii), or 5(b)(iv). As already noted, his Honour was correct to determine the application for leave by reference to the grounds of appeal as articulated. There can be no error in failing to address a ground not articulated in the notice of appeal. There is no merit in this ground.
Ground 10 is that:
His Honour misapproached [sic] the effect and application of s 53E(2)(a) of the HRC Act at para 40 by stating that “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” despite the finding of kernel of a case and similar case of COMPLAINANT 201908 v COMMISSIONER FOR FAIR TRADING (Discrimination) [2021] ACAT 2, which the same Tribunal member provided remedy for, albeit he was a Whiteman with criminal record; raising the question that whether the failure of the Appellant to obtain criminal record was a prohibition to him as a Blackman from obtaining remedy under the Discrimination Act and the HRC Act.
This ground is facetious. Mossop J said at [40]:
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.
That was an unexceptionable statement of the effect of s 53E(2)(a) of the Human Rights Commission Act 2005 (ACT) and a proper response to the issue identified. The suggestion that Mr Ezekiel-Hart’s failure to obtain criminal record is what prohibited him “as a Blackman” from obtaining a remedy is unwarranted.
Ground 11 is that:
His Honour was in error in finding at para 41 that “The difficulty for the applicant is that the discrimination or victimisation was identified as the delay in processing his application for a practising certificate” as a result the delay and its effect are inconsequential under the Discrimination Act and HRC Act.
This ground is based on an incomplete statement of Mossop J’s judgment at [41]. His Honour said:
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.
Mr Ezekiel-Hart’s proposed ground wholly fails to grapple with the point made, that the consequences of which he complained (inability to work and support his family) could not be attributed to the conduct of which he complained (delay) as opposed to the conduct which did not form part of the complaint (refusal to issue a practising certificate). There is no merit in this ground.
Ground 12 is that:
His honour misapprehended the facts para 42, and misdirected himself without understanding the evidence before the Tribunal showing admissions of the Respondents in the Supreme Court transcripts brought before the Tribunal, saying the Applicants claim was not abuse of process, that evidence was before the original Tribunal.
As with a number of other grounds, this ground misconceives what Mossop J said at [42]. His Honour said:
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.
It is clear from that passage that Mossop J did understand the evidence referred to. He simply rejected Mr Ezekiel-Hart’s submission based on that evidence. He was correct to do so.
Ground 13 is that:
Black Africans are hated everywhere without just cause as in this case even his Honour has used his discretional power to dispense with rules to enforce the hatred of unfavourable treatment and ensure Black African [sic] does not have justice provided by law, and has conducted himself as a lawyer of the Respondent on what the Respondent may need to bring to Court of Appeal in pre-empt of Appeal before the matter comes to appeal.
This ground is rhetorical. The assertions it makes are unfounded. It does not identify any error.
Ground 14 is that:
The Decision was contrary to public interest and raised questions of public interest and concerns which were not answered:
a)Whether the Tribunal’s decision and later the Supreme Court Decision to refuse leave institutionalized unfavourable treatment and discrimination of a Black person
b) Whether there is no remedy for a Black person under the discrimination Act given that remedy was provided to a White person similarly circumstanced by the same Tribunal in COMPLAINANT 201908 v COMMISSIONER FOR FAIR TRADING (Discrimination) [2021] ACAT 2
c) Whether the Appellant was discriminated against by the Respondent
d) Whether the Appellant was not victimized
This ground is repetitive and does not specify any identifiable error in the judgment of Mossop J.
Ground 15 was that:
[T]he court below fell into error by failure to consider an important case put by the Appellant, the case of COMPLAINANT 201908 v COMMISSIONER FOR FAIR TRADING (Discrimination) [2021] ACAT 2, presented to it, which is a compelling decision of the same tribunal member with different result yet the same circumstances, but affected differently people of different colour.
This ground is repetitive of ground 2 addressed above. It has no merit.
Ground 16 was that:
His Honours exercise of discretion after finding that the effect of the discrimination and victimization was continuous, was wrong and meant to punish the Appellant and oppress him for seeking protection from the court in a helpless situation, or it achieved an unintended result of perpetual alienation of the Appellant from the ACT with incessant punishment of discrimination and victimization for seeking his rights under the law.
This ground proceeds on an incorrect premise. Mossop J did not find that there was any discrimination or victimization of Mr Ezekiel-Hart, let alone any that was continuous.
Finally, Ground 17 was that:
The Appellant's incontrovertible facts and uncontested testimony and the abusive conduct of the Respondents including the finding of a kernel of a case, demonstrate that conclusions of the Court below are erroneous, and does not serve the interest of justice.
This is a rhetorical assertion. It does not identify any specific error in Mossop J’s decision.
Conclusion and orders
No error or appearance of error in the decision of Mossop J has been demonstrated.
Accordingly, I make the following orders:
(1)In proceedings ACTCA 36 of 2022, the appeal is struck out as incompetent.
(2)In proceedings ACTCA 41 of 2022, leave to appeal is refused.
(3)In each proceeding, the applicant is to pay the respondent’s costs.
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 6 July 2023 |
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