Ezekiel-Hart v Council of the Law Society of the Act
[2023] ACTCA 5
•13 February 2023
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 5 |
Hearing Date: | 1 February 2023 |
DecisionDate: | 13 February 2023 |
Before: | Berman AJ |
Decision: | (1) The application for leave to appeal is refused. (2) The applicant is to pay the costs of the respondents. |
Catchwords: | COURT OF APPEAL – Application for leave to appeal from interlocutory judgments – leave to appeal against summary dismissal – whether the primary decision is attended with sufficient doubt to warrant it being reconsidered – whether substantial injustice would result if leave was refused – leave to appeal refused |
Legislation Cited: | Supreme Court Act 1933 (ACT) s 37E Court Procedures Rules 2006 (ACT) rr 406, 425, 1147, 1148 |
Cases Cited: | Clark v Attorney General for New South Wales (No. 2) [2023] NSWCA 3 |
Parties: | Emmanuel Tam Ezekiel-Hart (Applicant) Council of the Law Society of the ACT (First Respondent) The President of the Law Society of the ACT (Second Respondent) |
Representation: | Counsel Self-represented (Applicant) D Moujalli (Respondents) |
| Solicitors Self-represented (Applicant) Thomson Geer (Respondents) | |
File Number: | ACTCA 62 of 2022 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Kennett J Date of Decision: 3 November 2022 Case Title: Ezekiel-Hart v Council o the Law Society of the ACT (No 3) Citation: [2022] ACTSC 300 |
Berman AJ:
Introduction
1․On 3 November 2022, Kennett J made a number of orders in proceedings commenced by Emmanuel Tam Ezekiel-Hart (the applicant) against the Council of the Law Society of the ACT and its President (the respondents): he dismissed an application for summary judgment by the applicant; he struck out a further amended statement of claim (FASC) filed by the applicant; he granted leave to the defendants, the present respondents, to apply for the proceedings to be summarily dismissed; and he dismissed the proceedings. The applicant now seeks leave to appeal to the Court of Appeal against those orders. Leave is required because the orders were interlocutory in nature: see section 37E(4) of the Supreme Court Act1933.
2․Before proceeding further, one remarkable feature of these proceedings should be noted. As I understand it, the applicant’s ultimate complaint is that he was not granted a practising certificate entitling him to practise as a lawyer for the 2020 – 2021 practising year. His submissions, both in writing and made orally to me, repeatedly asserted his desire to be able to practise law and support his family. However even if the proceedings he attempted to bring were successful, such success would not entitle him to practise law in the future because, obviously, a practising certificate for the year 2020 – 2021 would not allow him to practise after the expiry of that practising year. The proceedings which Kennett J brought to an end on 3 November 2022 would not have determined whether the applicant should be given a practising certificate enabling him to practise in the future.
3․Furthermore, and equally remarkably, there is nothing to prevent the applicant from making an application for a practising certificate for the current, or any future, practising years.
4․I mention this matter at the outset of my judgment because, even if I were satisfied that it was arguable that the orders made by Kennett J were wrong, I would nevertheless have dismissed this application because of its futility. No injustice would be visited upon the applicant even if the decision of Kennett J was wrong.
5․This is not to suggest that I have come to the conclusion that there is a possibility that the judgment of Kennett J is in error in any way. His Honour’s orders were clearly correct as I shall explain.
The history of the proceedings
6․These proceedings were commenced in the Supreme Court on 3 July 2020, but litigation between the present parties, as his Honour noted, dates back to 2009.
7․The somewhat tortuous history of the litigation is summarised by Mossop J in an earlier judgment in this proceeding (Ezekiel-Hart v Council of the Law Society of the ACT (No 2) [2022] ACTSC 29) and by Kennett J in the judgment from which this application is brought (Ezekiel-Hart v Council of the Law Society of the ACT (No 3) [2022] ACTSC 300). What follows is a summary of those summaries.
8․Sometime in 2020 the applicant was told that his application for a practising certificate had been referred to the Council of the Law Society. Later the Council did decide not to grant a practising certificate to him, but before that happened the applicant filed a 10-page statement of claim on 3 July 2020. On the application of the respondents pursuant to r 425 of the Court Procedures Rules 2006 (ACT) (Court Procedures Rules), that statement of claim was struck out by McWilliam AsJ on 30 June 2021: see Ezekiel-Hart v Council of the Law Society of the ACT [2021] ACTSC 133.
9․Her Honour said this about the statement of claim:
80. First and foremost, the structure of the pleading is embarrassing, … It contains rolled up allegations and language that is confusing, so that there are parts that are unintelligible and ambiguities that make it difficult for the defendants and the Court to understand the real substance of the claim…
10․On 28 July 2021, the applicant filed an amended statement of claim this being one of 64 pages. The respondents filed a defence but also sought particulars of the amended statement of claim from the applicant as well as an outline of the nature of the evidence on which he intended to rely. In response the applicant filed a “reply” of 50 pages.
11․On the application of the respondents, Mossop J struck out wholly or in part 18 paragraphs of the amended statement of claim and 84 paragraphs of the reply (which his Honour described as a “supplementary statement of claim”. His Honour allowed the applicant one more opportunity to file a proper statement of claim (see [70] of the judgment) and so granted leave to the applicant to file a further amended statement of claim within 28 days: see Ezekiel-Hart v Council of the Law Society of the ACT (No 2) [2022] ACTSC 29.
12․In his judgment Mossop J said this:
69.So far as the substance of the application is concerned, I accept the submissions made by the defendants. They are entitled to have serious allegations properly pleaded and particularised. The fact that the plaintiff asserts malice or lies on numerous occasions and does so without apparent recognition of the gravity of the allegations and the need for precision in such applications should not lead the court to treat them in the same manner. If such allegations are to be made, then the rules and fairness to the defendants requires that they be properly pleaded and particularised. The plaintiff has had an opportunity to remedy the defects in his pleading through the provision of particulars. He has attempted to do that through the terms of his Reply. A Reply is not an appropriate vehicle for remedying defects in the Statement of Claim through the provision of additional particulars. However, leaving that aside, the Reply is of such a length and so lacking in coherent structure that it does not, as a matter of substance, fulfil the requirement to particularise the claims of dishonesty, lying etc. The defendants should not be required to hunt through such an incoherent document searching for what might be particulars of grave allegations. They are entitled to have a matter properly pleaded in accordance with the rules.
70.Although the challenged paragraphs are to be struck out, the plaintiff should have one more opportunity to properly plead his claim and hence leave will be given to file an Amended Statement of Claim if he wishes to.
13․A further amended statement of claim was filed on 23 March 2022. This was a document containing 239 paragraphs. One of those paragraphs had 323 sub paragraphs. A defence was filed on 22 April 2022.
14․Ultimately, in the proceedings before Kennett J, the respondents sought a number of orders, including the striking out of the further amended statement of claim pursuant to r 425(1)(b), (c) and (d) of the Court Procedures Rules, leave to apply for the proceedings to be summarily dismissed pursuant to r 1148(2), and the summary dismissal of the proceedings pursuant to r 1147(2). The applicant too sought summary judgment in his favour. As noted at the beginning of these remarks Kennett J granted the respondent’s applications and dismissed the applicant’s.
15․It is from those orders that the applicant now seeks leave to appeal to the Court of Appeal.
Draft Grounds of Appeal
16․Ordinarily in a judgment of this kind it is appropriate to reproduce the proposed grounds of appeal. However in this case there are 61 such grounds, none of which address the fundamental question which the applicant would have to confront if leave to appeal were granted – the adequacy of his FASC.
17․The orders he would seek if I granted leave to appeal are these:
(a)An order quashing or setting aside the orders of the Court below;
(b)Cost order against the Respondent
(c)Declaration that the Appellant was treated with distinction
(d)Declaration that the Appellant was victimised and discriminated against
(e)Declaration that the Appellant was treated unfavourable with unconscionable, misleading and deceptive conduct and caused him disability
(f)Order for Respondent to pay damages and including exemplary damages for conduct that creates apathy and bring disrepute to the legal system
(g)Any other order that the Court deemed fit to make justice paramount between the parties, and avoid waste of time and resources
Legal Principles
18․The matters that I should consider in deciding whether to grant the applicant leave are not in doubt. Before me the respondents referred, without complaint from the applicant, to the judgment of Murrell CJ in Donohue v Volanne Pty Ltd (No 2) [2021] ACTCA 11 at [13]-[14] where her Honour said:
13. Although there are no rigid and exhaustive criteria which govern the exercise of the discretion to refuse or grant leave to appeal from an interlocutory decision, there are two touchstones:
(a) Is the decision attended with sufficient doubt to warrant its being reconsidered?
(b) Would substantial injustice result if leave was refused, supposing the decision to be wrong?
See Re an application for leave to appeal by Insurance Australia Ltd [2017] ACTCA 57 at [10], Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9; 2 ACTLR 44 (Capital Property), More Than a Morsel Pty Ltd v Dean [2003] ACTCA 9 at [4].
14. The onus lies upon the party who applies for leave to satisfy the Court of Appeal of those factors.
19․I turn therefore to the question as to whether the decision below was attended with sufficient doubt to warrant its being reconsidered.
The order striking out the Further Amended Statement of Claim (FASC)
20․I have to note that nowhere in the applicant’s written submissions, affidavits (which were replete with argument) nor in his oral argument did the applicant come to terms with the need to demonstrate arguable error on the part of Kennett J when his Honour ordered the striking out the FASC.
21․The issue before his Honour was whether the FASC complied with the rules. No argument was addressed to me by the applicant in his written or oral submissions with reference to any of the relevant rules, or indeed any rule at all – (apart that is from an irrelevant reference to rule 200 “Including Causes of Action”).
22․Kennett J described the FASC as follows:
23.… the FASC presents as a document drafted and settled by a person who has at best a tenuous grasp of legal principle and principles of pleading, and who has such strong opinions about the subject matter as to be incapable of any degree of detachment. It is convoluted, repetitive and conclusory. To the extent that it identifies specific facts it does not proceed chronologically, and often does not identify the date of the event or document that is being referred to. It refers to alleged “admissions” without identifying when or how they were made, or properly identifying their content. It makes no separation between allegations of fact and more or less sweeping conclusions (often of bad faith and sometimes of outright dishonesty) based—although it is hard to be sure—on those facts.
23․His Honour also noted a striking feature of the FASC, namely that it included within it those paragraphs from the ASC which had been struck out earlier by Mossop J, even to the extent of being identically numbered.
24․The FASC was further described by Kennett J in this way:
32.Which of the so-called particulars go to which allegations in the FASC remains a mystery. The mystery becomes no clearer when it is observed that the 323 so-called particulars are repeated as particulars to several of the other paragraphs that were struck out by Mossop J but reappear in the FASC.
33.Further, as counsel for the defendants observed, many if not most of the so-called particulars are not in truth particulars of allegations in the FASC. They are further, or overlapping, allegations of fraud of various kinds (some involving allegations against persons not named in substantive paragraphs of the pleading). Many are conclusory or completely unspecific as to when and in what way the alleged acts of dishonesty occurred.
34.Moving beyond the paragraphs that were struck out by Mossop J, the general features of the FASC that I have noted above indicate that it should be struck out. Manifestly, the FASC does not—as r 406(1)(b) of the Rules requires—contain “a statement in a summary form of the material facts on which the party relies”; rather, it is shot through with conclusory statements whose factual foundations are elusive. Causes of action are identified, but the facts said to establish the elements of those causes of action are not identified with any clarity if they are identified at all. To take but one example, negligence appears to be asserted (at paragraphs 166–177); but it is impossible to identify the facts that are said to establish a duty of care or the precise facts said to constitute a breach of that duty. While the relief sought can be identified (cf r 406(1)(d)), the connection between that relief and particular causes of action said to arise from the facts pleaded is also unclear.
35.The FASC does not perform what was identified in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; 33 WAR 82 at [4] as basic functions of a pleading:
the definition of the issues to be determined in the case and enabling assessment of whether they give rise to an arguable cause of action or defence as the case may be, and apprising the other parties to the proceedings of the case that they have to meet.
25․At the risk of repetition, the respondent identified 10 problems which Kennett J had regard to in deciding whether to strike out the FASC. Taken from the respondents’ written submissions in the present application they were:
In determining whether to exercise his discretion pursuant to rule 425(1)(b), (c) and/or (d) of the Rules to strike out the FASOC, his Honour had regard to the following features of the FASOC:
(a)it contains 239 paragraphs spread over 99 pages: Primary Judgment [22];
(b)it is “convoluted, repetitive and conclusory”: Primary Judgment [23];
(c)it often does not identify the date of the event or document that is being referred to: Primary Judgment [23];
(d)it refers to alleged “admissions” without identifying when or how they were made, or properly identifying their content: Primary Judgment [23];
(e)it “makes no separation between allegations of fact and more or less sweeping conclusions”: Primary Judgment [23];
(f)it includes all of the paragraphs of the ASOC that were struck out by Mossop J, identically numbered and worded: Primary Judgment [26];
(g)paragraph 15 is sub-joined with 323 numbered propositions as “so-called particulars”, however, “which of the so-called particulars go to which allegations in the FASOC remains a mystery”: Primary Judgment [32];
(h)the so-called particulars in paragraph 15 make “further, or overlapping, allegations of fraud of various kinds”: Primary Judgment [33];
(i)many of the so-called particulars in paragraph 15 are “conclusionary or completely unspecific as to when and in what way the alleged acts of dishonesty occurred”: Primary Judgment [33]; and
(j)facts said to establish the elements of causes of action asserted in the FASOC are “not identified with any clarity if they are identified at all”: Primary Judgment [34]
26․I have taken these from the respondent’s submissions to demonstrate that the applicant was on notice as to the problems Kennett J identified with his FASC. Despite this the applicant failed to try, much less demonstrate, that Kennett J’s descriptions were wrong.
27․In the absence of any attempt by the applicant to persuade me that any of the problems with the FASC by Kennett J were in any way erroneous. I have little hesitation in accepting that they are accurate. They completely accord with my assessment of the FASC.
28․His Honour’s conclusion on this issue was this:
36.I am satisfied, therefore, that the FASC is liable to be struck out under any or all of r 425(1)(b), (c) or (d) of the Rules and that it should be struck out. It would tend to prejudice, embarrass or delay the fair trial of the proceeding; it is scandalous or vexatious and contains unnecessary material; and it is an abuse of the process of the Court.
29․His Honour’s conclusion was undoubtedly correct and no argument was addressed to me by the applicant to the contrary. Indeed given the problems with the FASC referred to above it is impossible to contemplate any sensible argument being put that the FASC complied with the rules it was required to comply with especially rules 406 and 425. The fundamental problem with the FASC is that it does not give the respondents a fair understanding of the claim made by the applicant and an opportunity to respond to them.
The order dismissing the applicant’s application for summary judgment
30․The order dismissing the applicant’s application for summary judgment was inevitable once the FASC had been struck out. Kennett J explained why this was the case at [75]:
… it would be incongruous and unjust to give summary judgment for the plaintiff in circumstances where he has not yet managed to plead all relevant facts in such a way that the defendants can be expected to respond (see, by analogy, Fenato v Chief Commissioner of State Revenue [2010] NSWCA 80; 78 NSWLR 20, [75], [84] (Gzell J, Beazley and Macfarlan JJA agreeing). That conclusion is reinforced by the fundamental problems that appear to stand in the way of each element of the plaintiff’s claims.
31․This decision was clearly correct and no argument was presented to me to the contrary. It is impossible to contemplate a situation where a plaintiff’s pleadings having been struck out, the plaintiff is nevertheless entitled to summary judgment.
The order granting leave to the respondents to make a further application for summary judgment
32․An application for summary judgment made by the respondents was dismissed by McWilliam AsJ: see Ezekiel-Hart v Council of the Law Society of the ACT & Anor [2021] ACTSC 133. A further application could be made with leave (Rule 1148(2)).
33․Kennett J set out what had occurred since the first application was dismissed at [38] of his judgment.
34․He then explained why that history justified leave being granted.
39.In the 16 months that have elapsed since the first strike-out application was determined, and despite all of the activity mentioned above, the case has not moved forward in any meaningful way. While the defendants have sometimes found themselves unable to comply with deadlines and have sought and been granted extensions, the lack of progress is principally due to the amorphous and confusing nature of the case as pleaded and the continuing efforts of the defendants to have it clarified. The level of activity generated (and costs incurred) can also be attributed in part to an ultra-litigious and sometimes poorly informed approach by the plaintiff: eg, seeking to subpoena witnesses for a hearing concerning pleading issues and security for costs, and commencing a satellite proceeding seeking mandamus.
40.In that time there have been two—and, on one view, three—further attempts by the plaintiff to articulate his case in a satisfactory way, but that is yet to be achieved. Meanwhile, considerable expense has been generated by the activity mentioned above. The first strike-out application may well have been somewhat premature to the extent that it sought summary dismissal. However, when the third version of the Statement of Claim (or the fourth, if the so-called “Reply” is viewed as an additional attempt to articulate the case) is as deficient as the first, fairness requires that the defendants be allowed to raise again the issue whether the proceeding should be allowed to continue.
35․The matters to which his Honour referred clearly justified the grant of leave. No argument was addressed to me suggesting otherwise. In such circumstances once again I find that the decision is not attended with sufficient doubt to warrant it being reconsidered, and in fact I find further that the decision is not attended with any doubt at all.
The order summarily dismissing the proceedings
36․As noted above, Mossop J allowed the applicant what he described as one more opportunity to file a statement of claim which complied with the rules with which it was required to comply.
37․That is not to say that Kennett J was right to summarily dismiss the proceedings once he decided to strike out the FASC simply because the applicant had used up his final opportunity. What is more relevant is that if the applicant was ever going to file a statement of claim which complied with the rules, one might have thought that that would have followed him being given “one more opportunity” by Mossop J. Instead of preparing a statement of claim which complied with the rules, the applicant seemingly ignored the ruling of Mossop J striking out certain parts of the ASC because those parts reappeared in the FASC.
38․Kennett J set out five matters which point to the conclusion that the applicant should not be afforded another opportunity (at [42]):
(a) As noted above, the FASC is the third or fourth attempt by the plaintiff to articulate his case. Rather than becoming more focused, it has grown and become more complex. Opportunities to rectify the pleading have not been taken.
(b) There have been two judgments of the Court, and at least two letters from the defendants’ solicitors, attempting to explain to the plaintiff what is required.
(c) There seems little reason to hope that a further opportunity to re-plead will result in a clearer case, or closer adherence to the standards expected of legal practitioners in relation to allegations of serious impropriety. I reach this conclusion in the light of the history of the proceeding and the plaintiff’s lengthy written and oral submissions explaining his case.
(d) The burden on the defendants has been significant, and promises to continue to be so if the proceedings are allowed to continue. This includes stress placed on 12 (by my count) individual officers by allegations of dishonesty. The defendants have obtained several costs orders against the plaintiff in this proceeding and related proceedings but have not so far been able to recover any of those costs. This indicates that the further costs to be incurred if the case continues (which will also be substantial, especially if the state of the pleadings does not improve) may not be able to be recovered.
(e) The case has also consumed substantial public resources in terms of Court time, despite not having progressed beyond the pleading stage.
39․His Honour also referred at [44]-[49] to something else, which also was not challenged on the application before me: the futility of the proceedings. His Honour was entitled to take that matter into account in deciding whether the applicant should be given another opportunity to file a pleading which complied with the rules or not.
40․The matters to which his Honour referred amply justified his decision to summarily dismiss the proceedings. That decision is not attended with sufficient doubt to warrant it being reconsidered; indeed, I am satisfied that it is not attended with any doubt at all. Although the matter was commenced in July 2020, the ruling striking out the FASC had the effect of taking matters back to square one, resulting in an enormous waste of the court’s resources as demonstrated by the number of hearing days and judgments which the proceedings had occupied. There was no possibility that the applicant would, if given another chance, prepare a FASC which would not suffer from the deficiencies his Honour identified.
Bias
41․Many of the proposed grounds of appeal allege actual bias on the part of Kennett J. For example:
(a)Ground 24 suggests that “His Honour was so infected with bias that he became advocate of the Defendants by his conduct…”
(b)Ground 31 says “His honour by his conduct became complicit with abuse of the rule of law, a golden rule barstardized by his Honour for the benefit of the defendant…”
(c)Ground 59 asserts “Black Africans are hated everywhere by those in authority without just cause as in this case his Honour has used his discretional power to…”
42․In his written submissions the applicant argued that “the Court has clearly become an instrument of oppression against Black people”.
43․Nothing in the arguments presented to me demonstrated in any way the possibility that Kennett J was actually biased (See Collier v Country Women's Association of NSW [2018] NSWCA 36 at [27]–[46]).
44․As was recently noted in NSW, Clark v Attorney General for New South Wales (No. 2) [2023] NSWCA 3 at [6]:
A claim that a judge, or all three judges, was or were actuated by actual bias is a grave allegation that should not be made lightly and requires clear and cogent proof (Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]). Where actual bias is said to arise by reason of prejudgment the applicant must show by clear and cogent proof that the judge or judges concerned are so committed to a conclusion that their minds are incapable of alteration whatever argument is presented (Minister for Immigration and Multicultural Affairs v Jia Legeng (2017) 205 CLR 507; [2001] HCA 17 at [72], [127], [176]).
45․To support his allegation of bias the applicant relied on His Honour’s description, during the hearing before him, of an admission made by the respondents as “one tiny thing” (see T:38.21 14/9/22). Even if his Honour were incorrect in his assessment of the weight to be given to that admission, and I am not suggesting he was, that is a long way from demonstrating that he was actually biased against the applicant. At most it might demonstrate legal error.
46․The submissions that Kennett J is one of those in authority who hate Black Africans (see ground 59 above) and that the Court has become an instrument of oppression against Black people (applicant’s written submissions) were made without the slightest attempt to justify them by reference to any conduct of his Honour, apart perhaps from making orders with which the applicant was unhappy. There was no clear and cogent proof that his Honour was in any way motivated by the applicant’s racial background, indeed there no attempt made to prove it in any way. The allegation should not have been made.
Conclusion regarding whether any of the decisions under challenge are attended with sufficient doubt to warrant them being reconsidered
47․The applicant has failed to demonstrate that any of the decisions which he would seek to challenge on appeal are attended with sufficient doubt to warrant them being reconsidered.
Could there be substantial injustice to the applicant?
48․The question as to whether substantial injustice would result to the applicant of leave was refused, supposing the orders made by Kennett J to be wrong, is easily answered.
49․There seems little doubt that the applicant feels a great injustice had been visited upon him. His submissions, both written and oral, contained many references to his desire to support his family by practising as a lawyer. He wishes to be of service to the community through legal practice. What those submissions failed to recognise is something I raised at the very beginning of this judgment, namely, that there is no impediment at all to the applicant applying for a practising certificate, and even if he had achieved success in the proceedings which were terminated by Kennett J, such success would not result in him being granted a practising certificate which would allow him to practise in the future.
50․There is thus no possibility of substantial injustice resulting as a result of leave to appeal being refused even supposing the orders made in the court below to be wrong.
Orders
51․For the reasons above I make the following orders:
(1)The application for leave to appeal is refused.
(2)The applicant is to pay the costs of the respondents.
| I certify that the preceding [51] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman. Associate: Date: |
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