Ezekiel-Hart v Council of the Law Society of the Act
[2022] ACTCA 33
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Ezekiel-Hart v Council of the Law Society of the ACT |
Citation: | [2022] ACTCA 33 |
Hearing Date: | 6 July 2022 |
DecisionDate: | 6 July 2022 |
Before: | Elkaim J |
Decision: | (i) The application for leave to appeal filed on 14 June 2021 is dismissed. (ii) Each party is to pay its own costs of the application. (iii) Each party has leave to file and serve written submissions seeking a different costs order within seven days. (iv) Any application for a different costs order is to be decided on the papers. |
Catchwords: | APPEAL – LEAVE TO APPEAL – Costs – where the applicant seeks leave to appeal an interlocutory judgment in relation to costs – whether leave is required – whether leave is sought for an interlocutory decision or out of time – indemnity costs – application dismissed |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5311 Supreme Court Act 1933 (ACT) s 37J |
Cases Cited: | Ex Jarman & others; Ex parte Cook (No 1) (1997) 188 CLR 595 Ezekiel-Hart v Council of the Law Society of the ACT [2022] ACTSC 117 The King v Justices of the Central Criminal Court; Ex parte London City Council [1925] 2 KB 43 |
Parties: | Emmanuel Tam Ezekiel-Hart ( Appellant) Council of the Law Society of the ACT ( First Respondent) The President of the Law Society of the ACT (Second Respondent) The Attorney-General of the ACT (Intervener) |
Representation: | Counsel Self-represented ( Appellant) N Olson ( Respondents) C Pilley (Intervener) |
| Solicitors Self-represented ( Appellant) McInnes Wilson Lawyers ( Respondents) ACT Government Solicitor (Intervener) | |
File Number: | ACTCA 29 of 2022 |
Decision under appeal: | Court/Tribunal: Supreme Court Before: Kennett J Date of Decision: 3 June 2022 Case Title: Ezekiel-Hart v Council of the Law Society of the ACT (No 2) Citation: [2022] ACTSC 131 Court File Number: SC 36 of 2022 |
Elkaim J:
I have heard this matter as a single judge of appeal pursuant to s 37J of the Supreme Court Act 1933 (ACT).
On 10 June 2022 Chief Ezekiel-Hart (the applicant) filed an application for leave to appeal from an interlocutory judgment. Leave is required by reason of r 5311 of the Court Procedures Rules 2006 (ACT).
The judgment in respect of which leave to appeal was sought was handed down by Kennett J on 3 June 2022 (Ezekiel-Hart v Council of the Law Society of the ACT(No 2) [2022] ACTSC 131).
This judgment concerns costs and arises from an earlier judgment delivered on 25 May 2022 (Ezekiel-Hart v Council of the Law Society of the ACT [2022] ACTSC 117). I will refer to this decision as the first judgment and to the costs decision as the second judgment.
The application is opposed by the two respondents and also by the intervener, the Attorney-General of the ACT, although for different reasons.
In the first judgment, at [8], Kennett J described the application he was hearing as follows:
The application now before me is a separate proceeding. It concerns the decision that his Honour made on 4 February 2022 to defer consideration of the summary judgment application. It was filed on 7 February 2022 and is supported by an affidavit of the same date.
In order to understand the paragraphs just quoted it is necessary to set out the introduction to the first judgment:
1.This proceeding is the latest in a long list of disputes between the plaintiff (Mr Ezekiel-Hart) and the Law Society of the Australian Capital Territory (the Law Society) and some of its officers. This history of litigation is summarised by Mossop J in Ezekiel-Hart v Council of the Law Society of the ACT (No 2) [2022] ACTSC 29 at [2].
2.The current proceeding arises out of another, existing proceeding (SC 239 of 2020), which itself has a tortured history. That proceeding arises out of the refusal of the Council of the Law Society to grant Mr Ezekiel-Hart a practising certificate in 2020. Mr Ezekiel-Hart commenced the proceeding on 3 July 2020 by filing an Originating Claim and Statement of Claim. Following an application made by the defendants, McWilliam AsJ struck out the Statement of Claim on 30 June 2021 pursuant to r 425 of the Court Procedures Rules 2006 (ACT) (the Rules): Ezekiel-Hart v Council of the Law Society of the ACT [2021] ACTSC 133. In the same judgment her Honour also refused to give summary judgment for the defendants, refused to declare Mr Ezekiel-Hart a vexatious litigant, and refused to set aside a decision by a Deputy Registrar of the Court not to enter default judgment.
3.Mr Ezekiel-Hart filed an Amended Statement of Claim, of some 64 pages, on 28 July 2021. On 16 August 2021, the defendants filed their defence. On the same day, the solicitors for the defendants wrote to Mr Ezekiel-Hart seeking particulars of certain paragraphs of the Amended Statement of Claim and requesting that he outline the nature of the evidence upon which he intended to rely.
4.Rather than replying directly to this letter, Mr Ezekiel-Hart filed a Reply comprising 50 pages on 30 August 2021. His position was that he considered that his Reply contained the requested “facts, circumstances and nature of evidence”.
5.On 8 September 2021, the defendants filed an application to strike out certain paragraphs of the Amended Statement of Claim (the strike out application). That application was heard on 17 December 2021. The hearing had to be completed by written submissions, the last of which were filed on 25 January 2022. On 25 February 2022, in the decision referred to at [1] above, Mossop J ordered that 18 paragraphs of the Amended Statement of Claim and 84 paragraphs of the Reply be struck out either wholly or in part, and that Mr Ezekiel-Hart have leave to file an amended Statement of Claim within 28 days. His Honour also refused an application for security for costs against Mr Ezekiel-Hart.
6.Meanwhile, on 25 January 2022, Mr Ezekiel-Hart had filed an application seeking summary judgment in the proceeding (the summary judgment application). This, of course, occurred while a dispute was on foot as to whether significant portions of his Amended Statement of Claim were liable to be struck out.
7.The summary judgment application was returnable on 4 February 2022 before Mossop J. His Honour adjourned the summary judgment application for mention at the time his judgment on the strike out application was given.
The result of the first judgment was:
The order of the Court is therefore that the Originating Application is dismissed. I will hear the parties on costs.
The hearing on costs is the subject of the second judgment. It can be seen from the result of the first judgment that the applicant was unsuccessful. Without more, costs would normally have followed that event. There was however a good deal more in the costs hearing. Firstly, the applicant, notwithstanding his loss, submitted that costs should be awarded in his favour, or there should be no order as to costs. Secondly the first and second respondents not only wanted their costs but sought them on an indemnity basis.
The basis for the applicant’s suggested order was that he had achieved some success in the proceedings. His Honour disagreed and stated, at [6] of the second judgment:
Put simply, the originating application in this proceeding failed.
The first and second respondents wanted indemnity costs from 4 May 2022 because they said the applicant had received their written submissions on 3 May 2022 so that he should have realised his application was doomed to fail. His Honour was referred to Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 where Woodward J awarded indemnity costs when an application had been “commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success.”
His Honour took into account that the applicant was self-represented, but, at the same time, was legally qualified. His Honour balanced these considerations in reaching the conclusion that the applicant should be held “to a standard close to that which would be applied to a party with legal representation. Nevertheless, some allowance should be made for his position.”
Applying these considerations, his Honour made the following orders:
(1) The plaintiff is to pay the first and second defendants’ costs of the proceeding.
(2) Those costs, if not agreed, are to be assessed on an indemnity basis for the period commencing 11 May 2022 and otherwise on a party and party basis.
No order for costs was made in respect of the intervener. This party had not made any application for costs.
The respondents’ written submissions raise the question of the limits of the application. They wonder whether the proposed appeal is intended to challenge the first judgment. This concern is understandable in the light of the grounds set out in the draft notice of appeal. However the draft notice is explicit in stating that the appeal is only from the decision on costs:
The appellant appeals from the second order 1(b).
Order (1)(b) is:
Plaintiff pay the costs of the First and Second Defendants.
The application before me seeks this order:
That the applicant be given leave to appeal against the judgment of Honourable Justice Kennett given on 3 June 2022.
Notably “25 May 2022” was originally inserted in the above order but deleted and the deletion was initialled.
At the commencement of the hearing this morning I confirmed with the applicant that his application was limited to the costs order made by Kennett J.
The intervenor has emphasised three points, with which I agree:
(a)The orders made by Kennett J were final orders so that the rules regarding appeals from interlocutory orders did not apply.
(b)Even though applying for leave in respect of the costs order only, the applicant was obliged to appeal the whole of the proceedings because the costs orders were a constituent of those proceedings. This did not mean that, on appeal, the grounds could not be limited to only costs issues.
(c)Whether interlocutory or not, the applicant now nevertheless needed leave to appeal because he was out of time even if appealing from a final order.
The respondents maintained their position that the matter was interlocutory but ultimately said the distinction was not important because leave was in any event required. I pointed out that the test for leave to appeal from an interlocutory decision might be more stringent than that for leave to appeal out of time, especially when there was not a lengthy period outside the time limit and the delay had been caused by a misconception as to the proper procedure to be taken.
The respondents said that whichever test was applied, the application faced an uphill battle because an appeal against a costs order only requires exceptional circumstances. I was taken to the decision of the High Court in Jenkins v Lanfranchi (1910) 10 CLR 595 where, at 597, Griffiths CJ said:
But I do not know of any instance in which an appellate Court has reviewed a decision of the Court appealed from on a mere question of costs within the discretion of the Court. Therefore, although the Court has formally jurisdiction to entertain an appeal when only the costs are in question, it would require a case of very extreme circumstances to justify us in interfering when there is no other foundation for the appeal.
I think the respondents are correct in the test that they have put forward. This test will apply whether the application is for leave out of time or for leave from an interlocutory decision. I intend to proceed on the basis that the application is put on an alternative basis. It would be a waste of time and costs to require the applicant to amend his application.
Besides relying on his submissions, the applicant today emphasised two points:
(a)It would be unjust for there to be a costs order against a person who brings a matter to court arising from the original fault of the other party. In other words, the respondents had effectively brought the need to go to court upon themselves.
(b)Although he ultimately failed, the applicant had been successful on whether or not the Court had jurisdiction to hear the matter.
I pointed out to the respondents that I had real concerns about one element of the costs order, namely the awarding of indemnity costs.
As noted above the basis for the awarding of indemnity costs was his Honour’s view that the applicant should be held “to a standard close to that which would be applied to a party with legal representation. Nevertheless, some allowance should be made for his position”.
Acknowledging that the applicant is legally qualified, I nevertheless think that there is a real argument against the awarding of indemnity costs for the reasons given by his Honour, because:
(a)It is not uncommon with self-represented persons, and it seems abundantly evident here from the applicant’s written submissions, that he has formed a very personal view of his legal situation such that his capacity to have objectively weighed up the strength of the written submissions served upon him on 3 May 2022 might have been compromised.
(b)Although having some legal qualifications, even a brief perusal of the applicant’s written submissions call into question his capacity to understand legal principles. Not only do his written submissions wander over a plethora of issues, but they are infected with ‘non-legal’ musings. This is the first paragraph of his submissions:
The exercise of discretion especially, in the award of cost, in a matter between the persecuted poor of society and the rich, influential and mighty of society, shall not be always in favour of the rich, influential and mighty in the society, otherwise it destroys the fabric of peace and trust which the people in democracy enlivened by fair-go put on the Court as custodian in the spirit of the High Court decision that cost is not automatic, and can be made against even a successful party.
I have not seen the written submissions relied upon by the applicant in respect of the substantive case before Kennett J, but if they have the same flavour as those before me then a conclusion that the applicant’s position was akin to that of a person with legal representation is possibly a debatable assumption. These comments are not intended as a criticism of the applicant who is obviously consumed by his predicament. Rather they recognise he has not been practising for a number of years and has no doubt lost the ability to maintain his familiarity with relevant legal issues.
The respondents pointed out that the application that was heard by Kennett J, seeking a writ of mandamus compelling the Court or Mossop J to enter summary judgment for the applicant, had no prospect of success. I was referred to cases such as Ex Jarman & others; Ex parte Cook(No 1) (1997) 188 CLR 595 (at 603) and The King v Justices of the Central Criminal Court; Ex parte London City Council [1925] 2 KB 43 (at 58) to emphasise this point.
I think it is clear, as recognised by Kennett J, and perhaps even accepted by the applicant, considering his limiting of his application to costs, that the original application had no merit.
The question that then arises is whether or not my misgivings about the indemnity costs order are sufficient to ground the granting of leave, but limited to challenging the awarding of indemnity costs.
There is an abundance of evidence to suggest that the applicant is a man of few means and one wonders what the efficacy of an indemnity costs order would be, let alone the motivation to have sought such an order in the first place.
Nevertheless, I must recognise that while I might have exercised the discretion differently, that is not the test. Costs are subject to a very broad discretion, such that to categorise my possibly different view on the discretion as amounting to extreme or special circumstances would be quite wrong. Arguably the discretion is wide enough to encompass both my inclination and the orders of Kennett J.
When I suggested to the applicant that I was considering granting leave limited to the question of indemnity costs he said that he wished to pursue his application in respect of the whole of the costs orders. I do not think there is any merit at all in his complaints about the costs orders generally. Whether viewed against the overall discretion in respect of costs, or the simple fact that the original application was doomed to failure, there can be no viable complaint made about an award of costs in favour of the respondents.
It follows that the application must be dismissed. I have not heard the parties on the costs of this application. I assume the intervener maintains its previous stance of not seeking costs from the applicant. I have little doubt that the respondents will seek costs.
I have some reservation about awarding costs to the respondents. Their resistance to the application was entirely justified. However, their resistance has included the incurring of what I consider to be unnecessary costs. For example, I was provided with an exhibit of 350 pages but taken only to the transcript of the second judgment. This judgment is in any event contained within the reported decision cited above.
The same wide discretion that was available to Kennett J is also available to me. In my view, justice is served in this case by an order that each party pay its own costs. I will however give leave to the parties to provide written submissions on costs within seven days, to be decided on the papers.
I make the following orders:
(i)The application for leave to appeal filed on 14 June 2021 is dismissed.
(ii)Each party is to pay its own costs of the application.
(iii)Each party has leave to file and serve written submissions seeking a different costs order within seven days.
(iv)Any application for a different costs order is to be decided on the papers.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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