Ezekiel-Hart v Council of the Law Society of the Act

[2021] ACTCA 41

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Ezekiel-Hart v Council of the Law Society of the ACT

Citation:

[2021] ACTCA 41

Hearing Date:

6 October 2021

DecisionDate:

6 October 2021

Before:

Mossop J

Decision:

See [13] and [14]

Catchwords:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – Primary orders relating to directions for preparation for hearing – where defendants seeking to strike out part of the plaintiff’s claim – primary judge not satisfied that it would be appropriate to list the substantive matter at the same time as the application in proceeding – caution must be exercised by Court of Appeal to avoid delay in the preparation and conduct of proceedings – no error of fact or principle in primary decision – not unreasonable or plainly unjust – application dismissed

Legislation Cited:

Court Procedures Act 2004 (ACT), s 5A

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)

McInnes Wilson Lawyers (Respondents)

File Number:

ACTCA 41 of 2021

Decision under appeal: 

Court:  ACT Supreme Court

Before:  Crowe AJ

Date of Decision:          9 September 2021

Case Title:  Ezekiel-Hart v Council of the Law Society of the ACT

Court File Number:      SC 239 of 2020

MOSSOP J:

Introduction

1. By application filed 17 September 2021, the applicant, Emmanuel Ezekiel-Hart, seeks leave to appeal against a decision of Crowe AJ made on 9 September 2021. The applicant also seeks that he be given leave to make this application even though the notice was filed more than seven days after the day the judgment was given.

1. The orders made on 9 September 2021 relate to the preparation for hearing of an application in proceeding filed by the respondents on 8 September 2021. The application in proceeding seeks to strike out various paragraphs of the amended statement of claim and reply to the defence and also seeks an order for security for costs.

1. Before Crowe AJ the issue was what directions to make. Mr Ezekiel-Hart sought directions requiring the substantive proceedings to be prepared for and listed for hearing. The defendants sought to strike out various paragraphs of the amended statement of claim and reply.

1. In correspondence approximately three weeks prior to the hearing before Crowe AJ, counsel for the respondents had identified that a large number of paragraphs of the amended statement of claim alleged that the respondents, their servants and legal representatives had engaged in corrupt, unlawful and dishonest conduct, including deceiving courts and tribunals and lying under oath in the period 2008 to 2016. That correspondence also raised the fact that there were earlier costs orders made in favour of the Council of the Law Society against Mr Ezekiel-Hart arising from other proceedings and that those costs orders had not been paid. Counsel for the respondents had therefore sought information as to Mr Ezekiel-Hart’s capacity to satisfy any adverse costs orders made against him in the present proceedings.

1. The position of Mr Ezekiel-Hart was that the reply that he filed contained the relevant particulars.

1. Crowe AJ was therefore faced with a simple procedural choice: whether to list the respondents’ application to strike out parts of the amended statement of claim and reply and for an order for security for costs in advance of the substantive hearing, or whether to list it at the same time as the substantive hearing. The reasons that his Honour gave were as follows:

I am not persuaded that it would be appropriate to list the substantive matter at the same time as the application in proceeding of the defendants dated 8 September 2021. The defendants’ application, apart from seeking security for costs, raises a number of challenges to the amended statement of claim filed by Mr Ezekiel-Hart in this matter. I have had a quick look at that document. It contains a large number of paragraphs which plead in a manner which is not conventional in the pleading of a statement of claim in this court and I can understand that a defendant might have some difficulty in responding in the appropriate way to the – some of the allegations, indeed probably many of the allegations made in the statement of claim. The pleadings in this court are important because that is the way under the rules, and indeed, the common law the issues to be decided by the court are distilled by what is alleged, what is admitted or denied and what is then left in issue between the parties. It is not possible, in my view, for a substantive hearing in a matter as complex as this one appears to be to be able to proceed in an orderly and sensible way until the pleadings between the parties have been properly sorted out. While there is an issue about the adequacy of the pleading of the statement of claim, it would be entirely premature and not in the interests of justice to list the substantive hearing.

Such a listing would require the parties to prepare for a case where the issues were at large and that is not the way our system of justice operates. Accordingly, it seems to me, as a matter of logic, that the defendants’ application in proceeding must be permitted to proceed before the substantive matter can be advanced towards a hearing.

Consideration

1. The draft notice of appeal seeks an order that any application by the defendants to strike out part of the plaintiff’s claim should be considered at the hearing of the substantive matter.

1. Mr Ezekiel-Hart contends that he had insufficient time to consider the application in proceeding prior to the hearing on 9 September 2021, that the orders of Crowe AJ were infected with bias and that the orders were not consistent with s 5A of the Court Procedures Act 2004 (ACT). He also has submitted that the defendants had elected not to challenge his pleading and were estopped from making any application. This was not an argument put below.

1. No complaint of inadequate time was made before the primary judge. Mr Ezekiel-Hart in fact made submissions to the primary judge as to the appropriate course to be adopted. It is clear that his Honour gave consideration to the submissions that were made to him.

10.  On an interlocutory matter involving questions of practice and procedure, the Court of Appeal should exercise great caution before granting leave to appeal. A tight rein must be kept upon such appeals because of the risk that the orderly preparation and conduct of proceedings be delayed and fragmented by the hearing of such appeals.

11. No arguable error of fact or principle is identified in the approach taken by the primary judge. It was not arguably unreasonable or plainly unjust. It was clearly a discretionary case management decision. Dealing with the application in proceeding had the obvious benefit that the issue of the content of the serious allegations would be resolved prior to the substantive hearing and the question of security for costs would be addressed prior to those costs being incurred. Addressing the matter in that way was not inconsistent with s 5A of the Court Procedures Act. There is no proper basis for the allegation of bias against Crowe AJ or, indeed, any apprehension of bias.

12.  In this case, the decision in relation to which leave is sought is not attended by sufficient doubt to warrant it being reconsidered. Therefore, leave to appeal will be refused.

Orders

13.  The orders of the Court are:

1.The applicant has leave to bring the application for leave to appeal dated 16 September 2021 notwithstanding that it was filed outside the time set under the Court Procedures Rules.

2.The application dated 16 September 2021 is dismissed.

14.  [The parties were heard in relation to costs.]

3.The applicant is to pay the costs of the respondents but those costs are not to be assessed until the proceedings SC 239 of 2020 end.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 10 December 2021