Ezekiel-Hart v Council of the Law Society of the Act
[2023] ACTSC 78
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ezekiel-Hart v Council of the Law Society of the ACT |
Citation: | [2023] ACTSC 78 |
Hearing Date: | 13 April 2023 |
DecisionDate: | 13 April 2023 |
Before: | Norrish AJ |
Decision: | The Application made ex parte for interim relief is dismissed. |
Catchwords: | PRACTICE AND PROCEDURE – EX PARTE APPLICATION FOR INTERIM RELIEF – Plaintiff claiming ‘victimisation’, ‘discrimination’, ’intimidation’ – whether there is sufficient risk of irremediable damage or detriment to the rights of the plaintiff – Whether it was necessary to proceed on an ex parte basis –requirements for notification of affected parties –circumstances of grant of interim relief ex parte |
Legislation Cited: | Human Rights Act 2004 (ACT) Human Rights Commission Act 2005 (ACT) s 98 Legal Profession Act 2006 (ACT) s 394 |
Cases Cited: | Bond Brewing v National Bank (1990) 1 ACSR 445 Earl of Mexborough v Bower (1843) 49 ER 1011 |
Texts Cited: | Spry, Equitable Remedies, (Thomson Reuters, Australia, 9th ed, 2013) |
Parties: | Emmanuel Ezekiel-Hart ( Plaintiff) Council of the Law Society of the ACT ( First Defendant) Robert Anthony Reis (Second Defendant) Simone Carton (Third Defendant) Farzana Choudhury (Fourth Defendant) Katie Elizabeth Binstock (Fifth Defendant) Samuel Harper (Sixth Defendant) Attorney-General of the ACT (Seventh Defendant) Director of Public Prosecution (ACT) (Eighth Defendant) ACT Police Commissioner (Ninth Defendant) |
Representation: | Counsel Self-represented ( Plaintiff) |
| Solicitors Self-represented ( Plaintiff) | |
File Number: | SC 139 of 2023 |
Norrish AJ:
1․ Emmanuel Tam Ezekiel-Hart ('the plaintiff') filed a statement of claim at the Registry of this Court on 11 April 2023 in respect of which there are nominated nine defendants, including the Council of the Law Society of the ACT (‘the Law Society’), the Attorney-General of the Australian Capital Territory, the Director of Public Prosecutions (ACT), the ACT Police Commissioner and five separately name individuals.
2․ Relief sought in the statement of claim includes declaratory relief, requesting that the “Defendants provide unqualified apology to the Plaintiff” for “victimization [sic] breaches and denial of Human Rights”, as well as other apologies from the parties to him for loss of work, reputation and pain and suffering allegedly caused by the conduct of individual defendants. He seeks, amongst other relief, in due course, compensatory damages, aggravated damages and special damages. He also seeks, in due course, costs and any other orders deemed appropriate.
3․ Some generally worded particulars of his claims in respect of “Human Rights matter victimization [sic]”, “Breach of Duty of Care”, and “Negligence” are set out at pages 2 to 22 of the statement of claim filed. There are various claims of injury to the plaintiff and members of his family arising out of the conduct of particular defendants. There are specific claims for breaches of the Human Rights Act 2004 (ACT).
4․ The various Acts and alleged breaches of them relate to alleged conduct of particular defendants occurring primarily between 2013 and 24 February 2023. The central claim of the plaintiff, to summarise, is that the Law Society had allegedly erred by not issuing the plaintiff with a practising certificate at various times, or an interim practising certificate at various times, in that period of time up until and including 24 February 2023. As a result, by dint of failure of particular authorities to enforce the law, the plaintiff had been “victimized [sic]”, “intimidated” and “discriminated” against.
5․ The applicant seeks interim orders in the following terms:
(a)Firstly, “restraining the Defendants from further victimisation of the Applicant pending final determination of matters before the Courts and the Commission”;
(b)Secondly, “restraining the Defendants from self-help or threaten any form of detriment against the Applicant pending determination of the matters before the Court”;
(c)Thirdly, “restrain the Defendants from intimidating, bully [sic] and cause anxiety to the Applicant by requesting information of any complaint arising from the Applicant taking them to court to assert his human rights and other rights under the law”; and
(d)Finally, “any other orders the Court deemed fit to protect the Applicant from victimisation and unfavourable treatment with discrimination by the Defendants.”
6․ The application before me does not, by reference to the material contained within the statement of claim, identify any anticipated future conduct of the defendants other than the continuation of alleged conduct which it seems, from what one can gather from the statement of claim, has occurred over 10 years up until 24 February 2023. There is no “immediacy” or impending conduct identified warranting restraint on an ex parte basis.
7․ The truth or otherwise of claims of harm, injury, breach of human rights or related improper or illegal activities by particular defendants cannot be established at this point. This cannot be done without the hearing of evidence, not only from the plaintiff, who did volunteer to go to the witness box today, and any witnesses he wishes to call, or any documents he produces, properly tested, but also from hearing evidence that the defendants may wish to adduce in response to the matters raised by the plaintiff.
8․ In relation to the statement of claim, the plaintiff has told me, notwithstanding the fact that the statement of claim was filed only two days ago, that he has served the statement of claim on the defendants. However, there are no affidavits of service yet filed in the Court and obviously no appearance of the parties, hence the matter has proceeded ex parte. I note in relation to the statement of claim that any defence or notice of intention to respond to the originating claim must be made within 28 days of the date of service of the statement of claim on a particular defendant.
9․ This matter was brought to my attention yesterday in order to determine its urgency. I directed that the matter be listed for mention today at 2:00pm and the plaintiff be advised, to ascertain what was to be done in relation to the matter. When the plaintiff appeared before me, I raised with the plaintiff the issue of whether he had notified the parties of the fact the matter was listed today at 2:00pm. He had not, not that he had an obligation to do so. He reiterated that he wished to pursue his interim application ex parte in all the circumstances.
10․ I asked him to identify the issue of urgency that requires me to deal with the matter ex parte. The essential urgency urged by the plaintiff, as I understood it, is that the various defendants are, to use the plaintiff's words, “creating detriment” against him, including during the period that the proceedings are before the Court.
11․ As I understand his repeated submission, the continuation of the “victimisation” and “discrimination” which is identified in the statement of claim has put “pressure” upon him and “distracts” him from the proper conduct of the proceedings. Thus, interim orders ought to be made today on an ex parte basis to enable the plaintiff to properly pursue his rights in accordance with the statement of claim.
12․ I raised with him the issue of what evidence there was before me of such matters, bearing in mind, of course, that what is pleaded in the statement of claim is not evidence of relevant matters. It must be said there is some uncertainty about the detail of some of the allegations raised by the plaintiff in the statement of claim itself.
13․ He produced to me a letter dated 24 February 2023, which I have marked as Exhibit 1. This is a letter addressed to the plaintiff at, I assume, a domestic address, relating to a complaint by the Law Society against the plaintiff. The letter advises that the matter has been considered by the Law Society, in respect of which the plaintiff was notified of certain matters.
14․ When asked to identify the evidence within the letter of victimisation or discrimination or intimidation which the plaintiff claims, he drew my attention specifically to paragraph 1. I will read it in full:
1.Complaint Against You
The Council met on Monday, 20 February 2023, at which time it made an own-motion complaint against you pursuant to section 394 of the Legal Profession Act 2006 (ACT) (Act) arising out of information regarding your alleged conduct that it has been made aware of in the course of various legal proceedings that you have commenced.
15․ The plaintiff has directly submitted to me that that paragraph is of itself evidence of victimisation, discrimination and/or intimidation. Out of context, it is impossible to see how that could be so. I cannot accept what has been put to me that it is prima facie evidence of relevant criminal conduct that may be prohibited either by s 98 of the Human Rights Commission Act 2005 (ACT) to which reference is made in the statement of claim, or s 68 of the Discrimination Act 1991 (ACT) to which the plaintiff made reference in his submissions.
16․ I asked him questions about the detail of what is contained in the statement of claim in the context of my understanding of the chronology of events. Again, it is difficult to identify that chronology clearly from the statement of claim. The plaintiff indicated to me, according with my understanding of the statement of claim, that there had been a series of events occurring since 2013 when, in one form or another, a practising certificate was withheld from the plaintiff up until the issuing of the letter of 24 February 2023. Then, again, a practising certificate was not issued to the plaintiff or was withheld from him in circumstances that the plaintiff claims constitute victimisation and discrimination and various breaches of the Human Rights Act.
17․ He points out to me in his submissions, of which I obviously do not have a transcript at this early stage, that the conduct of the Law Society, individuals that are identified as defendants associated with the Law Society and other defendants has led to breaches of the Human Rights Act, which is designed to protect him from detriment. He submits to me that in order for that detriment to be restrained or ceased to enable him to continue the litigation seeking the damages that I have referred to in general terms, he requires the interim orders to be made. He states that the continuation of victimisation, discrimination and the like that he claims has occurred will, to use his words, “distract” him from proper conduct of the proceedings.
18․ I have taken into account the detail of the letter contained in Exhibit 1 further beyond paragraph 1 to which I referred. The grounds of complaint against him set out in the letter by the Law Society are set out at paragraph 2. They include:
a.Utilis[ing] the processes of the Supreme Court of the ACT [and other judicial and administrative bodies] to make allegations of serious misconduct against various individuals without:
i.particularising clearly and specifically the basis for making allegations; and
ii.having any reasonable basis for making allegations
.. such conduct being in breach of your ethical and professional obligations under the common law;
b.mak[ing] submissions to the Court [which I take to be the various judicial bodies referred to earlier in the paragraph] which convey or are capable of conveying a misleading impression of breach of your ethical and professional duties under the common law and/or that demonstrate that you are not a fit and proper person to practice law; and
c.lack[ing] sufficient knowledge of the law and legal practice and processes to be able to deliver legal services with a degree of competent skill and diligence expected of a legal practitioner.
19․ The various facts and circumstances are set out in attachments to the letter, particularly Schedule 1, which is not provided to me. There is a request for a response to the letter, which goes on to detail other matters, by Friday, 10 March 2023. The plaintiff has referred to that date being extended to 11 April 2023. Hence, the filing of the statement of claim to which I have referred. I would take it that there has been no opportunity whatsoever for the respective defendants to consider the material that has been served upon them given the statement by the plaintiff that the statements of claim were served only yesterday, and we are here, the following day, dealing with this matter on an interim basis.
20․ There are a number of authorities in this Court that deal with the issue of the granting of interim relief on an ex parte basis. One such authority is a decision of Mossop J in O'Sullivan v Bunnings Group Limited [2023] ACTSC 38, a decision of March this year, and a decision of Robinson AJ in Rudnicki v Adventura One Pty Ltd [2017] ACTSC 89.
21․ In the latter case, Robinson AJ gathered together a number of authorities and statements of principal at [27]–[30]. One such case is a decision of the early 20th century of Thomas A Edison Ltd v Bullock (1912) 15 CLR 679. In that decision, it was held (at 681) that no order should be made to prejudice a party unless the party has had the opportunity to be heard in defence, unless there was evidence that the justice of the case could not be met unless the subject matter of the suit was preserved to avoid destruction by one party or “if irredeemable or serious damage be imminent”, in which case an interim order may be sought on the ground that the delay would involve “greater prejudice than instant action”.
22․ Another authority cited by Robinson AJ was International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319, 383–384 at [150], where Heydon J, in the context of the consideration of interlocutory injunctions in equity and the sensitivity of the law towards the interests of parties who may be affected by ex parte substantive orders, approved a decision of the Privy Council that had held that a judge should not entertain an application of which no notice has been given unless, either by giving notice would enable the responding party to take steps to defeat the purpose of the injunction or there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act. Those situations do not arise here in the context of what I have outlined before. His Honour noted that the cases in the category of situations where there was no time to give notice before the injunction is required to prevent the wrongful act were “rare'” because, as the Privy Council in National Commercial Bank Jamaica Ltd v Olint Corporation Ltd [2009] 1 WLR 1405 noted:
Even in cases in which there was no time to give the period of notice required by the rules, there will usually be no reason why the applicant should not have given shorter notice or even made a telephone call. Any notice is better than none.
23․ Robinson AJ also cited with approval the decision in Bond Brewing v National Bank (1990) 1 ACSR 45. At [458], that cited with the approval the words of the Master of the Rolls, Lord Langdale, in Earl of Mexborough v Bower (1843) 49 ER 1011:
... the granting of an injunction ex parte is the exercise of a very extraordinary jurisdiction, the effect of which, in every case in which it is asked, is most alarming; therefore the time at which the plaintiff first had notice of the existence of the subject of complaint, is looked to with the greatest care and jealousy, in order to prevent an improper order being made against a party in his absence …
24․ In that context, it is to be borne in mind that in respect of the orders sought, there is, with due respect to the drafting by the plaintiff, a considerable amount of generality and vagueness which could create considerable unfairness to one or other of the defendants if the order was made without the opportunity for comment and/or to make opposition to those orders that are sought.
25․ Finally, Robinson AJ referred to the well-known text on equitable remedies by Spry, Equitable Remedies, Ninth Edition at pages 530–531. From that text, his Honour approved the statements of principle in relation to ex parte applications expressed in the following terms:
The main considerations that the court takes into account, when it is thus asked to depart from the more desirable course of hearing both parties, are the extent and nature of the risk that will be undergone by the plaintiff if there is an adjournment, the degree of probability with which he has established his rights, the extent of the hardship or prejudice to the defendant that the grant of an injunction will involve, any difficulties that may be encountered in effecting service on or giving notice of the material application to him and the extent to which the grant or refusal of relief may affect third persons.
26․ These authorities and principles adopted by his Honour were cited briefly with approval by Mossop J in the decision of O'Sullivan. His Honour pointed out in that matter further that an ex parte application “should be reserved to circumstances where a failure to hear the other side can properly be justified.” Given the background of continuing alleged conduct by the parties occurring over an extended period of time, it seems to me that this is not a case where it could be justified to fail to hear the views of the “other side”.
27․ The reality is that the grant of the relief sought on an interim basis further requires proof of some of the matters pleaded in the statement of claim in circumstances where those claims have been suitably tested. This can only occur when one or other or all of the defendants have an opportunity to hear the evidence upon which the statement of claim is based, state that evidence and produce whatever evidence is available to them in reply. Not simply rely upon assertions within the statement of claim.
28․ I might point out in the scheme of things that on the basis of what was said to me today, having regard, I hasten to say, to the detail of the statement claim, it is difficult to see how it is that s 98 of the Human Rights Commission Act and s 68 of the Discrimination Act, cited by the plaintiff in the statement of claim, have been breached. But in fairness to the plaintiff, those matters may be clearer when greater detail is provided beyond what is asserted in the statement of claim.
29․ In the absence of reliable evidence which cannot, for obvious reasons, be adduced on an ex parte basis, it is not open to the Court to conclude that there is an imminent risk of irredeemable damage for detriment to the rights of the plaintiff or any further damage beyond that already claimed by the plaintiff in the statement of claim.
30․ I do not accept the proposition put by the plaintiff today that a failure to restrain the defendants will in some way distract the plaintiff from the proper conduct of the proceedings. The test of that may be simply by noting that the continuing conduct of the defendants to which the plaintiff refers has not distracted him from commencing the proceedings in the first place.
31․ Thus, in the circumstances of the matter, I dismiss the applications sought by the plaintiff today. Given the fact that there are no affidavits of service yet filed and given the fact that the period of time for filing relevant notices of defence has only just begun in this matter, it is not appropriate to make any other orders, including an order placing the matter in a relevant list for directions to be given. That is a matter that will need to be done at a future time.
Orders
32․ Thus, the order I make in relation to the matter at this stage is that:
(1) The Application made ex parte for interim relief, which is contained in the Statement of Claim filed 11 April 2023, is dismissed.
33․ There is no requirement to make a costs order at this present time, but if costs orders were required in relation to such interim matters, I would have thought, they would be ‘costs in the cause’ unless there was some egregious issue that warranted some other order to be made.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Norrish. Associate: Date: 20 April 2023 |
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