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

[2022] ACTSC 117

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

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

Citation:

[2022] ACTSC 117

Hearing Date:

24 May 2022

DecisionDate:

25 May 2022

Before:

Kennett J

Decision:

Originating Application is dismissed

Catchwords:

JUDICIAL REVIEW – Where relief by way of prerogative order is sought against the Supreme Court – where impugned decision is an interlocutory decision of a Judge exercising the original jurisdiction of the Supreme Court – whether the Supreme Court has power to grant the relief sought

Legislation Cited:

Administrative Decisions (Judicial Review) Act 1989 (ACT) ss 4, 8

Australian Capital Territory (Self-Government) Act 1988 (Cth) s 48A
Court Procedures Rules 2006 (ACT) rr 425, 6256

Supreme Court Act 1933 (ACT) ss 3, 8, 13, 20, 37E

Cases Cited:

Barton v Walker [1979] 2 NSWLR 740

Ezekiel-Hart v Council of the Law Society of the ACT [2021] ACTSC 133
Ezekiel-Hart v Council of the Law Society of the ACT (No 2) [2022] ACTSC 29
Nyoni v Bird [2022] FCAFC 61
R v Justices of the Central Criminal Court; Ex parte London City Council [1925] 2 KB 43
Re Jarman; Ex parte Cook (1997) 188 CLR 595

Saad v Commissioner of the Australian Federal Police [2021] VSCA 246; 361 FLR 261

Parties:

Emmanuel Tam Ezekiel-Hart ( Plaintiff)

Council of the Law Society of the ACT ( First Defendant)

The President of the Law Society of the ACT (Second Defendant)

The Supreme Court of the Australian Capital Territory (Third Defendant)

Attorney-General of the Australian Capital Territory (Intervener)

Representation:

Counsel

Self-represented ( Plaintiff)

D Moujalli ( First and Second Defendants)

No Appearance (Third Defendant)

P J F Garrisson AM SC with K Weir (Intervener)

Solicitors

Self-represented ( Plaintiff)

McInnes Wilson Lawyers ( First and Second Defendants)

No Appearance (Third Defendant)

ACT Government Solicitor (Intervener)

File Number:

SC 36 of 2022

KENNETT J:

Introduction

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].

1. 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.

1. 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.

1. 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”.

1. 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.

1. 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.

1. 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 application

1. 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.

1. The Originating Application names as defendants the Council of the Law Society, the President of the Law Society, this Court and Justice Mossop. It seeks a writ of mandamus, compelling the Court or Justice Mossop to enter summary judgment for Mr Ezekiel-Hart in proceeding SC 239 of 2020, and an order that the writ of mandamus be made peremptory in the first instance. It also seeks an order staying any impending decision on the defendants’ application to strike out parts of the pleadings and for security for costs. That prayer for relief seems to have been overtaken by events.

1. The defendants have responded to the Originating Application by filing an Application in Proceeding seeking an order setting aside the Originating Application, or alternatively an order declining to exercise jurisdiction.

1. The decision made on 4 February 2022 involved the making of interlocutory orders by this Court. It was open to Mr Ezekiel-Hart to appeal to the Court of Appeal from those orders, although he would require a grant of leave in order to do so: Supreme Court Act 1933 (ACT) s 37E (Supreme Court Act). He has not made an application for such leave. Nor, so far as the material shows, has he sought to have his summary judgment application listed for hearing. Instead, he seeks to have the Court direct a writ of peremptory mandamus to itself.

1. It is appropriate to note, also, that the summary judgment application was mentioned briefly before Mossop J on 25 February 2022 when his Honour gave judgment on the strike out and security for costs issues. His Honour adjourned the application to 7 March 2022, which was the day on which he dealt with the question of costs. Mr Ezekiel-Hart did not attend on that day. His Honour adjourned the summary judgment application for directions before a Registrar on 1 April 2022. On that day, the Registrar made various orders in relation to the further conduct of SC 239 of 2020, but no directions were sought or made in connection with the summary judgment application. Proceeding SC 239 of 2020 has been before Registrars of the Court on two further occasions since then but no directions have been made in relation to the summary judgment application. That application therefore remains before the Court, and can be listed for directions at any time with a view to having it heard.

Consideration

1. The present proceeding seeks to call into question the correctness of Mossop J’s interlocutory decision on 4 February 2022 without going through the process that the Supreme Court Act puts in place for that to be done; namely, seeking leave to appeal. It also seeks, for reasons which are not clear, to forestall the ordinary processes of the Court (by which Mr Ezekiel-Hart’s summary judgment application would, after filing of evidence on both sides, be listed before a Judge and determined). These matters suggest that there are strong discretionary reasons for refusing the relief sought.

1. However, I do not need to consider these discretionary issues and therefore say no more about them. Nor do I need to say anything about the strength of the claim for mandamus, although it is appropriate to note that mandamus lies only to enforce the performance of a legal duty. The legal duty asserted here (implicitly at least) is a duty to grant summary judgment in proceeding SC 239 of 2020 (not merely to consider doing so). Thus, to obtain the relief he seeks, it would be necessary for Mr Ezekiel-Hart to establish, not only that Mossop J fell into error on 4 February 2022 or that granting summary judgment is the preferable course, but that Mossop J was (and the Court now is) bound in law to take that step. Given that the relevant power is discretionary, and to be exercised sparingly, that is a tall order.

1. Those issues do not need to be explored further because it is clear, in my view, that this Court has no power to grant mandamus in a case such as this.

1. The fundamental problem is this. When he made his procedural decision on 4 February 2022, Mossop J was exercising the original jurisdiction of this Court. He was not purporting to exercise any power conferred on him as an individual. He was sitting as a single Judge, exercising the jurisdiction of the Court pursuant to s 8 of the Supreme Court Act. Mr Ezekiel-Hart’s application in the present case is brought in the same Court (which consists of the Chief Justice and the other Judges: Supreme Court Act s 3(3)) and invokes the same jurisdiction, with the result that the Court is being asked to exercise supervisory jurisdiction over, and make orders against, itself.

1. There is ample authority that, in the absence of specific statutory power, that simply cannot be done. So much is established by Re Jarman; Ex parte Cook (1997) 188 CLR 595, 603–604 (Brennan CJ), 608–610 (Dawson J), 637 (Gummow J), 650 (Kirby J) (Jarman). The Full Court of the Federal Court recently applied the principle in Nyoni v Bird [2022] FCAFC 61 (Nyoni) and rejected an argument that the observations in Jarman were obiter: at [44] and [48] (McElwaine J, Mortimer and Rofe JJ agreeing). Mandamus is an order issued (in an appropriate case) by a court having supervisory jurisdiction over an administrative decision maker or an inferior court. It is not available as a form of self-supervision, or as a method by which one judge of a court can overturn a decision by another judge of the same court.

1. Relevant passages in Jarman and Nyoni refer to the relevant limitation as one of jurisdiction. That was no doubt correct in those cases, which concerned federal courts whose jurisdiction was necessarily statutory and limited. In a court of general jurisdiction, such as the Supreme Court of a State, it may not be correct to describe the relevant limitation as jurisdictional. However, there is no doubt that the limitation applies beyond the particular sphere of federal jurisdiction. That is demonstrated by the fact that one of the leading cases cited in Jarman was a decision of the English Court of King’s Bench in R v Justices of the Central Criminal Court; Ex parte London City Council [1925] 2 KB 43. See also, more recently, the decisions of State courts in Barton v Walker [1979] 2 NSWLR 740, 756 and Saad v Commissioner of the Australian Federal Police [2021] VSCA 246; 361 FLR 261, [144]. If the limitation does not go to the jurisdiction of a court, it clearly does limit the power of that court to grant relief. I will describe the relevant limitation as one on the power of the Court, and leave for another day whether it is jurisdictional (noting that that question may involve large issues about the character of the jurisdiction conferred by s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) and s 20 of the Supreme Court Act).

1. I add that it would make no difference if, as Mr Ezekiel-Hart suggested might be done, the present case were listed before a Full Court. No doubt, the original jurisdiction of this Court can be exercised by a Full Court (Supreme Court Act s 13). However, that would not resolve the difficulty inherent in the Court as an institution being asked to review a decision made by the same institution.

1. In oral submissions Mr Ezekiel-Hart referred to the Administrative Decisions (Judicial Review) Act 1989 (ACT) (the Judicial Review Act) and suggested that ss 4 and 8 of that Act might overcome the constraint on this Court granting judicial review remedies against itself. Section 4 provides that the Judicial Review Act has effect despite anything in any pre-existing enactment; while s 8(1) provides that rights under that Act are additional to any other review rights. The difficulty with that submission is that the Judicial Review Act grants rights of review only in relation to a defined category of decisions, identified in the definition of “decision to which this Act applies” in the Dictionary to the Act. These are decisions “of an administrative character made, proposed to be made or required to be made… under an enactment”. The decision sought to be reviewed here was made by a Judge of this Court in the exercise of judicial power, and clearly does not come within the scope of the Judicial Review Act.

1. Mr Ezekiel-Hart also sought to avoid the operation of the principle identified in Jarman (above) by submitting that there was a precedent in this Court for allowing judicial review of the decision on an application akin to an application for summary judgment. The decision to which he referred was the judgment of McWilliam AsJ, referred to at [2] above. As noted above, one of the applications dealt with by her Honour was an application by Mr Ezekiel-Hart to set aside a decision by a Deputy Registrar not to enter a default judgment. However, consideration of her Honour’s reasons reveals three things. First, the decision in question was made by a Registrar and not by one of the judicial officers who comprise the Court. Judicial review of decisions made by registrars of superior courts is far from unknown and does not give rise to the conceptual difficulty of a court exercising supervisory jurisdiction over itself. Secondly, the application was unsuccessful; so that, to the extent her Honour said anything about the availability of judicial review, it was obiter. Thirdly, although her Honour dealt with the application on the footing that it was an application for judicial review, she also considered it in the alternative as in substance an appeal from the Deputy Registrar’s order pursuant to r 6256 of the Rules (see at [17], [56]). Nothing in her Honour’s reasoning is inconsistent with the principle drawn from Jarman which now stands in the way of Mr Ezekiel-Hart’s application.

1. For these reasons, the Court cannot grant the relief sought even if persuaded that Mossop J fell into error or that Mr Ezekiel-Hart has a strong case for summary judgment in proceeding SC 239 of 2020.

1. Turning to the question of appropriate orders, I do not think it is appropriate for the Court to decline to exercise jurisdiction even if it has power to do so. Nor do I think that the Court altogether lacks jurisdiction to deal with the Originating Application. If the limitation I have discussed above is properly understood as one that goes to the Court’s jurisdiction, a superior court nevertheless has jurisdiction to determine whether it has jurisdiction to deal with a matter (and dismiss a proceeding if it does not). For reasons outlined above, I consider that the precise jurisprudential character of the limitation need not be, and therefore should not be, determined in this case. On any view of that question, the proposed relief cannot be granted and the proceeding should therefore be dismissed.

Order

1. The order of the Court is therefore that the Originating Application is dismissed. I will hear the parties on costs.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kennett

Associate:

Date:

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Amendments

14 June 2022             Delete first occurrence of the word “that” in the fourth sentence. Paragraph: [23]