Ezekiel-Hart v Council of the Law Society of the ACT & Anor
[2021] ACTSC 133
•30 June 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ezekiel-Hart v Council of the Law Society of the ACT & Anor |
Citation: | [2021] ACTSC 133 |
Hearing Date: | 26 November 2020 |
| Submissions last received: Decision Date: | 10 December 2020 30 June 2021 |
Before: | McWilliam AsJ |
Decision: | See [163] |
Catchwords: | JUDICIAL REVIEW – DEFAULT JUDGMENT – where Registrar declined to consider application for default judgment – where defendants were in default but foreshadowed intention to apply for summary judgment – no error established PRACTICE & PROCEDURE – INTERLOCUTORY APPLICATIONS – strike-out and summary judgment – whether reasonable cause of action disclosed – whether issue estoppel conclusively operates – whether proceedings otherwise an abuse of process – whether plaintiff should be declared a vexatious litigant |
Legislation Cited: | Court Procedures Act 2004 (ACT) s 5A |
Cases Cited: | Attorney-General v Chan [2011] NSWSC 1315 Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; 236 ALR 665 Blair v Curran [1939] HCA 23; 62 CLR 464 |
Parties: | SC 239 of 2020 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) SC 321 of 2020 Emmanuel Tam. Ezekiel-Hart (Plaintiff) The President of the Law Society of the ACT (First Defendant) Council of the Law Society of the ACT (Second Defendant) Deputy Registrar Supreme Court of the Australian Capital Territory (Third Defendant) |
Representation: | Counsel Self-represented (Plaintiff) T Power (Second and Third Defendants SC 239 of 2020, First and Second Defendants SC 321 of 2020) |
| Solicitors Self-represented (Plaintiff) McInnes Wilson (Defendants) | |
File Number: | SC 239 of 2020 and SC 321 of 2020 |
McWilliam AsJ:
The plaintiff in each of the two proceedings before the Court is a qualified solicitor. He says that he has been admitted to the Roll of this Court since 2003. He does not currently hold a practising certificate, which is a source of much consternation for him as it affects his ability to earn a living. He has been involved in numerous litigated disputes with the Council of the Law Society of the Australian Capital Territory (Law Society), its officers and agents. The Law Society and its President are defendants in each of the present proceedings, with the addition of the Deputy Registrar of this Court as a third defendant in proceedings SC 321 of 2020.
Proceeding SC 239 of 2020 (the first proceeding) was commenced by way of Originating Claim filed on 3 July 2020. The accompanying Statement of Claim contains allegations against the Law Society and its President directed to establishing negligence and a separate statutory cause of action pursuant to the Human Rights Act 2004 (ACT) (Human Rights Act). By application filed on 31 August 2020, the defendants in the first proceeding have sought to summarily dismiss the proceeding and further, to have the plaintiff declared a vexatious litigant pursuant to s 67A of the Supreme Court Act 1933 (ACT) (Supreme Court Act).
Proceeding SC 321 of 2020 (the second proceeding) was commenced on 8 September 2020 and it arises out of a procedural dispute in the first proceeding. The plaintiff sought default judgment in the first proceeding on 30 August 2020. For reasons explained below, on 3 September 2020 the Deputy Registrar declined to enter default judgment and the plaintiff now seeks to compel the Deputy Registrar to make such an order through judicial review of that decision.
The Deputy Registrar has filed a submitting appearance. Given that the Law Society and the President in the first proceeding are also the only active defendants in the second proceeding, they are collectively referred to in these reasons as the defendants.
Issues
It has been convenient to deal with the issues in the order they were argued. They are as follows:
(a) Whether an order should be made compelling the Deputy Registrar to enter default judgment in the second proceeding (Issue 1);
(b) Whether the Court should strike out (Issue 2a) or summarily dismiss (Issue 2b) the first proceeding;
(c) Whether the Court should declare the plaintiff to be a vexatious litigant and if so, the form any subsequent order should take (Issue 3).
As the resolution of the first two issues has a bearing on the Court’s discretion whether to declare the plaintiff a vexatious litigant, I have dealt with that question last.
Issue 1: Should the Court make an order compelling the Deputy Registrar to enter default judgment?
Although that is the ultimate issue for determination, the path by which one arrives at an answer requires some exposition. It is first necessary to clarify the nature of the Court’s present task and the procedure adopted by the plaintiff.
The decision under review
The plaintiff’s complaint (as articulated in the Originating Application) is that the defendants were in default because they failed to file a defence. The plaintiff filed for default judgment, and complied with the procedural requirements for doing so, yet the Deputy Registrar did not enter default judgment. Instead, on 3 September 2020, the Deputy Registrar made the following decision:
Your application for judgment will remain on file until the [defendants’] application in proceeding is heard. The application is listed on … 18 September 2020 at 10am.
The present application is for judicial review of that decision. The Statement of Claim does not further identify any ground for review, but from the oral and written arguments made, it appears that the substance of the complaint is that the procedural course taken by the Deputy Registrar in deferring consideration of the application for default judgment was legally wrong.
The plaintiff did not give any particular attention to what is a necessary part of the Court’s task on judicial review, being the identification of a legal error. The defendants generally submitted there was no error. I have approached the dispute on the basis that the substance of the plaintiff’s complaint could be described as an error of law in any of a variety of ways. For example:
(a) that the decision of the Deputy Registrar was an unreasonable one (in the sense described in House v The King (1936) 55 CLR 499 at 505);
(b) that the Deputy Registrar exercised his jurisdiction based on a misapprehension of the relevant procedural rule;
(c) that there was a denial of procedural fairness in failing to enter judgment to which the plaintiff was entitled; or
(d) that the Deputy Registrar considered an irrelevant matter in taking into account subsequent submissions made by the defendant.
In this case, although nothing turns on the precise legal error being asserted, the identification of legal error has been emphasised because it is a necessary pre-requisite to any grant of relief by way of judicial review in the second proceeding.
By contrast, the Court Procedures Rules 2006 (ACT) (Rules) provide for the Court to supervise the orders made by registrars in proceedings. If the registrar (including a deputy registrar) makes an order in a proceeding, r 6256 provides that a party who is dissatisfied with the order may appeal to a judge or the associate judge. The appeal is “a rehearing of the matter anew”: r 6256(4). The Court “may confirm, amend or set aside the registrar’s order”, and may make any other order considered to be appropriate: r 6256(7).
In the present case, as will be seen from the procedural chronology set out below, the Deputy Registrar had in fact decided at a directions hearing on 31 August 2020 not to consider the application until a foreshadowed application by the defendants was filed and heard. That decision was effectively confirmed by the email correspondence on 3 September 2020 (set out at [8] above).
It might be argued that because there was no order directly dealing with the issue of default judgment from which the plaintiff could appeal pursuant to r 6256 of the Rules, the appropriate course was to commence fresh proceedings by way of judicial review.
However, while the course taken by the plaintiff was not clearly inappropriate, it was in fact the making of orders by the Deputy Registrar on 31 August 2020 – giving the defendants 7 days to file any application in proceeding, rather than entering default judgment on that day – that was the order from which an appeal could have been brought pursuant to r 6256.
That is significant because the Court’s exercise of its supervisory jurisdiction to conduct judicial review is limited to dealing with an error of law, whereas an appeal brought under r 6256 permits the Court to deal with the matter “anew”; it is not necessary to first establish that there was any legal error.
As the plaintiff was self-represented and not a currently practising solicitor, I have dealt with the application as being one for judicial review, as that is how it seems to have been treated by the defendants. However, in the alternative, I have also given consideration to the application as being in substance an appeal of the Deputy Registrar’s order on 31 August 2020.
The power to enter default judgment
The next step is to consider the power that was being exercised by the Deputy Registrar. Rule 1118(1) of the Rules provides that if a defendant is in default, a plaintiff may apply to the Court for default judgment to be entered. If such an application is made, the Court may enter judgment in favour of the plaintiff without a hearing: r 1118(6).
When making an application for default judgment, there are various requirements that a plaintiff must satisfy in terms of the contents of the accompanying supporting affidavit. Those requirements vary depending on the nature of the claim for relief. The Rules deal with particular forms of relief, such as debt or liquidated demands, damages, detention of goods and recovery of possession of land: see rr 1120-1124.
The plaintiff’s claim for relief in the first proceeding includes a declaration, three separate apologies, damages, and costs. As the present claim is not covered by any rule dealing with a particular form of relief, it is governed by the general provision for “other claims”, namely r 1126.
The Rules required that two affidavits be filed with the application for default judgment. The first was an affidavit of service: r 1119(1)(a). The second was an affidavit in support: r 1119(1)(b). The affidavit in support was required to include statements that the proceeding has not settled and statements of the costs claimed: r 1126(3).
On an application made for default judgment in respect of a claim that is not specifically dealt with in another rule, pursuant to r 1126(2):
… the court may enter the judgment it considers is justified on the plaintiff's claim for relief even if the judgment was not claimed.
The default judgment process might thus be described as a mechanism to resolve proceedings without a hearing where the matter is deemed to be undefended due to the conduct of the defendant, namely failing to appear in the proceeding at all, or failing to file a defence. There is a more detailed discussion of what is deemed to have been admitted (so as to produce the conclusion that the proceedings are undefended) in Australian Competition and Consumer Commission v Dataline.Net.Au PtyLtd [2006] FCA 1427; 236 ALR 665. In that case, Kiefel J (then a judge of the Federal Court) made the point (at [44]), when considering a procedural rule with relevant similarity to r 1126 here, that such a rule does not deem a respondent to have conceded the relief sought. What is deemed to have been admitted is the allegations of fact in the plaintiff’s claim. Here, however, the Deputy Registrar did not even get to the point of considering the application for default judgment. As such, the consequences of the rule, in terms of either a deeming provision or the nature of the relief available, do not require further consideration.
Through a combination of rr 1118(6), 1119(1) and 1126(3), nothing more was required to be put before the Court than that: (a) the defendants had been served, (b) they were in default, and (c) the proceedings had not settled. In such circumstances, there may be an argument that the role of the Deputy Registrar, as delegate of the Registrar, is merely to satisfy himself or herself that the affidavit and the form of judgment are regular and, if so, the Deputy Registrar is required to enter judgment in the plaintiff’s favour.
However, at least when considering the applicable rule here (r 1126(2) of the Rules, which uses the language ‘may’), the power to enter default judgment clearly includes a discretionary element. Accordingly, whether the Registrar enters judgment or not upon application by a plaintiff is ultimately discretionary, not mandatory. In Wiedenhofer v The Commonwealth [1970] HCA 54; 122 CLR 172 (Wiedenhofer), Gibbs J (as his Honour then was) was required to consider a procedural rule in the High Court which was in similar terms to the rule presently under consideration here. The circumstances were also similar to those here, where a defendant had failed to file a defence in time. Gibbs J held (at 174) that there remains a discretion in the Court to refuse to enter judgment for the plaintiff where it is apparent that a defendant wishes to defend the action in the ordinary way. His Honour went on to find at 174-175:
In the present case, where I have before me not only a motion for judgment but also a motion for extension of time for filing the defence, and where a defence has in fact been delivered although out of time, and there is no ground to suggest that this defence is merely frivolous or filed for the purpose of delay and an explanation has been given for the failure to deliver it within time, in my opinion it would lead to an injustice to take any other course than to grant a reasonable extension of time and to refuse the motion for judgment.
In an ex tempore judgment given by Hayne J in Theunissen v Government of Commonwealth of Australia & Anor [2004] HCATrans 197 (Theunissen), his Honour cited that principle derived from Wiedenhofer before going on to state (at lines 435-437):
The plaintiff is not entitled as of right to the judgment to which, upon the writ or statement of claim, he is entitled on demonstrating no more than that the defendant is in default in delivering a defence.
Were the defendants in default?
The relevant procedural chronology is as follows.
On 3 July 2020, the plaintiff commenced the first proceeding, serving the Originating Claim and accompanying Statement of Claim on the defendants on 21 July 2020.
On 13 August 2020, the defendants filed an unconditional notice of intention to respond.
On 28 August 2020, the defendants wrote to the plaintiff advising that they were in the process of preparing an application seeking strike out of the claim, summary judgment and a declaration that the plaintiff is a vexatious litigant. For convenience, I will describe this foreshadowed application as the ‘strike-out application’, even though what is sought is broader than that relief.
On 30 August 2020, the plaintiff emailed to the Court an application for default judgment Form 2.35, along with affidavit of service and a supporting affidavit for the order sought. The orders sought were:
1.The plaintiff recover against the defendant damages to be assessed.
2.Declaration that the Defendants treated the Plaintiff with distinction.
3.The plaintiff recover against the defendant costs as agreed or assessed.
On 31 August 2020, the proceeding came before the Deputy Registrar for first directions. The matter was adjourned to 21 September 2020 with a direction to the defendants to file any applications within 7 days.
The strike-out application that is presently for determination in the first proceeding was filed later that day, however it was not served until 9 September 2020.
In the meantime, on 3 September 2020, the Deputy Registrar communicated by email to the plaintiff that the application would “remain on file” until the hearing of the defendants’ application in proceeding. The application was then listed for hearing on 18 September 2020.
On 8 September 2020, the plaintiff commenced the second proceeding, serving it on the defendants on 11 September 2020. The second proceeding was then also listed on 18 September 2020. On that date, directions were made for it to be heard with the defendants’ strike out application in the first proceeding.
On 22 September 2020, the defendants filed a defence in the first proceeding.
Those are the circumstances in which the Court comes to consider the Deputy Registrar’s decision.
Rule 102(1)(a) of the Rules relevantly provides:
(1) In a proceeding started by an originating claim, a defendant must file any notice of intention to respond, defence, or notice of intention to respond and defence, not later than the later of the following:
(a) 28 days after the day the claim is served on the defendant;
The remainder of the rule is immaterial here.
As the defendants had been served with the claim on 21 July 2020, they had until 18 August 2020 to file any notice of intention to respond and defence. Only the notice of intention to respond was filed during that time.
There was an oral submission made by the defendants that filing a notice of intention to respond was sufficient, because of the wording of the above rule. Such a submission misconceives the rule. Rule 102 does permit a notice of intention to be filed without a defence in an appropriate case. That is because r 100 provides that, absent leave of the Court, no step may be taken by a defendant in a proceeding unless either a notice of intention to respond or a defence has been filed. Defendants who wish to take a step in a proceeding prior to filing a defence (in order to first seek summary judgment, for example) must first appear on the record and that is done through the filing of a notice of intention to respond. However, any defendant who intends to join issue with the allegations in an originating claim must file a defence within the time provided by r 102 unless the court otherwise orders, as is made clear by r 103(2) of the Rules.
Rule 103 is in the following terms (notes omitted):
Notice of intention to respond or defence—late filing or service
(1) A defendant may file and serve a notice of intention to respond or defence at any time before judgment, even if the notice or defence is served or filed after the time limited by rule 102.
(2) If a defendant to an originating claim files and serves a notice of intention to respond after the time limited by rule 102, the defendant is not entitled to any extra time for filing and serving a defence or for any other purpose, unless the court otherwise orders.
In the present case, the Court did not “otherwise order”. No order for an extension of time was sought by the defendants.
Moving then to consider whether the conduct constituted ‘a default’, r 1117 of the Rules relevantly provides (emphasis added, notes omitted):
When is a defendant in default—generally
(1) For this division, a defendant is in defaultin relation to a plaintiff's claim for relief if—
(a) for a proceeding started by originating claim—
(i) the defendant does not file a notice of intention to respond or defence within the time required by rule 102 …; or
(ii) the defendant files a notice of intention to respond within the time required by rule 102 or any further period agreed by the parties or allowed by the court, but does not file a defence within the time required by rule 102 or any further period agreed between the relevant parties or allowed by the court; or
(iii) the defendant files a conditional notice of intention to respond that becomes an unconditional notice of intention to respond but does not file a defence within the time required by rule 111 (Conditional notice of intention to respond) or any further period agreed between the relevant parties or allowed by the court; or
(iv) the defendant files a defence but the court orders the defence to be struck out; and
(b) for a counterclaim …
(c) for a third-party notice …
(2) However, the defendant is not in defaultin relation to the plaintiff's claim for relief if—
(a) for a proceeding started by originating claim—
(i) the proceeding is stayed under rule 1102 …; or
(ii) the defendant files a statement under rule 1104 …; or
(iii) the defendant files a defence after the time required by rule 102 or any further period agreed between the relevant parties or allowed by the court, but before a default judgment is entered against the defendant; or
(b) for a counterclaim …
(c) for a third-party notice …
Applying r 1117(1)(a)(ii) as set out above, from 19 August 2020, the defendants were in default.
Applying r 1117(2)(a)(iii) above, the defendants remained in default until 22 September 2020, when a defence was filed.
Did the plaintiff comply with the formal requirements for having default judgment entered?
The defendants did not raise any argument that the documents filed by the plaintiff did not satisfy the requirements under the Rules. I note that the affidavit in support does not expressly state that the proceedings had not settled (as required by r 1126(3) of the Rules), although perhaps that state of affairs may have been inferred from its contents. It is also questionable whether the form of the orders sought is regular. However, as these were not addressed by the parties, I have passed over those matters in considering the judicial review application.
Did the Deputy Registrar err in deferring consideration of the application?
As at 31 August 2020, when the matter came before the Court, the defendants were in default. An application for default judgment had been made. The defendants did not remedy the default by seeking an extension of time before the Deputy Registrar. There was no strike-out application in proceeding filed by the defendants, although one was foreshadowed. As such, there was no procedural barrier to default judgment being entered on that day.
Without more, the Deputy Registrar may have been in error to simply defer consideration of the application for default judgment on 3 September 2020 (after corresponding with the plaintiff about matters relevant to the affidavit of service).
However, it is not the case that the Deputy Registrar simply ignored the application. The reasons for the course taken by the Deputy Registrar on 31 August 2020, confirmed on 3 September 2020, are apparent from the contents of the email communication. The Deputy Registrar took into account that following the plaintiff’s emailed application for default judgment, the defendants had appeared in Court the next day at a directions hearing and indicated their intention to file an application in proceeding to strike-out the claim, and had filed such a document shortly thereafter. In light of what he had been told by the defendants’ legal representative on 31 August 2020, the Deputy Registrar had a choice whether to permit the strike-out application to be filed and heard by delaying dealing with the plaintiff’s application for default judgment, or to proceed to enter default judgment in the knowledge that the defendants wished not only to oppose the claim, but were intending to seek to strike it out.
In Goldberg v Morrow [2003] VSCA 127 (Goldberg), the Court of Appeal in the Supreme Court of Victoria dealt with an application for leave to appeal, where one of the proposed grounds of appeal was that there was a refusal to deal with an application for judgment in default of defence, and that instead the primary judge had first dealt with an application to strike out the Statement of Claim. Ormiston JA (Batt JA agreeing) stated at [12]-[13] (emphasis added):
… the Court does not ordinarily enter a default judgment where it is pointless do so because a defendant is seeking genuinely on a tenable basis to defend the proceeding. In other words, whatever the technical failure of the defendant may be, a default judgment serves no purpose and the failure can properly be taken into account only on other questions of discretion, such as the question of costs. It is this well known kind of consideration which formed the basis for the [court’s] approach, though not expressly stated.
It is so well known a principle of practice in this area (that is in the area of default judgments), that it would serve no purpose to examine all the authorities which have expressed it. They are usefully set out in the practice books and, in particular, to the annotation to Orders 22.01 and 22.02 of the Rules in Williams Supreme Court Practice. They include cases such as the decision of the Court of Appeal in Redditch Building Society v. Roberts [[1940] Ch 415], where it is said that a default judgment should never be ordered "where the defendant is before the Court...and is anxious to put himself in a position to defend" the proceedings, whatever the technical position might be. That authority related to judgments in default of appearance, but, not only is it consistent with other authorities relating to rules such as Order 22.01, but what was there said is likewise the principle behind the similar approach to judgments in default of defence: See by way of example: Gill v. Woodfin [(1884) 25 Ch. D 707]; Gibbings v. Stirling [(1884) 26 Ch. D 66] and in particular Wiedenhofer … a decision of Gibbs, J., of the High Court, as he then was. Of course, it must be seen that the defendant has a genuine answer to the plaintiff's claim and how that is shown will depend on all the circumstances. Where, as here, objection is made to the form and substance of the statement of claim, then that ordinarily will be sufficient, if it can be seen that the objection is reasonably arguable. I should explain further, if it be necessary, that one reason for the Court's approach is that it would be a waste of time and money to allow a default judgment and then to require it to be set aside, where the nature of the defence or objection to the claim is obvious. Ordinarily, it is not difficult to show sufficient facts or legal argument, if there is a genuine defence, to have a default judgment set aside. Not only would the process result in further expenditure of money and time, but it would allow a judgment on the records of the Court which should not be maintained, a matter which may reflect on the reputation or solvency of a particular defendant.
The defendants submitted that it was open to the Deputy Registrar to make a determination that the defendants’ strike out application be heard prior to making a decision in relation to the application for default judgment. In light of the authorities referred to above, that submission must be accepted.
Once the defendants’ position was communicated to the Court on 31 August 2020, it was open to the Deputy Registrar, in the circumstances of this case, to allow the foreshadowed dispute raised by the defendants to be determined, notwithstanding that it had not yet been filed. Those circumstances included the fact that this was the first return date of the substantive claim, that a strike-out application was an obvious defence to the claim pleaded, and that the filing of the strike-out application was to be made promptly.
The decision on 3 September 2020 that is the subject of challenge is consistent with the same procedural approach, and the course taken by the Deputy Registrar was open for the same reason; in particular, for the reason set out in the emphasised words in the above extract from Goldberg. The decision of the Deputy Registrar may be properly seen as an application of s 5A(3) of the Court Procedures Act 2004 (ACT), to the effect that any power exercised under the Rules must be exercised or carried out in a way that best promotes the purpose of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
Accordingly, there is no discernible legal error in the Deputy Registrar deferring consideration of the application for default judgment until the strike-out application had been dealt with by the Court.
Even if I had found legal error, or if the issue had been decided as an appeal under r 6256, it is not appropriate for the Court to now make an order in the nature of mandamus, directing the Deputy Registrar to enter default judgment against the defendants with effect from 31 August 2020. That is because the defendants are no longer in default, having filed a defence on 22 September 2020.As held by Gibbs J in Wiedenhofer at 175, extracted above, “it would lead to an injustice to take any other course” than to permit the defendants to defend the claim through the hearing and determination of the strike-out application.
The second proceeding will therefore be dismissed but I do not consider it appropriate to make any order that the plaintiff pay the defendants’ costs of the second proceeding, as sought by the defendants. It is uncontroversial that the defendants were in default when the application for default judgment in the first proceeding was made. They were still in default at the time the second proceeding was commenced. The defendants may have had an explanation for why they were in default, but it was a somewhat cavalier approach to allow a time limit stipulated in the Rules to pass on 18 August 2020 without doing anything to preserve their position. The defendants should have either filed the application seeking to strike out the claim before that date passed, or alternatively sought an extension of time in which to file a defence, if the plaintiff did not consent to the time being extended.
It is no answer to point to correspondence sent to the plaintiff on 28 August 2020 as putting the plaintiff on notice of an intention to file a strike-out application. Nowhere in that correspondence is there a request to either refrain from seeking default judgment or to consent to extending the time for the filing of a defence. Further, it is unclear from the affidavit of Ms Binstock, solicitor on the record for the defendants, why the strike-out application that had been filed on 31 August 2020 was not served upon the plaintiff until 9 September 2020. If the defendants could not serve the sealed copy of the application in a timely manner for reasons outside their control, an unsealed document could have been provided to the plaintiff so that he was at least on notice of the application that had been filed. Instead, the plaintiff received email correspondence from the Deputy Registrar on 3 September 2020 referring to an application in proceeding that he had not seen. By 8 September 2020 he still had not been served and accordingly, filed the second proceeding. It seems that the second proceeding could have been entirely avoided had the defendants complied with the time limits provided by the Rules, sought an extension of time, or filed and served their strike-out application in a timely manner. For these reasons, no order as to costs should be made, to the intent that each party pay their own.
Issue 2a: Should the first proceeding be struck out?
I have dealt with what might be characterised as pleading points raised by the defendants first, as those arguments are fairly straightforward. The defendants submitted on their application that the Statement of Claim discloses no reasonable cause of action, is embarrassing and largely incomprehensible, contains much scandalous and vexatious material and the proceedings generally are an abuse of the process of the Court.
The plaintiff’s claim
The claim in the present case is somewhat difficult to follow. Set out below is an attempt to present the allegations as I have understood them, stripped of superfluous language which may be apt to confuse or mislead. The first seven paragraphs detail the plaintiff’s background, that the plaintiff has not had any complaints made about his work, the lack of any criminal convictions, and matters about his contributions to the community and service to Australia, all of which appear to be directed towards the plaintiff being a fit and proper person.
The plaintiff then alleges in paragraph [8] of the Statement of Claim that the defendants administer a public body and instrumentality of the Territory.
It has proven difficult to summarise the contents of paragraphs [9]-[12] in a way that captures the substance of the allegations. They are best set out as pleaded:
[9] The first defendant contrary to the Human Rights Act … made a written opinion of the Applicant/Plaintiff stating that “if the law cannot create justice for the Black, the Black shall create justice out of the law” with the stamp of the society and the name of the Applicant, and used same to ridicule, bully, victimize and indefinitely detain the [practising] certificate application of the plaintiff till the new financial year commencing 1 July 2020 passed, and the Plaintiff/Applicant is a victim and would be victim, of the continued detention of the practising certificate.
[10] The first defendant contrary to the Human Rights Act … made a new unwritten law and policy characterised with systemic discrimination, with distinction treatment, unfavourable treatment and victimization of Black lawyers and the Plaintiff/Applicant is a victim and would be victim, the new law is carried out under the supervision of the Second Defendant.
[11] The unwritten new law made for Black African lawyers states as follows from the effect of its application: That the law society shall at sight of a Black African lawyer, if such Black lawyer should be eliminated, that the Law Society shall do all it takes to treat him unfavourably, humiliate him, victimize him and if it so requires create false very serious and dangerous allegation against him or her to tarnish his or her image and where possible bully or kill him or her, any Member of the law society or its servant who so acted shall be free on arrival at the Supreme Court.
[12] This law was brought to the attention of the ACT Supreme Court before The Honourable Acting Justice Crowe in 2019 and seeking protection of the Court and the ACT government to prevent continuation of the offensive law and policy, at the inception of this law in 2013 and applied through Mr Reis the Plaintiff’s certificate was held for seven (7) years without any finding of guilt from any Court of law or Tribunal in the whole world.
Paragraphs [13]-[17] refer to “tactics” adopted by a former president of the Law Society, with an allegation that the defendants have held on to the plaintiff’s application for a practising certificate until the financial year commencing 1 July 2020 has already begun. It is alleged that the purpose of delaying a decision about the plaintiff’s application is to “strangulate the plaintiff economically”. It is further alleged that the conduct was with malice.
Paragraph [18] alleges that the defendants denied the plaintiff the benefit of s 37(3) of the Legal Profession Act 2006 (ACT) (LP Act) which (it is alleged) “gives every lawyer a right to work till a decision was made on their Application, as a matter of fairness to ensure the plaintiff keeps jobs pending a genuine decision”. A further allegation rolled up in paragraph [18] is that the denial of the right to work is to “ensure extensive injurious damage” to the plaintiff.
In paragraph [19] the plaintiff alleges that the application he made in 2017 is still waiting for a decision, and it is reasonably foreseeable that his current application made in June 2020 will not be determined without Court intervention. The plaintiff alleges he is a victim and would be a “victim of unfavourable treatment, with distinction and victimization”.
Paragraph [20] alleges that in taking the plaintiff’s human right to work away, “in a manner that was not demonstrably justified and not compatible with Human Rights in a free and democratic society”, the defendants contravened paragraph 6 of the Preamble of the Human Rights Act. The key particulars of that allegation include that the first defendant had previously “provided a malicious and dishonest memorandum against the plaintiff” and that the defendants acted on the said memorandum without investigation. Further, when asked to reconsider the plaintiff’s application, the defendants refused to do so.
Paragraph [21] alleges that the defendants had previously in February 2016 denied the plaintiff access to the building and amenities, and that the first defendant “admitted that he gave instruction for future denial of access and amenities to the plaintiff in the same terms it was willing to give other members of the public”.
Paragraph [22] alleges:
The defendants had previously denied the plaintiff [a practising] certificate in the same terms that it was willing to give other members of the Law Society and treat him with distinction and continue to treat him with distinction and unfavourably [to] date.
Paragraphs [23]-[28] explain the ways in which the plaintiff alleges the defendants abrogated his human rights. In summary, they include:
(a) Paragraph [23]: The Law Society and the President have communicated with members of the public since 24 September 2018, which had the effect of preventing the plaintiff from enjoying his human rights.
(b) Paragraph [24]: Law Society and the President refused the plaintiff access to the building and amenities in the same manner in which others were treated, which the plaintiff alleges contravened s 8 of the Human Rights Act. This is described by the defendants as the “access to building and amenities claim”.
(c) Paragraph [25]: Refusing the plaintiff services and maintaining an attack on the plaintiff’s reputation (including through “concocting” a term “lethal violence” and attributing such conduct to the plaintiff), contrary to s 12(b) of the Human Rights Act.
(d) Paragraph [26]: Failing to interpret the LP Act in a manner compatible with the plaintiff’s human right not to be treated with distinction and discriminated against in any way, which is said to contravene s 30 of the Human Rights Act.
(e) Paragraph [27]: Treating the plaintiff in a cruel and degrading way by endlessly refusing all options previously propounded by the plaintiff, taking away any option that might have enabled him effectively to earn a living as a solicitor.
(f) Paragraph [28]: Issuing a certificate to others to work in the same terms it was unwilling to give to the plaintiff, which the plaintiff alleges was contrary to s 10(1)(b) of the Human Rights Act.
Paragraph [29] alleges that on 13 September 2017 the defendants made a decision refusing reconsideration of the plaintiff’s application and refused to provide reasons for that decision. There is a further allegation that the plaintiff “is a victim” contrary to ss 40B and 40C of the Human Rights Act.
Paragraphs [30], [31] and [34] repeat the plaintiff’s complaint that he has a human right to work and that the defendants’ conduct breaches Art 6 of the International Convention on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976). In that regard, the plaintiff points to s 7 of the Human Rights Act, which provides that the Human Rights Act “is not exhaustive of the rights an individual may have under domestic or international law” and also to s 31, which provides that “international law, and the judgments of foreign and international courts and tribunals, relevant to a human right” may be considered in interpreting the human rights addressed in the Human Rights Act.
Paragraph [32] of the claim deals with causation. The plaintiff there alleges that the breaches of his human rights have caused him social isolation, and disintegration of his personality and reputation, as a result of being unemployed.
In paragraph [33] of the claim, the plaintiff repeats that the defendants have denied the plaintiff his human right to work, and alleges that this is in circumstances where others who have been found guilty of misconduct have kept the right to a “certificate to work”.
Paragraph [35] of the claim sets out the relief claimed by the plaintiff as follows:
(a)Declaration to vindicate the plaintiff
(b)Damages for injuries done to the plaintiff’s human rights including compensatory and aggravated damages
(c)Damages, compensatory and aggravated damages due to the Plaintiff’s economic losses of work
(d)Damage to plaintiff’s reputation feeling of worthlessness, being taken out of legal practice and regular meeting of all people that enhanced the plaintiff’s reputation and
(e)Loss of Court experience
(f)Special damages
(g)Interest
(h)Costs
(i)Apology.
In oral submissions made on 26 November 2020, the plaintiff explained that the declaration he sought was that he had been victimised. He further clarified that although the present pleading does not expressly refer to it (and nor does the Notice of a Human Rights matter), his complaints also concerned s 27B of the Human Rights Act, and in particular s 27B(1) and 27B(5).
No reasonable cause of action disclosed, including scandalous and embarrassing allegations
Paragraphs [10], [11], [17] and [20] of the Statement of Claim are said to contain scandalous material. Paragraphs [10] and [11] are part of the extract of the Statement of Claim set out at paragraph [62] of these reasons and it is plain that the defendants’ submission should be accepted. Paragraphs [17] and [20] are in a similar vein. Further, each of those four paragraphs contain rolled up allegations and are embarrassing. They will be struck out.
As to the remainder of the pleading, the judgment of Mossop M (as his Honour then was) in Picos v Commonwealth Bank of Australia [2015] ACTSC 56 contains a useful summary of when a pleading might fail to disclose a reasonable cause of action, at [47]- [48]:
The sense in which the pleading fails to disclose a cause of action is that, looking solely at what is pleaded, it fails to include all the elements of a cause of action: White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at [47]; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [23].
The various ways in which a pleading may be embarrassing were outlined by Johnson J in McGuirk v The University of New South Wales [2009] NSWSC 1424 at [30]-[35]. In Szanto v Bainton [2011] NSWSC 985 Ward J summarised the position as follows (at [107]):
What is meant by an embarrassing pleading in the context of an application such as the present relates, in essence, to whether the pleading can serve the function of a pleading under the Rules - namely, in succinct fashion, to put the defendant properly on notice of the real substance of the claim made against it and to know what case it is that the defendant has to meet. Thus a pleading is embarrassing if it is unintelligible, ambiguous, or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim or defence (Gunns Ltd v Marr [2005] VSC 251 at [14]- [15]) or if it contains inconsistent, confusing or irrelevant allegations (Shelton v National Roads & Motorists Assn Ltd [2004] FCA 1393; (2004) 51 ACSR 278; at [18]).
Of further assistance is the judgment of Bolas v Calvary Health Care Limited [2016] ACTSC 58 where Mossop AsJ (again, as his Honour then was) stated at [17]:
Pleadings are useful only if parties actually use them to expose rather than obscure the case that they seek to run. A failure to properly expose the case that is to be run is not only inconsistent with the particular obligations in the rules in relation to pleading but obviously inconsistent with the duties of parties under s 5A of the Court Procedures Act 2004 (Act) …
The Statement of Claim as summarised above has a number of difficulties.
First and foremost, the structure of the pleading is embarrassing, in the sense described above. 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. Some of those ambiguities are discussed below in the context of issue estoppel.
Second, the causes of action are also rolled up, so that the defendants do not know the facts material to each action. While the same facts may, of course, found separate causes of action, the elements of each cause of action must at least be capable of identification from the pleading. If a plaintiff seeks relief in relation to two or more distinct claims based on different grounds, they must be stated, as far as possible, separately: r 405(3) of the Rules.
The prime example of this in the present Statement of Claim is the plaintiff’s claim for damages, including special damages. It is not clear how the plaintiff claims an entitlement to seek those remedies. To the extent that the cause of action is said to be the Human Rights Act, that statute expressly does not provide for such a remedy. Where a cause of action is brought against a public authority under the Human Rights Act, or where the plaintiff relies on rights under the Human Rights Act in other legal proceedings, the Supreme Court may grant any relief is considers appropriate “except damages”: s 40C(4) of the Human Rights Act. The only other cause of action named by the plaintiff in the Statement of Claim is negligence. While the tort of negligence does permit remedies of damages, including special or exemplary damages, the elements necessary to establish that such a cause of action is available are not pleaded. The relief simply appears at the conclusion of the pleading.
Third, there are particular matters that must be pleaded for claims raising breaches of the Human Rights Act (rr 407A and 407B of the Rules). In summary, a defendant is entitled to be told:
(a) The particular human right the plaintiff says is in issue;
(b) The content of the right and any particular aspect of the right on which the plaintiff relies;
(c) The facts that are said to amount to conduct that breaches the right; and
(d) The relief sought.
Fourth, particulars sufficient to define the issues and enable the opponent to identify the case required to be met are necessary: r 430 of the Rules. To explain what that means for the present pleading:
(a) If the alleged conduct is an express refusal to do something, then the defendants are entitled to know particular facts, such as the date of the refusal, whether it was in writing and who sent the refusal.
(b) If the conduct is said to be implied, such as an inference that the plaintiff was treated differently because of his cultural background or colour of his skin, then the facts giving rise to the implication need to be specified. For example, that the inference arises because there was no other feature to distinguish the plaintiff’s application from other applicants who were granted a practising certificate.
(c) If an alternate case of malice or ill will is alleged, that allegation needs to be specifically pleaded in sufficient detail to support the fact: rr 407(1)(j) and 430(1)(c) of the Rules. If the malice is said to arise or be implied from a lengthy course of historical aggravation between the parties, which caused the defendants to adopt a policy of rejecting the plaintiff’s application regardless of its merit, then those matters need to be properly detailed.
The above deficits are sufficient to explain why I accept the defendants’ submission that the Statement of Claim ought be struck out pursuant to r 425 of the Rules.
Issue 2b: Should the first proceeding be summarily dismissed?
I have recently set out the established legal principles on an application for summary relief in Volanne Pty Ltd & Ors v Donohue [2021] ACTSC 48 (Volanne) at [6]-[8]. The same principles apply to the present application. I have set them out again for convenience:
[6] The grant of summary relief (whether in part or in whole) is a discretionary remedy, to be exercised with the utmost caution and only in very clear cases: O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [66]; Young v Hones [2014] NSWCA 337 at [163], citing General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 128-129. A case is not to be summarily dismissed unless there is a high degree of certainty that it would fail if it were allowed to go to trial in the ordinary way: Agar v Hyde [2000] HCA 41; 201 CLR 552 at [57].
[7] The principles applying to an application for summary judgment (whether in the plaintiff’s or in the defendant’s favour) have been set out in Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132 (Galovac) at [5] per Jagot J. Her Honour there helpfully collected the leading authorities from which the principles guiding the exercise of the Court’s discretion have emerged.
[8] The principles set out in Galovac are well-established: see Commissioner for ACT Revenue v Arcidiacono t/as Rose Cleaning Service [2017] ACTSC 379 at [18] per Murrell CJ; McColley v Commonwealth of Australia [2014] ACTCA 2014 at [31] per Murrell CJ, Refshauge and Penfold JJ; and Bolas v Calvary Healthcare Limited [2016] ACTSC 58 at [1] per Mossop AsJ (as his Honour then was). They include the following:
a) There is a very high threshold that must be met. The Court must be satisfied the claim is “obviously untenable”, in that there must be a high degree of certainty that there is no real prospect of success on all or part of the plaintiff’s claim.
b) The application is assessed on the substance, not the form or expression of the claim.
c) The necessity for argument, even extensive argument, is no bar to summary relief. However, as soon as it appears that there is a “real question” to be determined on which relief depends, the summary judgment procedure is not available.
d) On such a summary application the Court assumes that every fact pleaded by the plaintiffs is true.
Applying these principles, I have concluded that although the Statement of Claim should be struck out, it should not ultimately be summarily dismissed.
In order to explain that conclusion, each of the arguments raised by the defendants are considered below. The defendants argued that:
(a) The pleading contains repeated failed claims; and
(b) The proceeding is otherwise an abuse of process.
Does the pleading repeat failed claims?
Paragraphs [24] and [25] are said to repeat failed claims that have previously been made by the plaintiff in earlier proceedings. The defendants described the allegations as follows:
(a) Paragraph [24] is the “access to building and amenities claim” which was dismissed by the ACT Civil and Administrative Tribunal (ACAT) in November 2016: see Ezekiel-Hart v Reis & Anor (Discrimination) [2017] ACAT 3 (Ezekiel-Hart (Discrimination)).
(b) Paragraph [25] is the “lethal violence” defamation and human rights claims which were summarily dismissed by Crowe AJ in Ezekiel-Hart v Reis (No 2) [2019] ACTSC 192 (Ezekiel-Hart (No 2)).
The defendants submit those parts of the claim are an obvious abuse of process. I am not persuaded that is unarguably the case. The main reason is because the pleading itself is not clear, which makes it difficult to determine whether the plaintiff is in fact re-arguing previously determined matters.
The submissions in support of the defendants’ argument were somewhat lacking in detail to enable the Court to properly determine whether the argument was based on res judicata, Anshun estoppel, issue estoppel or some other basis. During oral argument, counsel for the defendants initially clarified that the contention was one of issue estoppel, but ultimately retreated from that aspect of the application altogether. It was not clear whether any part of the submission was ultimately still pressed. I have dealt with it out of abundant caution.
(i) The legal principles concerning issue estoppel
The legal principles relevant to issue estoppel are well established. The public policy considerations, namely that a person ought not to be vexed twice for the same cause and that there be a finality to litigation, were discussed in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242; 146 FCR 10 at [36].
In Ramsay v Pigram [1968] HCA 34; 118 CLR 271 (Ramsay), Barwick CJ stated at 276 (emphasis added):
… an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities … The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case.
The classic statement of the doctrine is to be found in Blair v Curran [1939] HCA 23; 62 CLR 464 (Blair) at 531-533 per Dixon J. An issue estoppel may be based on factual findings made for the purpose of some other claim or cause of action. In such circumstances, the estoppel arises only in respect of facts that are “legally indispensable to the conclusion”. On matters of fact, the issue estoppel “is confined to those ultimate facts which form the ingredients in the cause of action”: Blair at 532. To similar effect, in Rogers v The Queen [1994] HCA 42; 181 CLR 251 Brennan J referred to the principle in Blair at 532 before stating at 262:
… But issue estoppel does not extend to findings of fact which, though contested and probative of the ultimate issue, are not necessary to, or are not the legal foundation of, the decision made …
In Murphy v Abi-Saab (1995) 37 NSWLR 280 (Abi-Saab), Gleeson CJ (Kirby P and Rolfe AJA agreeing) stated that a practical test of determining whether a decision of fact or law is sufficiently fundamental to a judgment so as to create an issue estoppel is to ask whether it is possible to appeal against the finding (at 288). If a hypothetical appeal limited to the particular decision of fact or law would be “hopeless” because it would not be sufficient to overturn the judgment, then that indicates the finding was not the legal foundation of the judgment: Abi-Saab at 291.
(ii) Does an issue estoppel arise here?
The main difficulty for the defendants in making this submission arises from the words emphasised in the passage from Ramsay set out at [93] above, and the further authorities cited, which I consider help to explain what those words mean.
With regard to [24] of the Statement of Claim, being the “access to building and amenities claim”, the Ezekiel-Hart (Discrimination) decision does appear to involve the same facts relating to an incident at the office of the Law Society in 2016. The proceedings in ACAT were directed to a claim concerning a breach of the Discrimination Act 1991 (ACT). The plaintiff’s present claim relates to a breach under the Human Rights Act.
As the above authorities make clear, factual findings made in the course of determining a different claim may be the subject of an issue estoppel. However, the defendants’ argument did not go so far as to address whether the allegations in the present claim were ‘the legal foundation’ of the other decisions, so as to create the issue estoppel.
As I have said, in part, that is because the Statement of Claim is itself unclear. The material part of the allegation in [24] is that the defendants:
… treat the Plaintiff with distinction by refusing the plaintiff services, access to building and amenities and certificate in the same terms it was willing to give to others contrary to s 8 …
This may refer to conduct pleaded at [21] of the Statement of Claim, which occurred in February 2016, where the plaintiff alleges that the defendants denied the plaintiff access to the building and amenities. However, the allegation in [24] may be a reference to other conduct. There is also a further allegation of admissions by the defendants in 2016 about future denial of access and amenities to the plaintiff. The form of the pleading means that it is very difficult to establish issue estoppel with the precision required on an application made on a summary basis.
I have made some attempt to deal with the substance of the argument, but even then, it is not clear whether the matters of fact of which the plaintiff presently complains were the subject of a finding by ACAT. At [72] of Ezekiel-Hart (Discrimination), the reasons for decision gloss over the conduct concerning access to the building of the Law Society, referring to the access issue as “whatever problem the plaintiff had in submitting his online application”. That is not to be taken as any criticism of the Senior Member in ACAT – different cases call for different levels of fact finding. However, it does mean that I am unable to find that an abuse of process based on issue estoppel in respect of the present pleading is so obvious as to warrant summary dismissal.
At [73] of the reasons for the ACAT decision, there is an alternative finding stating that:
… Even if Mr Reis [the then President of the Law Society] did direct the early exit of the applicant from the secure area of the Law Society’s premises, there is no evidence that this was due to the applicant’s race or political conviction, that is, that either of these were reasons at all.
That begs the question as to whether the Tribunal’s alternative factual finding was the legal foundation of the decision.
The defendants’ submissions did not address the factual elements of the claim before the Tribunal. I am not satisfied the defendants have established any defence of issue estoppel by reference to the Ezekiel-Hart (Discrimination) decision on a summary basis.
A separate basis for issue estoppel arising may have been the judgment of Crowe AJ in Ezekiel-Hart (No 2). Again, this case was generally referred to by the defendants but not relied upon in any particular detail. The case involved the same plaintiff and one of the defendants here, namely the Law Society, was also one of the defendants in Ezekiel-Hart (No 2). Under the heading “Fact Finding”, Crowe AJ stated at [61]-[62]:
61. In relation to the [Human Rights Act] claim, I find that the provision of the memorandum to the Council and the decision to refuse the plaintiff’s application for a practising certificate occurred in the ordinary course of the second defendant carrying out its statutory functions …
62. As to the “exclusion” of the plaintiff from the [Law Society’s] premises on 23 February 2016, conflicting evidence has been provided …
His Honour then discussed the conflicting evidence before finding at [65]:
65. It is not necessary for the purposes of this case to resolve the inconsistency in timing in this evidence. What is apparent in my view is that the “exclusion” of the plaintiff from the secure area of the Law Society office occurred because of the long and difficult relationship between the plaintiff and the first and second defendants, and not because of his race or political convictions.
From the above, it can be seen that there was a factual finding made about exclusion from the Law Society’s premises not being related to race or political convictions.
Later in the judgment under the heading “Consideration”, Crowe AJ dealt with the claims under the Human Rights Act against (relevantly) the Law Society. His Honour set out the sections of the Human Rights Act relied upon by the plaintiff at [103], including:
103. The plaintiff relied upon the following sections of the HRA:
8. Recognition and equality before the law
...
(2) Everyone has the right to enjoy his or her human rights without distinction or discrimination of any kind.
(3) Everyone is equal before the law and is entitled to the equal protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground.
The conclusion in relation to that aspect of the claim is to be found at [106]-[107] of his Honour’s reasons:
106. Insofar as the plaintiff relies upon sub-s 8(3), it is true that he strictly required leave to do so given the orders made by the Associate Justice on 19 September 2018. I permitted him to rely on that subsection having regard to his circumstances and the absence of prejudice to the defendants.
107. However, that does not take the plaintiff any further, having regard to my finding of an absence of any discrimination against him as outlined in paragraphs [61] and [65] above.
Reading together the above extracts from Ezekiel-Hart (No 2), the allegations in [24] of the present Statement of Claim could be the subject of an issue estoppel. However, I am unable to conclusively find that an estoppel arises. Applying the practical test of issue estoppel described in Abi-Saab (outlined above at [95]), it is unclear whether an hypothetical appeal limited solely to Crowe AJ’s finding of an absence of discrimination would have been sufficient to overturn his Honour’s judgment. The claim based on breaches of the Human Rights Act was refused because Crowe AJ refused the plaintiff’s application to extend time under sub-s 40C(3) of the Human Rights Act: Ezekiel-Hart (No 2) at [83]. Although the refusal to extend time was on the basis that the claims were considered to be hopeless (on the evidence before the Court), there may be a question as to what factual findings were properly the ‘legal foundation’ for the judgment. That is, the factual findings that were necessary for the Court to determine that each claim was hopeless would need closer scrutiny than that which is appropriate on a summary basis.
The defendants did not address the detail of the arguments and factual findings before Crowe AJ. As a consequence, the plaintiff has not had an opportunity to address how the defendants contend an issue estoppel arises. In light of this, while I am prepared to accept that there is an argument for an issue estoppel arising of the kind outlined above, it is not appropriate to make any finding that such an estoppel so obviously operates in the present proceedings that paragraph [24] of the Statement of Claim should be struck out.
Similar reasoning applies to the defendants’ argument about the ‘lethal violence’ claim made in [25] of the Statement of Claim. The same two problems arise, being that the conduct in question is unclear in the pleading, and that the defendants did not address precisely how they say the issue estoppel arises.
Paragraph [25] of the Statement of Claim includes an express allegation of a breach of s 12(b) of the Human Rights Act, which provides for a person’s right not to have his or her reputation unlawfully attacked. The plaintiff alleges the maintenance of an “endless unlawful attack on the reputation of the plaintiff with attribution of ‘lethal violence’ contrary to s 12(b)”.
Assuming that the conduct in question is a reference to the words “lethal violence” used in a memorandum that was the subject of detailed consideration in Ezekiel-Hart (No 2), then the finding by Crowe AJ at [104] of his Honour’s reasons for judgment may be relevant:
It is immediately apparent from my findings as to fact and my consideration of the circumstances of the publication of the memorandum and attachments that there is no basis for the claims in relation to sub-ss 10(1)(b) or 12(b) …
Again, however, because the precise conduct is not clear from the pleading, the assumption (made by the defendants) that the conduct to which [25] of the Statement of Claim refers was the same as that addressed in Ezekiel-Hart (No 2) may be incorrect. Further, the defendants did not then tease out in written or oral argument what ‘findings of fact’ were essential to the rejection of any claim based on s 12(b) (or any other claim dealing with those same facts) in Ezekiel-Hart (No 2).
The onus is on the defendants to satisfy the Court that a strike-out or summary dismissal on the basis of issue estoppel is warranted. In respect of [24] and [25] of the Statement of Claim, that onus has not been discharged on the present pleading. If the plaintiff does have an opportunity to replead his claims (discussed below) or to further particularise the existing allegations, the defendants would not be precluded from revisiting the question of issue estoppel with respect to any fresh or amended pleading, once the allegations are clearer.
Is the proceeding otherwise an abuse of process?
What constitutes an abuse of process has been discussed in numerous authorities. The applicable principles may be drawn from cases such as Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529 (Hunter) at 536; Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; 259 CLR 212 at [60]; Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 (Tomlinson) at [22]. A Court has inherent power to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be:
(a) ‘manifestly unfair’ (Hunter at 536) or ‘unjustifiably oppressive’ (Tomlinson at [25]) to a party to litigation before it; or
(b) otherwise bring the administration of justice into disrepute.
The circumstances in which proceedings that comply with the rules of the court (being “the use of court processes”) will be found to amount to an abuse have been said not to “lend themselves to exhaustive statement”: UBS AG v Tyne [2018] HCA 45; 265 CLR 77 per Kiefel CJ, Bell and Keane JJ at [1].
In addition to the arguments already considered, the defendants contended that the Statement of Claim is otherwise an abuse of process for a number of reasons.
(i) Decision not yet made
First, the defendants submitted that the proceedings were an abuse of process to the extent that they seek to challenge a decision which had not yet even been made. In that regard, it was argued that the Statement of Claim refers at [19] to an undetermined application for an unrestricted practising certificate. The proceedings were commenced in July 2020, more than two months before the plaintiff’s most recent application was refused by the Law Society on 21 September 2020.
The defendants’ submission misunderstands the plaintiff’s argument. As explained above, as I read and understand the allegations (in particular those at [18] and [19] of the Statement of Claim), the plaintiff contends that he had made an application to the Law Society for a practising certificate in 2020, that the Law Society had not made a decision with regard to that application before the commencement of the financial year for which a practising certificate would have operated, and that he was unable to work as a solicitor in the meantime.
The plaintiff further relies upon s 37(3) of the LP Act in asserting that where there is a pending application for a practising certificate, lawyers have a right to continue to work until a decision is made on the application. The plaintiff contends that in his case, he has been prevented from working in the meantime, which he alleges is unfavourable treatment, among other things. On the present application, the proper construction of s 37(3) of the LP Act does not yet arise for consideration.
In any event, the plaintiff indicated during the hearing that he wanted the opportunity to amend the Statement of Claim now that a decision has been made to refuse the plaintiff a practising certificate. He wishes to challenge the most recent refusal, including to appeal the decision pursuant to s 81 of the LP Act. Rule 413(2) of the Rules expressly provides for him to do so if it is not unjust to any other party and with the Court’s leave.
The defendants opposed the Court adjourning the application so as to give the plaintiff the opportunity to raise that complaint. The defendants expressly sought that their application to declare the plaintiff a vexatious litigant be determined before considering whether leave for any further opportunity to add a claim for relief should be given. The defendants were concerned that an extension of time in which to appeal the decision would be necessary, and that pursuant to s 11(2) of the Supreme Court Act, an application to do so would require consideration by a Full Court (and there is no discretion for the Chief Justice to otherwise direct, in contrast to s 11(1) of the Supreme Court Act). That matter could have been addressed if and when such a pleading was propounded. It is not a matter that would prevent the plaintiff from seeking leave to appeal in the first place.
(ii) Other more appropriate avenues of redress
The defendants’ next argument as to why the pleading is otherwise an abuse of process is that their conduct in denying the plaintiff a practising certificate is more appropriately addressed by commencing proceedings pursuant to s 81 of the LP Act, which provides a direct right of appeal.
What must be appreciated is that when the plaintiff commenced these proceedings, he could not instigate a challenge pursuant to s 81 of the LP Act because there was no decision about the plaintiff’s latest application for a practising certificate. Indeed, part of the plaintiff’s complaint is that the Law Society delayed determining his application in circumstances where he is legally qualified, has held a practising certificate in the past, has no criminal convictions, and no complaints had been made about him. The plaintiff is concerned that the reasons for the Law Society’s delay in making a decision whether to issue him with a practising certificate for the financial year commencing July 2020 were not lawful reasons. That the proceedings were commenced before a decision was made does not give rise to any abuse of process. Further, now that the Law Society has made a decision to refuse the latest application, the plaintiff seeks to amend his claim to directly challenge it.
(iii) The defendants have an immunity from civil suit
The final argument made by the defendants as to why the first proceeding is otherwise an abuse of process is what they describe as a broad submission that:
…any civil claims brought by [the plaintiff] against the Law Society (and related parties) in relation to decisions concerning his applications for practising certificates are, prima facie, prohibited as an abuse of the Court’s process… .
There are two grounds on which the defendants base that submission: (a) a blanket statutory immunity from suit; and (b) the availability of a de novo appeal, which is asserted as precluding decisions from being amenable to collateral attack.
The first ground of a blanket immunity is a reference to s 587A of the LP Act. The defendants accept that the immunity only applies where a person (including the Council of the Law Society) has acted honestly and without recklessness. However, the defendants argue that allegations of malice and corruption have been made against the Law Society and related parties in the past, without ever being substantiated. The defendants submit that the onus is on the plaintiff to put credible evidence before the Court to substantiate claims of dishonesty and so forth.
The defendants’ submission misconceives the summary nature of their application. As set out above, the application is determined on the pleadings and taking them at their highest. The plaintiff has expressly pleaded malice with regard to his application for a practising certificate to commence in July 2020. For the purpose of determining the application on a summary basis, that fact is taken as established: Volanne at [8]. If the defendants seek to argue that summary judgment should be entered in their favour because an essential element depriving the defendants of the benefit of s 587A cannot be made out, then they bear the onus of establishing that position.
It is no answer to say that on previous occasions, there has been no malice established with regard to different decisions made by the Law Society. This is a fresh decision that is the subject of complaint. There is a fresh allegation of delay and a proposal to amend the claim to include the ultimate refusal of the application. The defendants’ conduct is said to have been a product of malice. While I have accepted above that the particulars of malice are not properly pleaded, the substance of the claim is arguable, in the sense that on the pleaded facts, s 587A may not apply.
(iv) The legislation precludes a collateral attack on the defendants’ decisions
Dealing then with the second ground for the submission recorded above at [127], the defendants argued that the availability of a de novo appeal under s 81 of the LP Act suggests that Parliament (which I take to be a reference to the Legislative Assembly) did not intend that reviewable decisions under the LP Act should be amenable to collateral attack.
The defendants submitted that a similar argument was made in relation to a different strike out application and was “apparently accepted” by Refshauge J in Emmanuel Tam Ezekiel-Hart v The Law Society of the Australian Capital Territory [2012] ACTSC 103 at [58]. Relevantly, his Honour stated at [57]-[58]:
The Law Society has a statutory obligation to consider applications for the issuance of an unrestricted practising certificate and it must do so in accordance with the Legal Profession Act and the Legal Profession Regulation.
If a decision is made not to issue such a certificate, that decision can be challenged by appeal to this Court under s 81 of the Legal Profession Act. It may be, as submitted by the defendants, that such a right of challenge denies Mr Ezekiel-Hart the kind of relief he seeks in these proceedings. There is certainly authority to support that proposition in Coffey v Secretary, Department of Social Security [1999] FCA 375; (1999) 86 FCR 434 [(Coffey)] at 443–4; [25]–[27].
There are at least two difficulties with the defendants’ argument. First, the defendants overlook that the present proceeding is a summary application. I am far from persuaded to the requisite standard of satisfaction at the summary level that this case represents a ‘collateral attack’ on the Law Society’s latest decision to refuse a practising certificate and I note that the circumstances in Coffey were very different to those under consideration here. There would need to be a fully contested legal argument as to the proper construction of the LP Act and what, if anything, s 81 may preclude, before a finding that the present proceedings were impermissible due to the availability of an appeal mechanism.
Second, the comments of Refshauge J do not support the conclusion that the defendants urge this Court to adopt. Not only were Refshauge J’s comments above equivocal and not decisive, but the authority referred to by his Honour, namely Coffey at [25], provides a similarly equivocal statement that an attempt to litigate in the Court an issue which has been resolved in earlier litigation in another court may constitute an abuse of process even though no issue estoppel arises. The Full Federal Court went on to say in the same paragraph that whether it does will depend on the facts of the particular case.
For these reasons, I am not satisfied on a summary basis that the proceeding is in substance an abuse of process.
(v) Costs of previous litigation
For completeness, the remainder of the defendants’ submissions were directed to an alternative argument sought to be raised for the first time at the hearing, namely that the Court should exercise its discretion to stay the proceeding. In order to make that argument, the defendants belatedly sought to amend their application in proceedings to include an application for a stay. The submission was that substantial costs had been incurred as a result of previous litigation, so that the proceedings should be stayed until the plaintiff had paid all of the outstanding assessed costs orders against him, not only to the Law Society, but to all “related parties”. I refused the application to amend at the hearing, for reasons I gave ex tempore at the hearing.
Conclusion on summary dismissal
It is not appropriate to summarily dismiss the first proceeding. The foundation for the plaintiff’s case against the defendants, either under the Human Rights Act or in negligence, appears to be:
(a) The plaintiff applied for a practising certificate for the year commencing on 1 July 2020 before the relevant year commenced.
(b) The plaintiff was entitled to the issue of a practising certificate because:
(i) He was admitted to the Roll of the Supreme Court in the Territory,
(ii) He had no complaints made against him,
(iii) He had no criminal convictions, and
(iv) He was otherwise a fit and proper person (see s 36 of the LP Act).
(c) The defendants delayed the issue of a practising certificate or alternatively refused to issue a practising certificate to the plaintiff (even a conditional practising certificate).
(d) The defendants further refused to give the plaintiff reasons for the delay.
(e) Other practitioners in the same or similar circumstances to the plaintiff had been issued with a practising certificate (or presumably a conditional practising certificate).
(f) The conduct of the defendants has:
(i) caused the plaintiff financial loss;
(ii) resulted in a loss of reputation;
(iii) deprived the plaintiff of the opportunity to enhance his court experience; and
(iv) caused the plaintiff to feel worthless in being excluded from legal practice.
Other allegations will need to be more precisely articulated. They include matters such as how the refusal was a product of malice or ill will, or that the latest conduct of the Law Society was in some way referable to the plaintiff’s race or cultural background, how a duty of care arises in respect of any cause of action for negligence, and how any appropriate relief is tied to a particular cause of action. However, there is a sufficient kernel of a case to make it appropriate to give the plaintiff an opportunity to attempt to plead his claim in a manner that complies with the Rules. Notwithstanding that the plaintiff has legal qualifications, English is not his first language and courts must exercise caution with litigants in person attempting to plead a case: see Mann v Cahill [1999] ACTSC 7; 149 FLR 298 at [6].
Issue 3: Should a declaration be made that the plaintiff is a vexatious litigant?
The application is brought under s 67A of the Supreme Court Act. It relevantly provides:
67A(1) In this section:
aggrieved person, in relation to proceedings, means a person aggrieved by the institution of those proceedings.
proceedings means any cause, matter, action, suit or proceeding of any other kind within the jurisdiction of any court or tribunal and includes any proceeding taken in connection with any such legal proceedings pending before any court or tribunal.
vexatious proceedings means proceedings—
(a) the purpose of which is to harass or annoy, to cause delay or for some other ulterior purpose; or
(b) that lack reasonable grounds.
(2) If, on the application of ... an aggrieved person, the court is satisfied that a person has frequently instituted vexatious proceedings, the court may declare the person to be a vexatious litigant.
(3) A declaration may be expressed to apply only in relation to a particular type of matter.
(4) A declaration may be expressed to be subject to the conditions the court considers appropriate.
(5) If a person is declared to be a vexatious litigant—
(a) the person, or a person acting in concert with the person, shall not institute or continue any proceedings or, for a declaration expressed to apply only in relation to a particular type of matter, proceedings of that type, without the leave of the court; and
(b) any proceedings pending at the time of the declaration or, for a declaration expressed to apply only in relation to a particular type of matter, proceedings of that type, are stayed subject to any order of the court in relation to those proceedings.
(6) If the court gives leave to a person for subsection (5) (a), it may impose the conditions it considers appropriate.
(7) Conditions imposed under subsection (6) in relation to proceedings may include conditions—
(a) relating to security for costs in the proceedings; and
(b) specifying matters relating to the issue of process in the proceedings.
(8) Unless expressed to remain in force until the end of a date specified in the declaration, a declaration remains in force until revoked by the court.
(9) The court may vary a declaration.
(10) Subject to any order of the court, an order making, varying or revoking a declaration is a notifiable instrument.
...
The Law Society has previously applied unsuccessfully to have the present plaintiff declared a vexatious litigant: see Ezekiel-Hart v Reis [2018] ACTSC 264 (Ezekiel-Hart v Reis) at [106]-[114].
The applicable principles were set out in Ezekiel-Hart v Reis at [88]-[90]. The defendants did not dispute that those principles applied. They are included here for convenience as follows (bolding in original):
88. Although a number of the principles extracted from the authorities have been developed in the context of legislation in other jurisdictions in slightly different terms, the broad principles are the same and it is unnecessary for the purposes of resolving this application to delve into the legislative nuances between vexatious litigant provisions in different jurisdictions.
89. The purpose of an order under s 67A of the Act is not to impose punishment for past litigious misdeeds, but to shield both the public and the Court itself: Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (Official Trustee in Bankruptcy v Gargan) at [3]; cited with approval in Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192 (Attorney General v Gargan)at [8]. Master Mossop (as his Honour then was) discussed some of the features of the statutory provision in Vatarescu v Commonwealth of Australia and the Australian Capital Territory [2013] ACTSC 270; 285 FLR 1 (Vatarescu)at [32]-[37]. Referring to that judgment more recently in Barlow v Law Society of the ACT [2018] ACTCA 16, Elkaim J recently stated at [28] that the bar for making an order pursuant to s 67A of the Act remained “very high”.
90. There are three considerations: whether the person has instituted vexatious proceedings, whether he (in this case) has done so frequently, and whether the Court should exercise its discretion to make the orders sought.
In addition, the defendants relied upon a well-recognised inherent power of the Court to protect itself from abuses of its process, discussed above at [117] of these reasons. That power extends to the making of orders restraining the commencement of proceedings. To this end, the defendants relied upon Optquest Pty Ltd v Marchesi (as trustee of the bankrupt estate of Vasilou (a former bankrupt) [2011] VSC 428 at [33]-[36], and Westwill Pty Ltd v Heath [2010] SASC 358 at [33]. However, the defendants did not submit that the discretion to be exercised by the Court under s 67A of the Supreme Court Act was different to the manner in which it is to be exercised as part of any inherent power to grant the same relief.
Has the plaintiff instituted vexatious proceedings?
There are two limbs to the definition of ‘vexatious proceedings’ in s 67A above. The reference to proceedings instituted for ‘some other ulterior purpose’ in para (a) of the statutory definition is broad enough to encompass proceedings that are an abuse of process.
With regard to the second limb of the definition in para (b), in determining whether proceedings lack reasonable grounds, it is important to distinguish the difficult from the ridiculous and the unlikely from the hopeless: Official Trustee in Bankruptcy v Gargan at [6] per Perram J.
When making the assessment of whether proceedings were vexatious, regard may be had to the findings and result in the proceedings under consideration: Attorney General v Gargan at [7], Attorney-General v Chan [2011] NSWSC 1315 (Chan) at [39], Attorney General of NSW v Wilson [2010] NSWSC 1008 (Wilson)at [22], Attorney General (NSW) v Croker [2010] NSWSC 942 (Croker)at [125], Attorney General v Tareq Altaranesi [2013] NSWSC 63 at [16].
Ordinarily, the court that heard and decided the earlier proceedings will have been best placed to determine whether they were an abuse of process or instituted without reasonable grounds. The seriousness of the consequences of making a vexatious proceedings order leaves it open to the court hearing an application for the declaration to depart from findings made in earlier proceedings. However, in the ordinary course it would require very persuasive material to justify such a departure: Potier v Attorney-General in and for the State of New South Wales [2015] NSWCA 129; 89 NSWLR 284 (Potier)at [21]-[23]; Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [53]- [54]; Croker at [125].
In the present case I have made an assumption, rather than engaging in the detail of each of the cases, that the plaintiff has previously instituted vexatious proceedings. The findings of Crowe AJ in Ezekiel-Hart (No 2) that the proceedings before his Honour were hopeless (recorded at [83] of his Honour’s reasons) are a further example of proceedings that were hopeless and may therefore constitute proceedings that lack reasonable grounds.
Have vexatious proceedings been “frequently” instituted by the plaintiff?
In Ezekiel-Hart v Reis, the following consideration was given to what the term means at [98]:
The statutory term ‘frequently’ is a relative term and must be looked at in the context of the litigation being considered: Wilson at [12]-[14]. The issue is not to be assessed merely by an arithmetic calculation: Viavattene at [49] per Leeming JA. The number of proceedings considered may be small if the proceedings are an attempt to re-litigate an issue already determined against the person. The court must examine the nature of the applications to determine whether they are simply a consequential aspect of the original proceedings, or something different. The court may be more willing to conclude that vexatious proceedings are brought frequently where the proceedings are brought against the same person or involve the same subject matter: see Wilson at [12]; Croker at [22]; Attorney General v Gargan at [7]; Siteberg v Maples [2010] NSWSC 1344 (Maples)at [31]- [32]; and Potier at [114]- [118].
It is ordinarily necessary to identify which of the proceedings relied upon by an applicant were in fact vexatious, because that finding is relevant to determining the proportion of vexatious proceedings, which in turn is a matter that is important to the exercise of discretion: Mahmoud v Attorney General of New South Wales [2017] NSWCA 12 at [49] per Payne JA (with whom Beazley P and Macfarlan JA agreed).
Caution must be exercised in the present case, because the Law Society is the regulator of the legal profession in which the plaintiff seeks to practise. As long as the plaintiff seeks to practise law in the Territory as a solicitor, the Law Society will be called upon to make a decision about his application for a practising certificate on a yearly basis. That will give rise to rights and liabilities that may result in litigation on a yearly basis. In these particular circumstances, even the bringing of frequent proceedings against the Law Society may not necessarily result in a conclusion that the plaintiff has frequently brought vexatious proceedings in courts and tribunals.
It is unnecessary, in light of the reasons that follow, to make any finding of fact as to whether vexatious proceedings have been ‘frequently’ instituted. In circumstances where I have assumed that vexatious proceedings have been brought in the past, it is appropriate to also refrain from making any finding of fact as to whether any such proceedings were frequent and instead, to assume that fact without deciding it.
Should the Court exercise its discretion to make any declaration pursuant to s 67A?
The reason why the proportion of vexatious proceedings, while relevant, is not critical to, or determinative of, the present exercise of the Court’s discretion is because there are other considerations to which the Court should have regard. In light of the results of the parties’ competing applications, I consider that they carry greater weight.
The principles guiding the exercise of the Court’s discretion were discussed in Official Trustee in Bankruptcy v Gargan at [12], cited with approval in Attorney General v Gargan at [8] and in Chan at [40]. The matters to be considered in determining whether and how to exercise the discretion to make the declaration are unconfined. The considerations are informed by the protective purpose for which the order serves. In Official Trustee in Bankruptcy v Gargan, Perram J set out some of the relevant factors at [12]. For ease of reading, they are set out in a list format as follows:
(a) A display of insight by a litigant into his previous litigious history will be relevant, because it may be indicative (but not determinative) of a diminishing risk posed to the public.
(b) The manner in which the litigation generally has been conducted (including how the litigant conducts his general affairs) is capable of throwing light on whether the commencement of further vexatious proceedings is likely.
(c) Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought.
(d) Because of the protective nature of the jurisdiction, it is also relevant to know the extent of the damage and inconvenience (pecuniary or otherwise) caused by the litigant’s conduct of vexatious proceedings.
The significant expense to the Law Society and its agents in responding to litigation brought by the plaintiff which has, on the whole, been unsuccessful, is a material consideration in the exercise of the Court’s discretion. However, bearing in mind the serious nature of the relief sought in depriving a litigant of access to the courts (Wilson at [11]) there are five points which, when taken together, mean that I am not persuaded a declaration under s 67A of the Supreme Court Act is presently appropriate.
First, as seen from the reasons in relation to whether to strike out or summarily dismiss the first proceeding, it may yet come to include an arguable cause of action. It cannot yet be determined that the first proceeding, which was plainly the catalyst for the defendants’ application, is itself so lacking in prospects as to require the protection of the Court’s processes against unwarranted usurpation of its time and resources and to avoid loss caused to those who face actions which lack substance: see Vatarescu at [36] and the case there-cited.
Second, it may be that once the Statement of Claim is properly pleaded, references to matters that the defendants perceive to be a re-agitation of the plaintiff’s previously litigated claims (which would be relevant to demonstrating a lack of insight) are in fact relied upon only as historical interactions between the parties. They may be interactions which the plaintiff pleads in support of an allegation that the previous conduct has now given rise to a malicious attitude or feelings of ill will on the part of the Law Society and its agents, which in turn has affected the way the defendants presently deal with the plaintiff and the decisions made about his right to practise.
Third, the plaintiff has also demonstrated some insight in respect of the causes of action available to him. He seeks to amend his claim to include a challenge to the Law Society’s most recent decision pursuant to s 81 of the LP Act.
Fourth, regarding the plaintiff’s defence to the proceedings in which the order seeking declaratory relief pursuant to s 67A of the Supreme Court Act is sought, although the plaintiff’s written submissions were difficult to understand, he did succeed in clarifying matters during oral argument. Overall, the plaintiff’s response has been measured, reasonably arguable and proportionate. The plaintiff is prepared to listen and to amend his course of action when appropriate to do so.
Fifth, contrary to the defendants’ submission that the application for judicial review that was filed is “yet another example of hopeless and vexatious litigation commenced by the plaintiff”, I consider that the second proceeding was in fact reasonably commenced. That the second proceeding was ultimately unsuccessful was, in part, a result of subsequent procedural steps taken by the defendants so that they were not in default when the Court came to consider whether to enter default judgment.
Accordingly, the evidence does not persuade me that it is necessary to declare the plaintiff a vexatious litigant under s 67A(2) of the Supreme Court Act as a matter of discretion to protect the public at large. Further, because of the foregoing matters, I would not accede to the making of a protective order on a more limited basis under s 67A(3) of the Supreme Court Act, such as a declaration that only operates in relation to litigation sought to be brought against the Law Society or its agents.
Conclusion and Orders
For the above reasons, the first proceeding will not be summarily dismissed, and the plaintiff will not be declared a vexatious litigant. However, the defendants have achieved partial success on their application in striking out the pleading. In those circumstances, it is appropriate that I give the parties the opportunity to be heard on costs in relation to the first proceeding once they have given consideration to these reasons.
The orders of the Court are as follows:
1.Proceeding SC 321 of 2020 is dismissed, with no order as to costs.
2.In proceeding SC 239 of 2020:
a)The Statement of Claim is struck out;
b)The application in proceedings filed 31 August 2020 is otherwise dismissed;
c)The plaintiff is directed to file and serve any further Statement of Claim by 30 July 2021.
d)The proceeding is listed for directions on 5 August 2021 at 9:30am and for the hearing of any application for orders in relation to costs.
| I certify that the preceding one hundred and sixty-three [163] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Dominic Page Date: 30 June 2021 |
9
26
6