Ezekiel-Hart v Council of the Law Society of the ACT (No 2)
[2022] ACTSC 131
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ezekiel-Hart v Council of the Law Society of the ACT (No 2) |
Citation: | [2022] ACTSC 131 |
Hearing Date: | 3 June 2022 |
DecisionDate: | 3 June 2022 |
Before: | Kennett J |
Decision: | The plaintiff is to pay the first and second defendants’ costs of the proceeding. Those costs, if not agreed, are to be assessed on an indemnity basis for the period commencing 11 May 2022 and otherwise on a party and party basis |
Catchwords: | CIVIL LAW – COSTS – Where application had no chance of success – where unsuccessful party is a self-represented litigant with legal qualifications |
Legislation Cited: | Court Procedures Rules 2006 (ACT) |
Cases Cited: | Ezekiel-Hart v Council of the Law Society of the ACT [2022] ACTSC 117 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 |
Parties: | Emmanuel Tam Ezekiel-Hart ( Plaintiff) Council of the Law Society of the ACT ( First Defendant) The President of the Law Society of the ACT (Second Defendant) The Supreme Court of the Australian Capital Territory (Third Defendant) Attorney-General of the Australian Capital Territory (Intervener) |
Representation: | Counsel Self-represented ( Plaintiff) D Moujalli ( First and Second Defendants) No Appearance (Third Defendant) H Bowcock (Intervener) |
| Solicitors Self-represented ( Plaintiff) McInnes Wilson Lawyers ( First and Second Defendants) No Appearance (Third Defendant) ACT Government Solicitor (Intervener) | |
File Number: | SC 36 of 2022 |
KENNETT J
Introduction
On 17 May 2022 I delivered judgment in Ezekiel-Hart v Council of the Law Society of the ACT [2022] ACTSC 117. In that decision I dismissed Mr Ezekiel-Hart’s application for mandamus against this Court and a Judge of the Court. Before me now is the question of costs of that proceeding.
Plaintiff’s submissions
Mr Ezekiel-Hart submits that the defendants should pay his costs or alternatively that each party should bear their own costs. He puts this position on the basis that he is, in fact, the successful party or at least achieved some measure of success. He suggests that he had success in two respects.
First, it is suggested that the Court rejected arguments put by the defendants and the Attorney-General intervening that the Court had no jurisdiction in the matter. Reference to the reasons at [23] will show that what was clearly accepted was only that the Court, as a superior court of record, had jurisdiction sufficient to determine whether or not it had jurisdiction to deal with the substantive questions in the case. Whether the more substantive limitation contended for by the defendants and the Attorney-General was one that went to jurisdiction was left for another day. The conclusion was that, on any view of that interesting question, the application had to be dismissed. Thus, although the orders made did not correspond exactly with those sought by the defendants in their Application in Proceeding, the arguments that they and the Attorney-General put were in substance wholly successful and, for the reasons set out in the judgment, the application had to fail whether or not the defendants had filed a formal interlocutory application raising these points.
Secondly, it is suggested that the judgment in this matter in some way triggered the reactivation of Mr Ezekiel-Hart’s summary judgment application in proceeding No SC 239 of 2020. That is not so. As noted at [12] of the reasons, that application was before the Court and able to be listed for hearing whether or not the present proceeding had been commenced and regardless of the result in it.
Mr Ezekiel-Hart also asserts numerous irregularities and failures to comply with directions and the Court Procedures Rules 2006 (ACT) on the part of the defendants. For the most part these appear to relate to the conduct of SC 239 of 2020 and should be addressed, if relevant, in the process of awarding costs in that proceeding. In the present case, it was asserted that the defendants’ Application in Proceeding was filed out of time, so that the defendants were not entitled to rely on it and therefore could not claim to have succeeded. The short answer to that point is that the Application in Proceeding was filed within the time specifically allowed for that to be done by an order of a Deputy Registrar made on 11 March 2022.
Put simply, the originating application in this proceeding failed. Further, it should not have been commenced because Mr Ezekiel-Hart’s summary judgment application was already alive before the Court and capable of being listed for hearing. I am therefore satisfied that costs should be awarded to the defendants.
Defendants’ submissions
The defendants sought an order that those costs be payable on an indemnity basis from 4 May 2022. This was put on the basis that Mr Ezekiel-Hart had received the defendants’ written submissions the previous day and should then have been aware that his application had no chance of success. I was referred to Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401 where Woodward J, in the course of awarding indemnity costs, referred to an application being “commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success.”
In my view, if properly advised, Mr Ezekiel-Hart would have apprehended on seeing the defendants’ submissions (if not before) that his application had no chance of being successful.
Mr Ezekiel-Hart appears as a litigant in person but is one who is legally qualified. Indeed, this proceeding is related to a long course of litigation in which Mr Ezekiel-Hart is seeking to have his practicing certificate reinstated. I think it is appropriate for this purpose to hold him to a standard close to that which would be applied to a party with legal representation. Nevertheless, some allowance should be made for his position.
However, I also take into account (as I have noted earlier) that Mr Ezekiel-Hart’s application had no real utility. He sought an order in substance directing the Court to enter summary judgment. If he has a good case for the making of that order, it follows that he must also have a good case for summary judgment that he can advance on his existing application for that relief in SC 239 of 2020. As a legally trained person, he should have appreciated that.
I will order that costs be paid on an indemnity basis but only from 11 May 2022. That is the day after the submissions of the Attorney-General were filed. If Mr Ezekiel-Hart’s lack of prospects was not clear from 4 May 2022, it should have been clear by then.
Finally, I note that the Attorney-General does not seek costs and there is no basis on which costs should be ordered against him.
Orders
The orders of the Court will be as follows:
(1)The plaintiff is to pay the first and second defendants’ costs of the proceeding.
(2)Those costs, if not agreed, are to be assessed on an indemnity basis for the period commencing 11 May 2022 and otherwise on a party and party basis.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kennett Associate: Date: |
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