Ezekiel-Hart v Council of the Law Society of the ACT (No 2)
[2022] ACTSC 29
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 29 |
Hearing Date: | 17 December 2021 |
Last Submissions: | 25 January 2022 |
DecisionDate: | 25 February 2022 |
Before: | Mossop J |
Decision: | See [79] |
Catchwords: | PRACTICE AND PROCEDURE – INTERLOCUTORY APPLICATION – Defendants seek to strike out paragraphs of Statement of Claim – lengthy history of litigation between the parties – pleading of allegations of fraud and dishonesty – whether the pleading is embarrassing – defendants entitled to have serious allegations properly pleaded and particularised – identified paragraphs of Statement of Claim struck out PRACTICE AND PROCEDURE – COSTS – Defendants seek security for costs – plaintiff is impecunious – regulatory context of application – caution should be exercised in relation to an order for security where there is a reasonably arguable case – appropriate to address incoherence or lack of merit of claim first – application for security for costs dismissed |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 407(1), 425, 1901 Human Rights Act 2004 (ACT) Supreme Court Act 1933 (ACT), s 11 |
Cases Cited: | Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 Calabro v The State of Western Australia [No 3] [2014] WASC 84 Szanto v Bainton [2011] NSWSC 985 |
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) |
Representation: | Counsel Self-represented ( Plaintiff) D Moujalli (Defendants) |
| Solicitors Self-represented ( Plaintiff) McInnes Wilson Lawyers (Defendants) | |
File Number: | SC 239 of 2020 |
MOSSOP J:
Introduction
The plaintiff, Emmanuel Ezekiel-Hart, has brought proceedings against the defendants, the Council and President of the Law Society of the Australian Capital Territory (ACT), arising out of the Council’s refusal in 2020 to grant him a practising certificate. The defendants have applied to strike out certain paragraphs of the Statement of Claim and Reply and have also sought security for costs of the proceedings. Following the making of those applications, the plaintiff applied for summary judgment. Consideration of that application was deferred pending a decision on the defendants’ earlier application.
Background to the present proceedings
The history of litigation between the plaintiff and the Law Society is lengthy. It is summarised in the following table.
Date Event 31 August 2009
Higgins CJ dismisses proceedings SC 303 of 2009 challenging a decision of the Law Society not to issue an unrestricted practising certificate to the plaintiff in 2008.
19 March 2010
Gray P strikes out an appeal from Higgins CJ because it is incompetent in the absence of a grant of leave to appeal: Ezekiel-Hart v The Law Society of the Australian Capital Territory & Ors [2010] ACTCA 6; 173 ACTR 15.
29 September 2010
The High Court dismisses an application for special leave to appeal from the decision of Gray P: Ezekiel-Hart v Law Society of the Australian Capital Territory & Ors [2010] HCASL 210.
29 June 2012
Refshauge J strikes out and dismisses proceedings SC 640 of 2011 which claimed damages against the Law Society and other defendants: Ezekiel-Hart v Law Society of the Australian Capital Territory [2012] ACTSC 103.
25 March 2013
Foster J dismisses proceedings brought by the plaintiff against the Law Society and others on the basis that they were an abuse of process: Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] FCA 257.
26 July 2013
Yates J dismisses the plaintiff’s application for an extension of time and leave to appeal from the decision of Foster J: Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] FCA 725.
6 March 2014
Judge Neville dismisses the plaintiff’s application to set aside a bankruptcy notice: Ezekiel-Hart v Law Society of the Australian Capital Territory & Ors [2014] FCCA 400.
23 August 2013
Mossop M dismisses the plaintiff’s application in relation to costs order made by Higgins CJ on 31 August 2009 but amends the terms of the order as perfected: Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] ACTSC 182.
4 April 2014
Judge Neville dismisses proceedings alleging unlawful racial discrimination and declares Mr Ezekiel-Hart to be a vexatious litigant: Ezekiel-Hart v Law Society of ACT & Anor [2014] FCCA 658.
24 January 2017
Senior Member Beacroft in the ACT Civil and Administrative Tribunal (ACAT) dismisses proceedings relating to the failure to renew the plaintiff’s unrestricted practising certificate in 2016 on the grounds of unlawful discrimination: Ezekiel-Hart v Reis & Anor (Discrimination) [2017] ACAT 3.
21 September 2017
Acting Presidential Member Orr dismisses an appeal from the decision of Senior Member Beacroft: Ezekiel-Hart v Reis & Anor (Appeal) [2017] ACAT 76.
19 September 2018
In proceedings SC 433 of 2017 brought against Mr Reis, the Council of the Law Society and a president of the Law Society, McWilliam AsJ dismisses a claim against one defendant and strikes out the pleadings in relation to another defendant but with leave to replead: Ezekiel‑Hart v Reis [2018] ACTSC 264
25 July 2019
Crowe AJ dismisses an application for leave to appeal from the decision of the ACAT: Ezekiel-Hart v Reis (Leave to appeal) [2019] ACTSC 193.
25 July 2019
Crowe AJ grants a summary judgment in favour of the Law Society and judgment in favour of the ACT in proceedings SC 433 of 2017: Ezekiel-Hart v Reis (No 2) [2019] ACTSC 192
6 September 2019
Crowe AJ awards costs against Mr Ezekiel-Hart: Ezekiel‑Hart v Reis (No 3) [2019] ACTSC 250
14 November 2019
Mossop J dismisses applications for leave to appeal from the decisions of Crowe AJ: Ezekiel-Hart v Reis [2019] ACTCA 31.
17 June 2020
The High Court dismisses an application for leave to appeal from the decision of Mossop J: Ezekiel-Hart v Reis & Ors [2020] HCASL 143.
3 July 2020
Present proceedings commence.
16 July 2020
The Court of Appeal dismisses the plaintiff’s appeal from the dismissal of his claim against the ACT: Ezekiel-Hart v Australian Capital Territory [2020] ACTCA 32.
Procedural history of the present proceedings
The present proceedings were commenced by the plaintiff on 3 July 2020. On 31 August 2020, the defendants filed an application seeking an order that the Statement of Claim be struck out. On 30 June 2021, McWilliam AsJ struck out the Statement of Claim pursuant to r 425 of the Court Procedures Rules 2006 (ACT): Ezekiel-Hart v Council of the Law Society of the ACT & Anor [2021] ACTSC 133.
On 28 July 2021, the plaintiff filed an Amended Statement of Claim. That document was 64 pages long.
On 16 August 2021, the defendants filed the defence. On the same day, the solicitors for the defendants wrote to the plaintiff noting the seriousness of some of the plaintiff’s allegations, seeking particulars of certain paragraphs of the Amended Statement of Claim and requesting that the plaintiff outline the nature of the evidence upon which he intended to rely.
On 30 August 2021, the plaintiff filed a Reply comprising 50 pages. The stance adopted by the plaintiff was that he considered that Reply to contain the requested “facts, circumstances and nature of evidence”.
The present application was filed on 8 September 2021.
On 27 September 2021, the defendants’ solicitors asked the plaintiff to confirm that his Reply was intended to be his response to the letter of 16 August 2021 but no response was received.
Directions were made for the filing and service of written submissions. The defendants filed and served written submissions. The plaintiff did not file any written submissions, notwithstanding an extension of the time in which he was permitted to file those written submissions.
At the hearing on 17 December 2021, the court dealt with the contention on the part of the plaintiff that the application in proceeding was “incompetent”. For reasons that were given at the time, that contention was rejected and the application permitted to proceed.
It was also necessary to deal with the plaintiff’s contention that documents over which privilege had been claimed by the defendants were not in fact the subject of legal professional privilege. The court ruled against the plaintiff and found that the claim for privilege was properly made.
Those matters were determined shortly prior to the luncheon adjournment. The plaintiff did not return after lunch. He sent an email to the solicitor for the defendants stating that he was ill. The court made directions for the completion of the hearing by written submissions. This also gave the plaintiff additional time to consider the documents that had been produced in response to certain subpoenas which, although he had copies of them since 29 November 2021, he claimed not to have been able to fully consider. The plaintiff was given a further opportunity to file written submissions and any additional evidence by 25 January 2022. The plaintiff filed additional submissions on 25 January 2022. On the same day, he filed an application in proceeding seeking summary judgment that was supported by his affidavit of the same date.
The application for summary judgment was returnable before me on 4 February 2022. On that date I directed that the application be listed for mention when the decision on the application in proceeding dated 8 September 2021 was given.
The plaintiff’s claim
The plaintiff’s Statement of Claim is 239 paragraphs long. There are numerous different prayers for relief. The document identifies that it is based upon:
(a)Human Rights Act 2004 (ACT), ss 7, 8, 10(1)(b), 11, 12(b), 17(c), 27B, 30, 40B, 40C.
(b)“General law of negligence and breach of duty of care”.
(c)Australian Human Rights Commission Act 1986 (Cth), ss 19A, 26(2), 46PO(4).
(d)Constitution, s 117.
(e)Competition and Consumer Act 2010 (Cth), ss 18, 20, 21 and 22.
(f)Civil Law (Wrongs) Act 2002 (ACT), ss 120 and 139F, and the “General law of Defamation”.
(g)Civil Law (Wrongs) Non-Economic Loss Declaration 2017 (ACT).
(h)“International law”.
The pleading is lengthy and difficult to understand. It contains much which is unnecessary. On numerous occasions it makes reference to malice directed towards the plaintiff by the defendants and racial bias directed against him because he is “a Black lawyer”.
The nature of the pleading is such that it is embarrassing in the sense of being likely to delay the proper conduct of the proceedings.
In the introductory portions of the document, there is an allegation that from 2013 “the defendants developed tactics against the plaintiff as a Black lawyer through, and by, their servant Mr Robert Reis, to hold onto the plaintiff’s certificate indefinitely without any option to work as a legal practitioner”.
Paragraph 15, which is one of those sought to be struck out, provides:
15.These tactics include unconscionable delay, lies to the Plaintiff and to the ACT Law Society, concoction and distribution of defaming materials, and creation of “unresolved complaint” which never end, or get resolved.
The first cause of action is a claim that the defendants breached s 27B of the Human Rights Act. Section 27B(1) provides: “Everyone has the right to work, including the right to choose their occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.” The pleading asserts that by refusing the plaintiff a practising certificate on 30 June 2020, the defendants breached s 27B.
Paragraph 41, which the defendants seek to strike out, provides:
41.Moreover, on 22 November 2016, the defendants authorised their servant Mr Robert Reis to lie or [in] the alternative the defendants servant knowingly, willingly, and or voluntarily lie on behalf of Defendants to the Tribunal about the extent of the handling of the said complaint including “lethal violence” to avoid the plaintiff becoming aware that the “unresolved complaint” tactics used by the Defendants servants to prevent the Plaintiff from being issued with practising certificate had all been dismissed by the Council of April 2016.
The plaintiff alleges that he was subject to “unacceptable disability and discrimination contrary to section 117 of the Constitution”: [46]. He asserts that on 30 September 2020 the defendants circulated a memorandum of Mr Robert Reis which defamed the plaintiff: [50].
Paragraph 53, which the defendants seek to strike out, provides:
53.To achieve the bankruptcy in 2013 the Defendants’ servants lied to the Court, hiding information of material significant from the Court. Moreover, the defendants and their servants refused all offers made to pay the cost at the time in the circumstances that “others” were given favourable options to allow them work AND earn money to pay legal cost in instalments.
Paragraph 77 asserts that the defendants or Mr Reis “lied to His Honour Judge Neville of the Federal Circuit Court in that they did send lawyer Hijazi of Phelps Reid Lawyers to lie to the Court that they will not use the bankruptcy against the plaintiff’s certificate to stop the plaintiff from work”.
In [81] the plaintiff asserts that “the Defendants” wrote a letter on 24 September 2018 which contained a lie. In [82] the plaintiff asserts that the “Defendants and their servants were negligent, reckless and indeed dishonest” in writing that letter. At [84] the plaintiff asserts that “The Defendants yet again lied” in a letter referring to his 2013 bankruptcy but not referring to his discharge from bankruptcy.
In [88] the plaintiff asserts that the defendants lied in the same document in failing to refer to the dismissal of certain complaints.
Paragraphs 89-91 of the claim assert a breach of s 8(2) of the Human Rights Act, the right to enjoy his or her human rights without distinction or discrimination of any kind. This is said to arise from the refusal of his practising certificate.
Paragraphs 92-109 assert breaches of ss 40B and 40C of the Human Rights Act. Paragraph 95, which is sought to be struck out, provides:
95.The tactics adopted by the Defendants and Mr Reis, a servant of the Defendants, and on behalf of the first and second defendants, held the [plaintiff’s] certificate for 7 years despite no finding of guilt. The tactics include lying to the Plaintiff and the Council and seizing without treating the practising certificate application of the plaintiff for reconsideration since 2017, till date.
Paragraph 103(a) which appears as a particular of the claim that the first and second defendants “abrogated the plaintiff’s Human Rights, made him sub-human including taking his human right to work with impunity” alleges:
(a)The servant of the Defendants, Mr Robert Reis previously provided a malicious and dishonest memorandum against the plaintiff’s certificate to work and still use same on 30 September 2020 to prevent the plaintiff from working.
Paragraph 107, which the defendants seek to have struck out, provides:
107.The defendants have no remorse or flexibility, as they had or have to others, other than to prevent the plaintiff from work and deny him any form of human right that the plaintiff may have or enjoy, the defendants told lies including that judgment was reserved as at 24 September 2018 to support their desire to deny the plaintiff the human right to work and despite the Defendants’ knowledge that the Supreme Court gave its judgment, five days earlier, on 19 September 2018.
Paragraphs 110-115 of the pleadings allege a breach of s 12(b) of the Human Rights Act, the right not to have one’s reputation unlawfully attacked.
Paragraphs 116-119 relate to the failure of the defendants to interpret the Legal Profession Act 2006 (ACT) in a manner consistent with s 30 of the Human Rights Act.
Paragraphs 120-124 allege a breach of s 10(1)(b) of the Human Rights Act which provides that no one may be treated or punished in a cruel and inhuman or degrading way.
Paragraphs 125 and 126 allege a breach of art 6 of the International Convention on Economic, Social and Cultural Rights being a right to the opportunity to gain a living from work. This is alleged to be a breach of ss 7 and 31 of the Human Rights Act.
Paragraphs 127 and 128 allege that the defendants “caused the plaintiff social isolation and disintegration of his personality and reputation” by failing to protect against unemployment and breaching art 23 of the Universal Declaration of Human Rights which guarantees everyone the right to work and protection against unemployment.
Paragraphs 129 and 131 allege a breach of art 1(2) of International Labour Organisation Convention No 122 which provides an obligation on each member to ensure that “there is work for all who are available for and seeking work”. This is said to be a breach of s 7 of the Human Rights Act.
Paragraphs 132 and 133 allege a breach of art 1(2) of the European Social Charter which is said to provide an obligation to protect the right of a worker to earn a living in an occupation freely entered upon. This is said to be a breach of s 7 of the Human Rights Act.
Paragraphs 135-138 allege a breach of s 98 of the Human Rights Commission Act2005 (ACT) which involves a prohibition on victimisation of a person who has made a complaint, exercised function or provided information under the Human Rights Commission Act or is believed to intend to do so.
Paragraphs 139-143 allege a breach of s 68 of the Discrimination Act 1991 (ACT) by “treating the Plaintiff with victimization and discrimination” by denying him a practising certificate when it was willing to give others a practising certificate.
Paragraphs 144-147 allege that the defendants failed to take into account the effect of its decisions on the plaintiff’s eight children and his family “including those family member [sic] denied protection leading to death by the effect of economic strangulation of the plaintiff”. This is alleged to be a breach of s 11 of the Human Rights Act, which is titled “Protection of the family and children”.
Paragraph 148 asserts that by virtue of s 7 of the Human Rights Act the plaintiff invokes the protection of s 117 of the Constitution and the Australian Human Rights Commission Act 1986 (Cth). It is not clear whether this is intended to be a separate cause of action or related to the cause of action which precedes or follows this paragraph.
Paragraphs 149-151 refer to the terms of ss 46PO(4), 26 and 19A of the Australian Human Rights Commission Act. However, there is no pleading which articulates how these provisions may be relevant.
There is then a heading “Relief” which sets out 32 paragraphs referring to relief. Some of those appear to be categories of damages that might be awarded, others are different forms of relief.
The Statement of Claim then continues. The first heading in the continued portion of the Statement of Claim is “Defamation”. A claim in defamation is articulated at paragraphs 152-165 and is said to arise from a memorandum and a letter to the chief police officer in September 2020.
Paragraphs 166-177 then articulate a claim in negligence and breach of statutory duty. Although the claim is difficult to understand, it appears to relate to a delay in processing his application and the assertion that had there not been such delay then he would not have been defamed in 2020.
Paragraphs 178-190 appear under the heading “Further Particulars of Negligence, Breach of Statutory Duty and Breach of Common Law Duty of Care”. Paragraph 186, a paragraph the defendants seek to have struck out, provides:
186.The liberty given to Mr Reis the Defendants’ servant after knowledge of the corrupt and unlawful conduct of Mr Reis made it easier for Mr Reis to be unable to control his emotion of hatred which he had since 2008 such that in 2016 he exhibited that by hiding away the [plaintiff’s response] to Council and published complaint of “Lethal Violence” to defame the plaintiff once more and belittle the plaintiff before the Council as a worthless person in 2020.
Paragraphs 191-194 appear under the heading “Further Particulars of Malice, Recklessness, Dishonesty and Breach of Duty of Care”. It alleges that the defendants’ servant Mr Reis engaged in “wilful misconduct in public office using his office to oppress the plaintiff to deny him certification and hence, preventing the plaintiff from work”. Paragraph 192, which is said to be particulars of [191], involves a number of assertions of lies by “the defendants’ servant”, by Mr Reis and includes the particular: “But for overwhelming malice, dishonesty and recklessness or negligence, the Defendants’ servants would not have lied to the Court, Tribunal, Chief Police Officer or other places knowing the consequence of lying as an institution of law.”
Paragraphs 195-202 appear under the heading “Particulars of Malice, Recklessness and Dishonesty Continue”. Paragraph 195, which the defendants seek to have struck out, asserts that the plaintiff made offers to the defendants’ servants to pay a costs order. It alleges that Mr Reis refused the offer. Amongst the “further particulars” is the following: “(b) the malice and dishonesty are so embedded that the fact that the plaintiff has an African heritage and being without certificate for over 5 years was not enough punishment”.
Sub-paragraph (e) of these particulars also alleges “malice and dishonesty to stop the plaintiff’s work by all means”.
Paragraph 198 appears to assert that the plaintiff had been treated less favourably than other lawyers in similar situations. Subparagraph (d), which the defendants seek to have struck out, provides:
(d)But for malice, unlawful conduct of the defendants, and dishonesty of the defendants and its servants the plaintiff is entitled to get better treatment including options than those found guilty of professional misconduct or facing serious criminal trials for organised crime and acting against the National Security of Australia, and whom that the Defendants and their servants gave certificate to work or better and favourable options to work and feed themselves and their families.
In [199] the plaintiff appears to be providing particulars of malice on the part of Mr Reis. Paragraph 199(c), which the defendants seek to have struck out, asserts that “the defendants’ servants dishonestly in September 2020 presented a memorandum with malice of “lethal violence” to sensitize unsuspecting Council members with clear intention to stop approval of the plaintiff’s certificate.”
Paragraph 200, which the defendants seek to have struck out, asserts that Mr Reis instructed a lawyer, who misled the court that the sequestration orders being sought by the Law Society against the plaintiff would not be used against the plaintiff’s practising certificate.
Paragraph 202 provides particulars of the pleading that: “The first [defendant’s] default answer to anything asked for by the plaintiff was NO”. Subparagraph (e) provides:
(e)Defendants’ servants wrote a malicious letter of status after the plaintiff had returned to Canberra from Darwin and had lost all the job opportunities, that letter was written by the [defendants’] servant on 24 September 2018 including telling lies that the Court has reserved judgment though they were aware that judgment was delivered, five days earlier, on 19 September 2018.
Paragraphs 203-207 appear under the heading “Particulars of Malice, Recklessness and Dishonesty Continue”. Five subparagraphs of paragraph 203 are sought to be struck out. These are:
(a)Mr Reis knowingly with dishonesty [provided] memo excluding all options for the plaintiff to work 2015/2016 and 2020/2021 financial year, in our Country of “fair-go”.
…
(d)Mr Reis, servant of the defendants provided memo and recklessly or dishonestly insert [sic] that the plaintiff was someone who threatened with “lethal violence” to tarnish the plaintiff with motive to stop his certificate to work, Mr Reis achieved that motive.
…
(f)Mr Reis instructed Mr Phelps and Hijazi lawyers to mislead a Court of law that the defendants will not use the bankruptcy it was seeking against the plaintiff’s certificate.
…
(s)Mr Reis lied in his recommendation once more that the Plaintiff was consistently late and accepted that his recommendation was not true when challenged in the Tribunal.
…
(u)Mr Reis dishonestly in concert with others planned the recommendation with Mr Phelps with intention to debar the plaintiff with false allegation of “lethal violence”.
Following [207] there is a heading “Relief”. This includes 31 paragraphs which are in similar terms to the earlier 32 paragraphs claiming relief, except it does not include a claim for declaratory relief.
Paragraphs 208-218 appear under the heading “Unconscionability: Unconscionable Conduct”. It alleges that the plaintiff was “disadvantaged and vulnerable by virtue of the fact that he is a hunted Blackman that has resisted oppression and still [resists] oppression”. Paragraph 213 alleges that the failure to give him a practising certificate was “unconscionable and malicious”. It also alleges that the conduct of the defendants was “misleading and deceptive”.
Paragraphs 220-239 appear under the heading “Commonwealth Constitution Section 117”. These paragraphs allege that the defendants and their agents discriminated against the plaintiff and caused him disability contrary to s 117 of the Constitution. Under the heading “Relief” the plaintiff seeks almost identical relief to that sought earlier.
At [7] of the defendants’ Defence, the defendants address paragraphs which they now seek to strike out. It says, inter alia, that the plaintiff has failed to provide any particulars of the allegations of lying and dishonesty, that they are scandalous, embarrassing and made without any basis and that they amount to an abuse of process.
The plaintiff filed a Reply. This is also said to be a response to the request from the solicitors for the defendants to outline the facts, matters and circumstances that he relies upon to contend that the individual who he alleges told the lie knew the statement made was untrue or was recklessly indifferent to its truth or falsity. The Reply has 346 paragraphs. In addition to being prolix, it is argumentative, includes matters in the nature of submissions and case references, and includes matters which are not properly in reply. The paragraphs in the Reply which the defendants seek to have struck out generally contain allegations of lying or dishonesty. In some cases, those are assertions directed to the conduct of Mr Reis or other identified persons. In other cases, the reference is simply to the defendants.
Application to strike out identified paragraphs
The application sought that identified paragraphs in the Statement of Claim and the Reply be struck out pursuant to r 425(1) of the Court Procedures Rules. That is on the basis that the plaintiff alleges that on numerous occasions between 2008 and 2021 the defendants, their servants and legal representatives have engaged in corrupt, unlawful and dishonest conduct including deceiving courts and tribunals and lying under oath. The defendants’ complaint is that the plaintiff has failed to plead or particularise specifically the allegations of fact relied upon in order to make such claims of grave impropriety. The defendants contend that he has thereby deprived the defendants of the opportunity of knowing the case they are required to meet and hence a fair trial of the allegations in the identified paragraphs.
The defendants also contend that the identified paragraphs have been made without any basis and hence involves an abuse of the process of court.
They also contend that the paragraphs are scandalous, embarrassing and vexatious.
The submissions of the defendants gave examples where the pleading claimed:
(a)Dishonesty/lying.
(b)Deceiving/misleading courts or the ACAT.
(c)Instructing and/or authorising lawyers engaged by or on behalf of the first defendant to deceive courts and the ACAT.
(d)Lying under oath.
(e)Making false affidavits.
(f)“Hiding” information from the Supreme Court.
(g)Use of deception as part of “tactics” developed “in concert” between the defendants and its officers and employees.
(h)Concocting allegations against the plaintiff.
(i)Corrupt and unlawful conduct.
(j)An abuse of power.
(k)Malice.
These are obviously serious allegations. They are made against the body established under statute with statutory responsibilities for the maintenance of professional standards within the legal profession.
The defendants relied upon those authorities that emphasise that the pleading of allegations of fraud and dishonesty are serious matters and that if fraud is alleged, it must be pleaded specifically and with particularity. Relevant authorities include Reifek v McElroy (1965) 112 CLR 517 at 521; Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 285-286; Shergold v Tanner [2000] FCA 1420; 102 FCR 215 at [53]; Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201 at 203-204. The defendants also pointed to the requirement for particularisation of the facts underlying a claim of malice: see Calabro v The State of Western Australia [No 3] [2014] WASC 84 at [39]. These principles are contained in rr 407(1)(h) and (j) of the Court Procedures Rules.
The defendants submitted that it was insufficient to make allegations in vague, general and conclusionary terms without specifying the material facts which are said to establish that conduct.
As a result, the defendants contend that the pleading is embarrassing because 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”: Szanto v Bainton [2011] NSWSC 985 cited in Picos v Commonwealth Bank of Australia [2015] ACTSC 56 at [48]. It thereby is embarrassing and prejudicial to a fair hearing within the terms of r 425 (1)(b) of the Court Procedures Rules. Alternatively, the defendants contend that the making of the allegations of fraud without a proper basis is an abuse of process. They recognise that a court will exercise caution before striking out the pleading as an abuse of process if the deficiency in the pleading can be remedied by a statement of particulars. In the circumstances of this case, the defendants contend that that opportunity has been given and not taken up by the plaintiff.
The paragraphs of the Amended Statement of Claim and Reply that are sought to be struck out are extensive. They are as follows:
(a)Amended Statement of Claim: 15, 41, 53, 77, 81, 82, 84, 88, 95, 103(a), 107, 186, 192, 195, 198(d), 199(c), 200, 202(c), 202(e), 202(h), 203(a), 203(d), 203(f), 203(s) and 203(u).
(b)Reply: 6 (first appearing, 8 (first appearing), 9 (first appearing), 10 (second appearing), 11, 12, 14, 15, 17, 37, 55, 59, 68, 70, 82, 84, 88, 110, 112, 115, 116, 117, 118, 122, 124, 125, 126, 127, 129, 130, 131, 134, 138, 141, 144, 152, 154, 173, 174, 175, 176, 177, 179, 180, 181, 184, 186, 187, 192, 204, 210, 213, 215, 217, 220, 230, 231, 234, 235, 236, 238, 240, 241, 242, 243, 249, 250, 251, 252, 253, 254, 255, 257, 259, 266, 270, 271, 272, 273, 277, 278, 290, 291, 292, 299, 303, 310, 353 and 354.
The description of the paragraphs in the Reply which are sought to be struck out by the defendants must involve some erroneous references. The Reply dated 30 August 2021 comprises a preamble containing six paragraphs and then a 346-paragraph reply. “[Paragraph] 6 (first appearing)” which is referred to in the defendants’ application is in the preamble but makes no reference to lying, dishonesty or other matters of which the defendants complain. “[Paragraph] 8 (first appearing)” and “[paragraph] 9 (first appearing)” are within the Reply and those numbers are not repeated, suggesting that the reference to “first appearing” does not make sense. Similarly, the reference to “[paragraph] 10 (second appearing)” does not make sense because there is no [10] in the preamble. The reference to [10] appears to be to [10] of the Reply, which makes reference to the defendants being “malicious, dishonest and at the least reckless”. At the end of the list of paragraphs sought to be struck out are [353] and [354], however there are only 346 paragraphs and the Reply and hence these paragraph references must be erroneous.
So far as the substance of the application is concerned, I accept the submissions made by the defendants. They are entitled to have serious allegations properly pleaded and particularised. The fact that the plaintiff asserts malice or lies on numerous occasions and does so without apparent recognition of the gravity of the allegations and the need for precision in such applications should not lead the court to treat them in the same manner. If such allegations are to be made, then the rules and fairness to the defendants requires that they be properly pleaded and particularised. The plaintiff has had an opportunity to remedy the defects in his pleading through the provision of particulars. He has attempted to do that through the terms of his Reply. A Reply is not an appropriate vehicle for remedying defects in the Statement of Claim through the provision of additional particulars. However, leaving that aside, the Reply is of such a length and so lacking in coherent structure that it does not, as a matter of substance, fulfil the requirement to particularise the claims of dishonesty, lying etc. The defendants should not be required to hunt through such an incoherent document searching for what might be particulars of grave allegations. They are entitled to have a matter properly pleaded in accordance with the rules.
Although the challenged paragraphs are to be struck out, the plaintiff should have one more opportunity to properly plead his claim and hence leave will be given to file an Amended Statement of Claim if he wishes to.
Application for security for costs
The defendants rely upon r 1901(h) of the Court Procedures Rules which provides that the court may order security for costs if satisfied that “the justice of the case requires the order to be made”. The defendants accept that the impecuniosity of an individual is not a sufficient basis for the ordering of security for costs in respect of proceedings at first instance because to do so would erect a barrier to access to justice. However, they contend that the true principle is that “mere impecuniosity” or impecuniosity
“without more” will not be a sufficient ground for ordering security for costs. That principle is reflected in Matsebula v Reynolds [2016] ACTSC 55 at [22]; Robson v Robson [2008] QCA 36 at [34] and Mohareb v Harbour Radio Pty Ltd [2020] NSWCA 231 at [14].
The evidence establishes the various costs orders that have been made against the plaintiff in favour of the first defendant. Those include:
(a)SCA 75 of 2017, the application for leave to appeal against a decision of the ACAT which resulted in the judgment of Crowe AJ: Ezekiel-Hart v Reis (Leave to appeal) [2019] ACTSC 193, the bill of costs being drawn at $48,748.65 and subsequently the subject of a default assessment which is the subject of a notice for reconsideration given by Mr Ezekiel-Hart.
(b)SC 433 of 2017, a claim against the Council of the Law Society, its professional standards manager and its then president which was dismissed: Ezekiel-Hart v Reis (No 2) [2019] ACTSC 192, where the bill of costs was drawn at $102,184.27 and subject to a default assessment in the sum of $100,744.27 which is the subject of a notice for reconsideration given by Mr Ezekiel-Hart.
(c)Applications for leave to appeal from those decisions which were dismissed: Ezekiel-Hart v Reis [2019] ACTCA 31, where the costs were assessed at $25,530.45.
(d)An order in the current proceedings arising out of the decision of McWilliam AsJ: Ezekiel-Hart v The Council of the Law Society of the ACT & Anor [2021] ACTSC 133 where the bill was drawn at $17,475.57.
(e)A costs order arising out of an application for leave to appeal from directions made by Crowe AJ in the current proceedings which was dismissed by Mossop J on 6 October 2021, where the costs have been estimated at $6040.
No payments have been made by the plaintiff in relation to these costs orders. The existence of these substantial earlier costs orders provides the background for the current application for security.
The defendants submit that the matters in addition to impecuniosity which, when combined, justify an order for security for costs are:
(a)The plaintiff’s history of instigating unsuccessful litigation against the first defendant.
(b)The unmeritorious nature of the claims in the Statement of Claim.
(c)The plaintiff’s failure to comply with adverse costs orders and the unlikelihood of future compliance.
(d)The wide-ranging and convoluted nature of the claims in the Statement of Claim.
(e)That the plaintiff has a specific statutory right of appeal against any decision to refuse to grant him a practising certificate under s 81 of the Legal Profession Act and would retain that right even if an order for security was made and the proceedings stayed as a result.
The following matters favour a grant of security:
(a)There is a very long history of unsuccessful litigation by the plaintiff against the Law Society, Mr Reis and other individual defendants. This is summarised in the table at [2] above.
(b)The present proceedings are likely to involve significant additional expense on the part of the defendants. These expenses are likely to be substantially increased because of the defective manner in which the claims against them have been pleaded. The variety of causes of action, the confusing and prolix nature of the pleadings, the gravity of the assertions made in those pleadings and the period of time which they encompass are all likely to require significant costs to be incurred.
(c)The prospects of the plaintiff obtaining orders in his favour appear to be poor. Although it is not appropriate for the purposes of this proceeding to engage in any detailed assessment of prospects, a number of matters may be noted:
i.many of the matters that referred to in the pleadings have been the subject directly or indirectly of earlier proceedings in which the plaintiff has not been successful;
ii.the plaintiff is not entitled to recover damages in relation to his causes of action purporting to rely upon the Human Rights Act; and
iii.it is not clear how the plaintiff could be entitled to the issuing of a practising certificate as part of any final relief granted in these proceedings given that he has not exercised his right of appeal under s 81 of the Legal Profession Act and the proceedings are not before a Full Court: Supreme Court Act, s 11.
(d)Having regard to the passage of time, he is entitled to make an application for a practising certificate in relation to a subsequent year to that which is the subject of these proceedings. If that application is refused, he retains the right of appeal under s 81 of the Legal Profession Act.
However, four points tell against the granting of security:
(a)The plaintiff is an individual and does not fall into any of the other categories in r 1901 of the Court Procedures Rules.
(b)The plaintiff is seeking to challenge, albeit indirectly, a decision of the Law Society relating to a practising certificate which is a precondition to him earning an income as a lawyer and hence not being impecunious.
(c)The awarding of security for costs will have the effect of stifling the proceedings because he is unlikely to be able to meet the requirement for security. Although there was no evidence put on by the plaintiff as to his financial affairs, he was bankrupt between 2013 and 2017 and his persistent pursuit of proceedings against the Law Society in relation to his practising certificate is consistent with him not having another source of significant income.
(d)The Law Society is a regulatory body with responsibilities under the Legal Profession Act to make statutory decisions relating to the grant or refusal of practising certificates. Because it exercises these public functions, it is distinct from a private litigant without those public functions and hence a court may be less willing to make an order for costs in its favour.
There is a foundation for the application for security. It is not merely a case of impecuniosity. Rather, there are a series of other features which in combination with impecuniosity may warrant an order for security.
However, the rule in relation to security is to protect the defendants’ position in relation to costs. In a regulatory context such as this in relation to the issuing of practising certificates, great caution should be exercised in relation to an order for security where a reasonably arguable case is identified. In the present case, while the pleadings at the moment are prolix and incoherent and liable to be struck out as either disclosing no reasonable cause of action or embarrassing, were there to be coherent pleadings describing a reasonably arguable case, then it is clearly a matter in which security would not be ordered. Having regard to the plaintiff’s history of litigation and the terms of the pleadings and submissions made in this matter, there is a real prospect that the plaintiff will be unable to articulate a reasonably arguable claim in a manner consistent with the rules of pleading and substantive fairness to the defendants. I do not consider that it is appropriate to prevent him from making a further attempt to do so by reason of an order for security for costs where the real complaint is the incoherence of the claim and its lack of substantive merit. It is more appropriate that the issue of incoherence or lack of merit be squarely addressed and if, as a matter of substance, the proceedings are to be summarily terminated, that be done because of their lack of merit or incoherence rather than by an indirect route which combines an assessment of the incoherence with the impecuniosity of the plaintiff.
Orders
The orders of the Court are:
1.Pursuant to r 425 of the Court Procedures Rules 2006 (ACT), paragraphs 15, 41, 53, 77, 81, 82, 84, 88, 95, 103(a), 107, 186, 192, 195, 198(d), 199(c), 200, 202(c), 202(e), 202(h), 203(a), 203(d), 203(f), 203 (s), 203(u), of the Statement of Claim dated 28 July 2021 are struck out.
2.Pursuant to r 425 of the Court Procedures Rules 2006 (ACT) paragraphs 10, 11, 12, 14, 15, 17, 37, 55, 59, 68, 70, 82, 84, 88, 110, 112, 115, 116, 117, 118, 122, 124, 125, 126, 127, 129, 130, 131, 134, 138, 141, 144, 152, 154, 173, 174, 175, 176, 177, 179, 180, 181, 184, 186, 187, 192, 204, 210, 213, 215, 217, 220, 230, 231, 234, 235, 236, 238, 240, 241, 242, 243, 249, 250, 251, 252, 253, 254, 255, 257, 259, 266, 270, 271, 272, 273, 277, 278, 290, 291, 292, 299, 303 and 310 of the Reply dated 30 August 2021 are struck out.
3.The plaintiff has leave to file an amended Statement of Claim within 28 days after the date of this order.
4.Except as provided by orders 1 and 2, the application in proceeding dated 8 September 2021 is dismissed with costs reserved.
5.The proceedings are listed for further directions before the Registrar on Friday 1 April 2022 at 9:30am.
6.Each party is to file written submissions limited to not more than three pages in relation to the costs of the application in proceeding dated 8 September 2021 within seven days after the date of this order.
7.Note the Registrar should consider whether the case management of this matter should be allocated to a judge or the Associate Judge.
| I certify that the preceding seventy-nine [79] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 25 February 2022 |
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Amendments
| 25 February 2022 | Replace “applications in proceedings dated 8 September 2021 and 25 January 2022” with “application in proceeding dated 8 September 2021" | Order 6 |
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