Ezekiel-Hart v Council of the Law Society of the ACT (No 3)
[2022] ACTSC 300
•3 November 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ezekiel-Hart v Council of the Law Society of the ACT (No 3) |
Citation: | [2022] ACTSC 300 |
Hearing Dates: | 21 June, 15 July, 9 September, 14 September 2022 |
DecisionDate: | 3 November 2022 |
Before: | Kennett J |
Decision: | See [86] |
Catchwords: | PRACTICE AND PROCEDURE – INTERLOCUTORY APPLICATION – strike-out and summary judgment– where pleading contains paragraphs that were previously struck out – where pleading does not identify material facts with clarity – whether pleading should be struck out – whether proceeding is vexatious and an abuse of process – whether proceeding should be summarily dismissed |
Legislation Cited: | Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth) ss 21, 22 Australian Human Rights Commission Act 1986 (Cth) Supreme Court Act 1933 (ACT) ss 11, 37J, 67A |
Cases Cited: | Aspen Medical Pty Ltd v BA Capital Inc [2021] ACTSC 321 Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; 33 WAR 82 Woolcock St Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515 |
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) Thomson Geer (Defendants) | |
File Number: | SC 239 of 2020 |
KENNETT J:
Litigation between the present parties, of one kind or another, has occupied this Court and the Court of Appeal intermittently since 2009. It has occasionally spread to the ACT Civil and Administrative Tribunal, the Federal Court and the Federal Circuit Court (as it was then known). It has twice reached the High Court in the form of unsuccessful applications by the present plaintiff for special leave to appeal. The focus of this long history of litigation has been the refusal of the first defendant (the Council) to renew or reinstate the practising certificate of the plaintiff, who formerly practised as a solicitor in the Territory. The history is summarised in the reasons of Mossop J in an earlier judgment in this proceeding: Ezekiel-Hart v Council of the Law Society of the ACT (No 2) [2022] ACTSC 29 at [2].
This proceeding itself also has a fairly long history. It was commenced on 3 July 2020, after the plaintiff was informed that his application for a practising certificate had been referred to the Council. The Council subsequently decided not to grant a practising certificate to the plaintiff. On 31 August 2020, the defendants filed an application seeking to have the Statement of Claim struck out (the first strike-out application). On 30 June 2021, McWilliam AsJ struck out the Statement of Claim pursuant to r 425 of the Court Procedures Rules 2006 (ACT) (the Rules): Ezekiel-Hart v Council of the Law Society of the ACT [2021] ACTSC 133. Her Honour refused certain other relief sought by the defendants, including summary dismissal of the proceeding.
The plaintiff filed an Amended Statement of Claim, of some 64 pages, on 28 July 2021 (the ASC). The defendants filed a Defence to this pleading on 16 August 2021. However, on the same day, the solicitors for the defendants wrote to the plaintiff seeking particulars of certain paragraphs of the ASC and an outline of the nature of the evidence upon which the plaintiff intended to rely.
The plaintiff responded by filing what was termed a Reply, comprising 50 pages, on 30 August 2021. He said at this time that he considered his Reply to contain the requested “facts, circumstances and nature of evidence”.
This prompted a further application by the defendants, which sought to strike out certain paragraphs of the ASC together with an order for security for costs (the second strike-out application). This application came on for hearing before Mossop J on 17 December 2021. On that day, his Honour dealt with a contention on the part of the plaintiff that the defendants’ application was “incompetent”, followed by an argument concerning a claim for legal professional privilege. Those matters were determined adversely to the plaintiff, who then did not return to court after lunch. Orders were made for the completion of the hearing by way of written submissions, the last of which were filed on 25 January 2022.
Mossop J delivered judgment on the defendants’ application on 25 February 2022: [2022] ACTSC 29. His Honour dismissed the application for security for costs, but struck out either wholly or in part 18 paragraphs of the ASC and 84 paragraphs of the Reply. He gave the plaintiff leave to file a Further Amended Statement of Claim within 28 days.
A Further Amended Statement of Claim (FASC) was filed on 23 March 2022. Aspects of this document are discussed later in these reasons.
Earlier, on 25 January 2022 (the same day as the last submissions on the second strike-out application were filed), the plaintiff filed an application seeking summary judgment pursuant to r 1146 of the Rules (the summary judgment application). Mossop J made orders in chambers on 4 February 2022 adjourning the summary judgment application for mention at the time when he gave judgment on the second strike-out application. He also made an order in the following terms:
4.Pursuant to r 6 of the Court Procedures Rules 2006 (ACT), the timetable for filing and service of affidavit evidence in r 1150 does not apply in relation to the application in proceeding dated 25 January 2022.
On 25 February, when judgment was delivered on the second strike out application, his Honour adjourned the summary judgment application to 7 March 2022. On that day, the application was adjourned to the hearing before a Registrar on 1 April 2022. The proceeding came before a Registrar on that day, but no orders were made relating to the summary judgment application. The same thing happened on 29 April 2022 and 6 May 2022. Nothing was done to bring the summary judgment application on for hearing until 26 May 2022.
On 7 February 2022, before his summary judgment application had been mentioned in court, the plaintiff commenced a separate proceeding in this Court seeking mandamus to require the Court to determine the application and grant the orders sought therein. That proceeding came on for hearing before me on 24 May 2022 and was dismissed the following day: [2022] ACTSC 117. In a separate judgment on 3 June 2022, I ordered the plaintiff to pay the defendants’ costs of that proceeding: [2022] ACTSC 131. The plaintiff made an unsuccessful application for leave to appeal from the costs judgment: [2022] ACTCA 33.
It was after my judgment of 25 May 2022, which pointed out that the summary judgment application was still before the Court, that the plaintiff sought a hearing date for his application. On 26 May 2022, it was set down for hearing on 15 July 2022.
Meanwhile, on 22 April 2022, the defendants filed their Defence to the FASC. They also filed another application (the second summary dismissal application). This application sought to strike out the whole of the FASC and to have the proceeding summarily dismissed under r 1147 of the Rules. It also sought certain other orders which will be discussed below. On 6 May 2022, this application was set down for hearing on 21 June 2022 and orders were made for the filing of written submissions. The timetable for submissions was later varied and the defendant filed submissions in accordance with it. The plaintiff did not file submissions. He did, however, file an application on 6 June 2022 which sought to have the second summary dismissal application itself dismissed for “want of diligent prosecution”, as “incompetent”, and for various other reasons.
The second summary dismissal application came on for hearing before me on 21 June 2022. The plaintiff submitted that the application was “incompetent” and should not be heard. One point that he made was that the defendants required leave, under r 1148(2) of the Rules, to file the application. The defendants conceded that leave was needed in so far as the application sought summary dismissal but not otherwise. Leave was sought orally.
Having heard the parties’ arguments as to whether the second summary dismissal application was properly before the Court, I indicated that I also wished to hear argument on the substance of the application. The plaintiff then told me that he was sick and needed to go home. Although there was no medical evidence, and his symptoms were not obvious (at least to me), I adjourned the hearing of the application to 15 July 2022. I granted leave to the defendants to file an Amended Application in Proceeding, including an application for leave to seek summary dismissal, which was done on 22 June 2022.
Both the second summary dismissal application and the summary judgment application thus came on for hearing before me on 15 July 2022. The previous day, the plaintiff had filed written submissions of 47 pages that addressed issues arising on both applications. The applications were adjourned part heard at the end of 15 July 2022. On 18 July 2022 the defendants filed an outline of their submissions on the summary judgment application. The plaintiff filed further written submissions, purportedly in reply, on 20 July 2022. The hearing continued on 9 September 2022 and was eventually able to be completed on 14 September 2022.
A preliminary issue
Part of the relief sought by the plaintiff is the grant of a practising certificate. That prayer for relief has obvious difficulties because the practising year in which he claims to have been unlawfully denied a certificate has expired; he does not plead matters that would entitle him to be granted a certificate now under s 44 of the Legal Profession Act 2006 (ACT) (the Legal Profession Act); and there is no evidence as to those matters.
However, a threshold question arises as to whether, in the light of that prayer for relief, the present proceeding is “a proceeding in relation to the grant … of a practising certificate under the [Legal Profession Act]” for the purposes of s 11(2) of the Supreme Court Act 1933 (ACT). If it is, then the “jurisdiction of the Court” in the proceeding must be exercised by a Full Court. Section 11(4) permits a single Judge of the Court to make findings of fact or give “directions of an interlocutory kind”; however, the applications currently before me do not come within either of those exceptions. Thus, if the proceeding comes within the terms of s 11(2), it is not possible for me as a single Judge to decide either of the applications. (Section 37J of the Supreme Court Act does not solve that problem. It allows a single Judge to exercise the jurisdiction of the Court of Appeal for specific purposes. The present case is not in the Court of Appeal; and there is an express requirement in s 11 that jurisdiction—that is, the original jurisdiction of the Supreme Court—be exercised by a Full Court.)
On balance, I think the preferable reading of s 11(2) is that it refers to proceedings for which the Legal Profession Act provides: that is, appeals under s 81 of that Act from decisions of various kinds (including refusal to renew or grant a practising certificate) by the “relevant council”. To put it another way, the words “under the [Legal Profession Act]” in s 11(2) should be understood as qualifying the whole of the phrase that begins with “a proceeding”. Clearly, it was intended that this class of “appeals” would be heard in the Court’s original jurisdiction by a Full Court. That is consistent with the traditional role of this Court in overseeing the legal profession and deciding upon rights to practise However, there may be proceedings that touch upon decisions about practising certificates in other ways (within the broad expression “in relation to”) where there is no sensible reason to require the exercise of jurisdiction by a Full Court. The present case—where an assertion of a right to a practising certificate is interlaced with several other asserted causes of action, supported by complex allegations of fact spanning a decade—is an example.
I have therefore come to the view that I can exercise the jurisdiction of the Court in this proceeding, including by determining the present applications.
This discussion, however, leads to some further observations which become relevant later in my reasons.
Approach to the applications
Although the plaintiff contended that his application had to be dealt with first, because it was filed first, it is necessary to deal first with the aspects of the second summary dismissal application that seek to have the FASC struck out and (subject to leave) the proceeding dismissed. That is because it would be incongruous to grant summary judgment to the plaintiff if his claim is one which ought to be dismissed or if it has not been pleaded in a manner that the defendants can be expected to respond to.
Summary dismissal or strike-out of the FASC
The FASC is a daunting document. It contains 239 numbered paragraphs spread over 99 pages, followed by 21 paragraphs purporting to identify the relief sought. Further, those figures give only a hint of its complexity. Paragraph 15 contains 323 sub-paragraphs, purporting to be “particulars” (but not purporting to be exhaustive), which are repeated for the purposes of several of the paragraphs that follow. Paragraph 239 then repeats (to what purpose I am yet to understand) paragraphs 14 to 240, although there is no paragraph 240.
More significantly, the FASC presents as a document drafted and settled by a person who has at best a tenuous grasp of legal principle and principles of pleading, and who has such strong opinions about the subject matter as to be incapable of any degree of detachment. It is convoluted, repetitive and conclusory. To the extent that it identifies specific facts it does not proceed chronologically, and often does not identify the date of the event or document that is being referred to. It refers to alleged “admissions” without identifying when or how they were made, or properly identifying their content. It makes no separation between allegations of fact and more or less sweeping conclusions (often of bad faith and sometimes of outright dishonesty) based—although it is hard to be sure—on those facts.
In its structure and the contents of its substantive paragraphs, the FASC is identical to the ASC. It is therefore sufficient to adopt, without repeating, Mossop J’s summary of that document: [2022] ACTSC 29 at [14]–[56].
Competence of the defendants’ application
Aside from his contention that the defendants required leave in order to seek summary dismissal (which was accepted), there is no force in the plaintiff’s arguments that the application was incompetent or otherwise should not be entertained. The argument appeared to be based on an understanding that an application for leave needed to be made, supported by an affidavit, and leave granted before the summary dismissal application could be filed. That is incorrect. Even in contexts where a requirement for leave is imposed by primary legislation (eg, a requirement for leave to appeal), rather than by way of the Rules (which can be dispensed with at the Court’s discretion), it is common for a leave application to be contained in the same document as the substantive proceeding and to be argued at the same time. Once the need for leave was pointed out, it was orthodox for the defendants to include a prayer seeking leave in their Amended Application in Proceeding and for the question of leave to be canvassed at the same hearing as the substantive prayers.
The case for striking out the FASC
A striking feature of the FASC is that it includes all of the paragraphs of the previous iteration of the statement of claim that were struck out by Mossop J, identically numbered and worded. Prima facie at least, these paragraphs are liable to be struck out in deference to his Honour’s order and for the reasons that his Honour gave. Indeed, to file a document containing exactly the material previously ordered to be struck out borders on contemptuous. Given that the paragraphs have already been struck out there is a real question whether the FASC, to the extent that it contains these paragraphs, should be taken to be before the Court at all.
The plaintiff also submitted in writing, as a further example of what he says is a long history of deceptive behaviour by the defendants, that the defendants had misled Mossop J. He argued that his Honour had been induced to strike out various paragraphs on the footing that they contained allegations of “fraud” when in fact they did not make that allegation. This was put (and maintained in oral argument) even though no application was made for leave to appeal from the judgment of Mossop J. The submission is obviously incorrect for at least two reasons, and I have difficulty accepting that it was made in good faith. First, the impugned paragraphs of the ASC all asserted bad faith, dishonesty or deception on the part of the defendants and certain of their officers. These, the plaintiff should know, are species of “fraud” for the purposes of the principles that require allegations of fraud to be made with clarity and to have a proper foundation. Secondly, Mossop J had the ASC before him and carefully analysed its contents; so that the suggestion that he was deceived by the defendants in his characterisation of what the document alleged is preposterous (as well as disrespectful to his Honour).
The plaintiff also argues, as I understand it, that the paragraphs previously struck out by Mossop J now take on a different aspect because in the FASC they are explained by extensive particulars. I doubt whether that could be sufficient in principle, because the order made by his Honour was not that further and better particulars be provided for these paragraphs; it was that the paragraphs be struck out. Prima facie at least, that requires a reformulation of the substantive paragraphs of the FASC in clearer terms and with specific factual allegations separated out from each other, so that the allegations of fraud (and their basis) can be understood and traversed in a defence.
In any event, the purported particularisation of the claims is itself confusing, scandalous, diffuse and ultimately oppressive. Rather than set out a distinct allegation and then indicate the facts that are intended to be proved in order to make it out, the FASC includes 323 numbered propositions as so-called particulars to paragraph 15. Paragraph 15 itself is a rolled up, non-exhaustive description of what are termed “these tactics”, intended (presumably) to ampify a reference to “tactics” somewhere else in the document. It is as follows:
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.:
For the purposes of paragraph 15 Particulars of Tactics of lies, unconscionable conduct, defaming materials, 15(i) to 15(cccxxxiii) sets out the circumstances, and facts of overwhelming malic, dishonesty, recklessness (which the defendants have admitted), unfavourable treatment and discrimination causing disability includes:
The 323 paragraphs of so-called particulars end with this statement in bold text:
From paragraph 15(i) to 15(cccxxxiii) sets out the circumstances and facts of overwhelming malice, dishonesty, recklessness (which the defendants have admitted), tactics of lies, unconscionable delay, defaming materials and wilful misconduct in public office using position of office to oppress, defame, bully and intimidate the plaintiff to deny him certification and hence, preventing the plaintiff from work
Thus, everything is wrapped up together as a description of “tactics”. I was told by the plaintiff that he had taken this term from s 22 of the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth) (Consumer Law), which is a provision listing relevant factors for the purpose of determining whether a person has breached s 21. Breach of s 21 and other provisions of the Consumer Law is alleged in the FASC, although to what purpose is unclear because the remedial provisions in Part 5-2 of that Law are not invoked. The assertion of a breach of s 21 is clearly unlikely to succeed (to say the least) because the conduct of the defendants which is complained about did not occur “in trade or commerce” or involve the “supply or possible supply of goods or services to a person”. Even if it has some prospects of success, the transposition of the concept of “tactics” into a pleading apparently intended to support other causes of action is at best unhelpful.
Which of the so-called particulars go to which allegations in the FASC remains a mystery. The mystery becomes no clearer when it is observed that the 323 so-called particulars are repeated as particulars to several of the other paragraphs that were struck out by Mossop J but reappear in the FASC.
Further, as counsel for the defendants observed, many if not most of the so-called particulars are not in truth particulars of allegations in the FASC. They are further, or overlapping, allegations of fraud of various kinds (some involving allegations against persons not named in substantive paragraphs of the pleading). Many are conclusory or completely unspecific as to when and in what way the alleged acts of dishonesty occurred.
Moving beyond the paragraphs that were struck out by Mossop J, the general features of the FASC that I have noted above indicate that it should be struck out. Manifestly, the FASC does not—as r 406(1)(b) of the Rules requires—contain “a statement in a summary form of the material facts on which the party relies”; rather, it is shot through with conclusory statements whose factual foundations are elusive. Causes of action are identified, but the facts said to establish the elements of those causes of action are not identified with any clarity if they are identified at all. To take but one example, negligence appears to be asserted (at paragraphs 166–177); but it is impossible to identify the facts that are said to establish a duty of care or the precise facts said to constitute a breach of that duty. While the relief sought can be identified (cf r 406(1)(d)), the connection between that relief and particular causes of action said to arise from the facts pleaded is also unclear.
The FASC does not perform what was identified in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; 33 WAR 82 at [4] as basic functions of a pleading:
the definition of the issues to be determined in the case and enabling assessment of whether they give rise to an arguable cause of action or defence as the case may be, and apprising the other parties to the proceedings of the case that they have to meet.
I am satisfied, therefore, that the FASC is liable to be struck out under any or all of r 425(1)(b), (c) or (d) of the Rules and that it should be struck out. It would tend to prejudice, embarrass or delay the fair trial of the proceeding; it is scandalous or vexatious and contains unnecessary material; and it is an abuse of the process of the Court.
Summary dismissal: leave
Before considering the merits of the defendants’ application in so far as it seeks summary dismissal of the proceeding, I must consider the issue of leave. The defendants have applied once, unsuccessfully, for summary dismissal. Pursuant to r 1148 of the Rules, they require leave in order to make a second application. The defendants submit that a grant of leave is appropriate in view of the history of the matter since the first strike-out application was determined on 30 June 2021.
That history includes the following:
(a)filing of the ASC and a defence thereto;
(b)filing of a so-called “Reply”, which is better described as a supplementary statement of claim;
(c)the second strike-out application, requiring a day in court before Mossop J, additional written submissions and a detailed judgment by his Honour striking out parts of the ASC and the Reply;
(d)two notices to admit facts—one dated 8 December 2021 (a few days before the second strike-out application was heard) seeking admission of 33 “facts”, and one dated 10 January 2022 (while the second strike-out application was part heard) seeking admission of 307 “facts”—and responses thereto;
(e)an unsuccessful application by the plaintiff for leave to appeal from an interlocutory judgment in which Crowe AJ had made orders for preparing the second strike-out application for hearing;
(f)issue of subpoenas by the plaintiff to five individuals, to produce documents and to give evidence at the hearing of the second strike-out application (which in the latter respect were set aside following another hearing before Crowe AJ);
(g)filing of the summary judgment application by the plaintiff (while the second strike-out application was reserved, and summary judgment in his favour was therefore manifestly inappropriate);
(h)separate (and misconceived) proceedings attempting to procure the success of the summary judgment application by way of mandamus, followed by the listing and pursuit of that application;
(i)various directions hearings, mentions before the Registrar and arguments in relation to costs; and
(j)filing of the FASC, the nature of which has been discussed above.
In the 16 months that have elapsed since the first strike-out application was determined, and despite all of the activity mentioned above, the case has not moved forward in any meaningful way. While the defendants have sometimes found themselves unable to comply with deadlines and have sought and been granted extensions, the lack of progress is principally due to the amorphous and confusing nature of the case as pleaded and the continuing efforts of the defendants to have it clarified. The level of activity generated (and costs incurred) can also be attributed in part to an ultra-litigious and sometimes poorly informed approach by the plaintiff: eg, seeking to subpoena witnesses for a hearing concerning pleading issues and security for costs, and commencing a satellite proceeding seeking mandamus.
In that time there have been two—and, on one view, three—further attempts by the plaintiff to articulate his case in a satisfactory way, but that is yet to be achieved. Meanwhile, considerable expense has been generated by the activity mentioned above. The first strike-out application may well have been somewhat premature to the extent that it sought summary dismissal. However, when the third version of the Statement of Claim (or the fourth, if the so-called “Reply” is viewed as an additional attempt to articulate the case) is as deficient as the first, fairness requires that the defendants be allowed to raise again the issue whether the proceeding should be allowed to continue.
Summary dismissal: merits of the application
The issues discussed under the previous heading are also relevant to whether the proceeding should be summarily dismissed, or alternatively whether there should be a further opportunity for the plaintiff to plead his claims.
Five matters arising out of what I have said so far point to the conclusion that the plaintiff should not be afforded yet another opportunity to remedy the problems in his pleading.
(a)As noted above, the FASC is the third or fourth attempt by the plaintiff to articulate his case. Rather than becoming more focused, it has grown and become more complex. Opportunities to rectify the pleading have not been taken.
(b)There have been two judgments of the Court, and at least two letters from the defendants’ solicitors, attempting to explain to the plaintiff what is required.
(c)There seems little reason to hope that a further opportunity to re-plead will result in a clearer case, or closer adherence to the standards expected of legal practitioners in relation to allegations of serious impropriety. I reach this conclusion in the light of the history of the proceeding and the plaintiff’s lengthy written and oral submissions explaining his case.
(d)The burden on the defendants has been significant, and promises to continue to be so if the proceedings are allowed to continue. This includes stress placed on 12 (by my count) individual officers by allegations of dishonesty. The defendants have obtained several costs orders against the plaintiff in this proceeding and related proceedings but have not so far been able to recover any of those costs. This indicates that the further costs to be incurred if the case continues (which will also be substantial, especially if the state of the pleadings does not improve) may not be able to be recovered.
(e)The case has also consumed substantial public resources in terms of Court time, despite not having progressed beyond the pleading stage.
There are two other considerations reinforcing my view that the proceeding is vexatious and an abuse of process.
First, the present proceeding was commenced before a decision had been made to deny the plaintiff a practising certificate. That decision was made on 21 September 2020 and then revoked, reconsidered and made again on 30 September 2020. The proceeding had been commenced in July 2020, when the plaintiff learned that his application had been referred to the Council. However, once the decision had been made, there was an avenue expressly provided for in the Legal Profession Act by which the plaintiff could appeal directly to this Court and obtain a de novo hearing of his claim for the grant of a practising certificate. He would not need to demonstrate any specific error by the Council, but would need to persuade the Court that he was eligible under the legislation for the grant of a practising certificate: Barlow v Law Society of the ACT [2013] ACTSC 68; 272 FLR 470, [53].
The plaintiff is a legal practitioner who has had many dealings with the defendants in the past concerning his attempts to obtain a practising certificate, and his submissions showed some familiarity with the Legal Profession Act. It is inconceivable that this relatively simple method of having the Court consider the merits of his application for a certificate was unknown to him. Rather than invoke that procedure, he has chosen to commence a different form of proceeding, add several other causes of action and plead a host of perceived injustices stretching back many years. One result of that has been that, through the time the proceeding has taken, any decision about his entitlement to be granted a practising certificate in 2020 is now moot.
Further, the provision of an express right of appeal in s 81 of the Legal Profession Act draws attention to the fact that the traditional power of this Court to admit legal practitioners is now qualified and hedged about by a detailed statutory scheme reposing decision-making functions in specific entities. In particular, the grant or refusal of an unrestricted or restricted practising certificate is a power vested in the Council by s 44 of that Act, and exercisable according to specified criteria. Correspondingly, this Court has no inherent power to grant a practising certificate to a practitioner: to assume such a power would be to usurp the power vested by statute in another body. Nor is the grant of a practising certificate a recognised form of relief under the general law, to which a person might become entitled by establishing a cause of action.
It was suggested in argument that the Court could grant the plaintiff a practising certificate, or order that he be granted one, as a form of relief under s 40C(4) of the Human Rights Act 2004 (ACT) (the Human Rights Act). Section 40C(4) provides that in a proceeding commenced under s 40C(2) the Court may “grant the relief it considers appropriate except damages”. While that is clearly a broad and flexible remedial power, it is one conferred on a court in a constitutional system that generally respects the separation of judicial and other powers. Relief that is “appropriate” must in my view be relief that responds to an identified breach by a public authority of its obligation under s 40B(1) and is consistent with the normal role of a court in a constitutional system of this kind (cf Minister for Immigration v Thiyagarajah [2000] HCA 9; 199 CLR 343, [20], [34] (Gleeson CJ, McHugh, Gummow and Hayne JJ)). The Court, therefore, is not at large. I do not think s 40C(4) should be construed as empowering the Court to exercise a power vested by statute in another entity.
Even if the Court does have power to grant this form of relief, the matters alleged in the FASC relate to alleged poor treatment of the plaintiff by the defendants in 2020 and at earlier times. Proof of these allegations would not serve to establish that the plaintiff currently satisfies the criteria for grant of a practising certificate. To allow this basic gap to be remedied now by a further amendment to the pleading would open up a new area of factual contest; and there is no reason why that amendment would be permitted in circumstances where the grant or refusal of practising certificates is the statutory responsibility of another entity.
It follows from these observations that, in my view, the plaintiff’s claim cannot succeed in so far as he seeks the grant of a practising certificate.
Secondly, one of the claims advanced by the plaintiff in his submissions has been considered and dismissed in earlier proceedings.
The pleading in relation to defamation (FASC paragraphs 152–165), so far as one can understand it, relies on a communication on 30 September 2020 from staff to the Council (referred to at paragraph 152). How this internal communication of the defendants involved publication of defamatory material is difficult to understand. However, paragraph 153 makes a glancing reference to a letter to the “Chief Police Officer” and then refers to a memorandum to Council of March 2016.
The 2016 memorandum was prepared for the Council by Mr Reis and described earlier dealings between him and the plaintiff and between the plaintiff and another practitioner. This was said in submissions to have contained several defamatory imputations including that the plaintiff was of a violent character. The memorandum was a communication to the Council by a senior employee; so that, again, it is not easy to grasp how the defendants are said to have published it. Nevertheless, it is apparent from the FASC and the plaintiff’s submissions that he relies in some way on the distribution of the 2016 memorandum as an instance of defamation.
The plaintiff sued both Mr Reis and the Council for defamation in relation to the 2016 memorandum in a proceeding commenced in 2017. The defamatory imputations pleaded on that occasion (set out by Crowe AJ at [17]) were the same as those now contained at paragraph 154 of the FASC. That proceeding was dismissed under r 1147(2) by Crowe AJ on the basis that the defendants had a good defence to the claims: Ezekiel-Hart v Reis [2019] ACTSC 192. No explanation was offered as to why the plaintiff is not now estopped from advancing the same claim for a second time against the Council, or why it is not an abuse of process to advance the same claim against the second defendant (the President).
Underlying merit of the plaintiff’s claims
The two particular aspects of the plaintiff’s claims that I have mentioned above constitute specific ways in which the proceeding can be said to be vexatious (by the inexplicable use of an inappropriate and over-complicated procedure, and by attempting to re-litigate a claim that has been decided). They tend to reinforce my overall characterisation of the proceeding as vexatious. They are also aspects of the proceeding that have no reasonable prospect of success.
The defendants did not advance any broader submission that the plaintiff’s claims were doomed to fail and did not seek summary dismissal on that ground. They say that, in order to make such a submission, they would need to understand properly what the claims are. I have therefore not attempted to make a comprehensive analysis of the plaintiff’s claims in order to determine whether the principle in General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 115 provides a further basis upon which the proceeding as a whole should be summarily dismissed. However, it is appropriate to mention the following points which do appear to be fairly clear.
First, for reasons outlined above, I do not think the proceeding can succeed in so far as it seeks the grant of a practising certificate to the plaintiff. Even if the conclusions I have expressed above were incorrect, the proceeding should be dismissed in so far as that form of relief is sought.
Secondly, some difficulties with the claim for damages for defamation have been referred to above. In addition to these (and potential limitation defences), the defendants are protected by s 587A of the Legal Profession Act from civil liability in respect of anything done “honestly and without recklessness” in the performance of a function under that Act or in the reasonable belief that they were performing such functions.
Evidently, the Council is sued here in relation to things that it did in the course of the decision-making required of it under the Legal Profession Act. As to the President, nothing is alleged personally against the current President of the Law Society; it appears that she is being sued in her capacity as President and on the basis that she is the officer legally responsible for acts and omissions of the Law Society’s employees. I do not think there is any real scope for doubt that the defendants are protected by s 587A from liability for the things alleged against them, if those things were done “honestly and without recklessness”.
The plaintiff submits that the statutory defence in s 587A does not apply, on the basis that everything done in relation to him by the defendants and their senior employees has been dishonest or reckless. Unsurprisingly, also (given what I have said above about the FASC), he has not distinctly pleaded dishonesty or recklessness in relation to particular acts for the purposes of excluding the operation of s 587A.
However, the plaintiff argued his summary judgment application, in substance, as if it were the trial of the proceeding, including by taking me to the documentary evidence that he relied on to make out his substantive claims. This was an unorthodox approach to a summary judgment application, but it allowed me to see the plaintiff’s factual case at its highest. I did not find in that evidence any persuasive indication of dishonesty or recklessness on the part of the defendants or their staff. Rather, I was urged to infer malicious intentions from what were on their face innocent communications. The existing evidence (which I infer is the material upon which the plaintiff relied in framing his pleadings and prayers for relief) does not come anywhere near what would be required (in the light of s 140(2)(c) of the Evidence Act 2011 (ACT)) to exclude the operation of s 587A.
Thirdly, s 587A is equally applicable to the claim for damages for negligence.
Another major difficulty faced by the negligence claim lies in the need to establish that the defendants (being the entity responsible for regulating legal practice by solicitors, including the right to practise, and its President) owed a duty of care to the plaintiff (who was, relevantly, an applicant for a practising certificate and a person whose practising certificate had not been renewed). The problem is twofold.
(a)The vulnerability of the plaintiff is an important requirement for the existence of a duty of care to avoid economic loss: Woolcock St Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515, [23] (Gleeson CJ, Gummow, Hayne and Heydon JJ). “Vulnerability” in this sense refers to a plaintiff’s inability to protect itself from the consequences of a want of reasonable care on the part of the defendant. Here, assuming that the defendants failed to take reasonable care in deciding whether to grant the plaintiff a practising certificate, he had an unqualified right of appeal from that decision to this Court. As noted earlier, such an appeal would afford a hearing de novo. That right of appeal gave the plaintiff an ability to protect himself against the consequences of any wrong decision by the defendants, including one caused by negligence: cf Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278; 74 NSWLR 102 (Precision Products), [105], [110]–[111] (Allsop P, Beazley and McColl JJA agreeing)).
(b)The Council is the repository of statutory powers under the Legal Profession Act and the plaintiff’s claims concern its exercise of those powers. The President is a participant in its deliberations, and may also be understood to be responsible for overseeing the staff who assist the Council in those deliberations. The Council’s powers are to be exercised in the public interest and in furtherance of the objects of the Act, which include “regulation of legal practice in the ACT in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally”: s 6. Imposition of a duty on the defendants to take into account the interests of an applicant for a practising certificate and protect that person against unwarranted economic loss would be incompatible with the proper performance of their function. The creation of such a tension between the statute and the common law is not to be permitted: Precision Products, [113]–[114], citing Sullivan v Moody [2001] HCA 59; 207 CLR 562.
For these reasons, so far as the claim for damages can be understood from the FASC and the plaintiff’s submissions, it does not appear to have any reasonable prospect of succeeding.
Fourthly, the argument based on s 117 of the Constitution (which received significant attention in the plaintiff’s submissions) clearly cannot support a claim for any of the relief sought. Section 117 of the Constitution protects a resident of a State against discriminatory treatment in another State. Putting aside the question whether the section has any operation at all in relation to a Territory, two obvious impediments arise.
The first impediment is that, as a constitutional provision, s 117 is a restraint on governmental powers rather than a direct source of legal rights. No private cause of action arises directly from it; at most, it might found an argument that some specified legislative or executive act is invalid, leading to a public law remedy such as certiorari. No such remedies are sought here (and any such relief in relation to the refusal of a practising certificate for the 2020 practising year would be futile).
Even then, the High Court has recently clarified that two questions arise when something purportedly done under statute is alleged to infringe a constitutional limitation: first, whether the statute is within legislative power, including whether it infringes the limitation (a constitutional question); and second, whether the exercise of power was authorised by the terms of the statute (a statutory question): see eg, Commonwealth v AJL20 [2021] HCA 21; 391 ALR 562, [43]. It has not been contended that the terms in which power is conferred on the Council by s 44 of the Legal Profession Act infringe any constitutional limitation. That is the end of any constitutional argument.
The second impediment is that there is no evidence whatsoever of any adverse treatment of the plaintiff on the basis of his residence in another State. He has asserted that he is a former resident of Tasmania. Possibly, s 117 might be held to prohibit discrimination based on former residence in another State. However, there is not the slightest indication of a connection between former residence in another State and any aspect of his treatment by the defendants.
Fifthly, the plaintiff invokes the rights contained in ss 8, 10, 11, 12, 17 and 27B of the Human Rights Act, together with the obligation of public authorities to act consistently with those rights (s 40B) and the jurisdiction of this Court under s 40C to enforce that obligation. Section 40C expressly does not confer a power to award damages and, for reasons already mentioned, does not provide power to grant the plaintiff a practising certificate. On the basis (which the defendants were content to assume) that the Council is a “public authority”, a breach by it of one of the provisions mentioned might lead the Court to order an apology (which is sought) or grant a declaration (which is also sought, although with no indication of the terms of any proposed declaration).
Of course, the rights protected by the Human Rights Act are not absolute; they may be subject to reasonable limits set by laws that can be demonstrably justified in a free and democratic society (s 28). It has not been suggested (and I doubt that it could be suggested) that the Legal Profession Act, in so far as it makes the right to engage in legal practice dependent on the grant of a practising certificate and specifies criteria for that decision, is not such a law. A decision in accordance with that Act refusing to grant the plaintiff a practising certificate is therefore not, without more, a denial of any human right protected by the Human Rights Act. Similarly, for example, under s 12 of the Human Rights Act, the plaintiff has a right not to have his reputation “unlawfully attacked”; but publication of material damaging to his reputation would not be relevantly “unlawful” if it occurred in the course of performing the defendants’ functions under the Legal Profession Act.
At this stage it is appropriate to mention assertions made in the FASC and the plaintiff’s submissions that the defendants and their officers have exhibited bias against him because he is “a Black lawyer”, victimised him and rejected his application “regardless of its merit” (eg FASC paragraphs 94, 179, 181, 197). If a decision refusing to grant the plaintiff a practising certificate had been actuated by perceptions about his ethnicity or personal animus against him (or otherwise made without proper consideration of the merit of his application), the decision would almost certainly be beyond the power of the Council under the Legal Profession Act (on the basis of one or more of the traditional grounds of judicial review) and liable to be set aside on that basis. Further or alternatively, the plaintiff could obtain a correct decision on the merits from this Court, by appealing under s 81. There would be no need to resort to human rights jurisprudence to achieve those results. Possibly, additional relief might be granted under s 40C of the Human Rights Act in recognition of a breach of the right to equal treatment in s 8 of that Act.
However, the material to which I have been taken provides no support for any assertion that decisions made by the defendants have been influenced by the plaintiff’s ethnicity or cultural background or by any other form of bias against him. In this connection, the plaintiff asserted more than once that he had been denied a practising certificate despite there being no “unresolved complaints” against him, while certificates were issued to some other practitioners who had been found guilty of professional misconduct. This fact (if true) cannot assist the plaintiff in the absence of analysis of those other practitioners’ circumstances and the Council’s reasoning in relation to them, together with the matters taken into account by the Council in his own case. In each decision under s 44 of the Legal Profession Act, if the applicant was “eligible” to apply, the Council was required to take into account all of the “suitability matters” set out in s 11 of the Act. No individual factor required a certificate to be granted or refused.
Sixthly, the plaintiff apparently places some reliance on certain provisions of the Australian Human Rights Commission Act 1986 (Cth). These provisions are not relevant. They relate to processes of the Australian Human Rights Commission (AHRC), and proceedings in the Federal Court of Australia where the AHRC terminates those processes.
Seventhly, there are references in FASC to provisions of the Australian Consumer Law. I have noted above the difficulties which appear to stand in the way of any direct reliance on those provisions.
These seven points do not purport to be an exhaustive analysis of the plaintiff’s case. As I have noted above, the defendants did not put their case for summary dismissal on the basis that the plaintiff’s claims were doomed to fail. (However, nor did they concede (as the plaintiff appeared to suggest) that his claims are not doomed to fail.) The disorganised and confusing state of the FASC makes it impossible to conclude with certainty that there is not, lurking within it, a potentially viable claim. However, each of the arguments that I have been able to identify, as an asserted basis for the relief that the plaintiff seeks, turns out upon fairly brief analysis to face serious if not insurmountable problems. These considerations give me additional comfort in concluding that the proceeding should be summarily dismissed. They indicate that the possibility that I am thereby dismissing at the threshold a claim that might have real substance is small. Neither the defendants nor the Court should be subjected to the burden of responding to further versions of the plaintiff’s pleading for the sake of accommodating that small possibility.
Summary judgment for the plaintiff
As noted above, it would be incongruous and unjust to give summary judgment for the plaintiff in circumstances where he has not yet managed to plead all relevant facts in such a way that the defendants can be expected to respond (see, by analogy, Fenato v Chief Commissioner of State Revenue [2010] NSWCA 80; 78 NSWLR 20, [75], [84] (Gzell J, Beazley and Macfarlan JJA agreeing). That conclusion is reinforced by the fundamental problems that appear to stand in the way of each element of the plaintiff’s claims.
This conclusion is not avoided by the fact that the plaintiff’s application was filed first in time. The application must necessarily be assessed by looking at the strength of the case as it is currently articulated. If the claim lacks underlying merit, or if it is not articulated in a manner that the defendants can be expected to respond to, the plaintiff cannot succeed—let alone on a summary basis.
This is sufficient to dispose of the summary judgment application. However, in the light of the way the application was argued, it is appropriate to make these further points.
The procedures provided for in the Rules for summary judgment in a case commenced by originating claim (r 1146 (judgment for the plaintiff) and r 1147 (judgment for the defendant)) are “summary” in the sense that they provide powers to decide a case without proceeding to a trial in which all of the parties’ evidence is led and witnesses are cross-examined. Deciding a case without hearing all the evidence on disputed issues of fact is unusual in a common law system, and the circumstances in which a court will take that course are closely confined. Summary judgment is not a procedure whereby the trial of a proceeding can be brought on early and run on an abbreviated version of the evidence (see eg, Aspen Medical Pty Ltd v BA Capital Inc [2021] ACTSC 321, [69]). Rather, the moving party needs to persuade the Court that there are reasons why the case need not or should not go to trial (usually, that its own case is bound to succeed). Two points flow from this.
First, contrary to what appeared to be assumed by the plaintiff, his application for summary judgment was not assured of success when the defendants missed their opportunity to file affidavit evidence in response to it. Rule 1150(2) provides for a period within which “any affidavit on which the other party intends to rely” must be filed; it does not require such an affidavit. Further, because the hearing of the application is not the trial, substantive issues of fact arising on the pleadings are not taken to be conceded merely because the responding party does not go into evidence on the application.
Secondly, the summary judgment application was not effectively advanced by taking the Court to evidence going to substantive issues of fact which is liable to be supplemented, explained or rebutted by further evidence adduced in the trial. To persuade the Court on a summary basis that the defendants did not have “a good defence to the claim for relief on the merits” and that there were not sufficient facts disclosed “to entitle the defendant[s] to defend the claim for relief generally” (the language of r 1146(2)), the plaintiff needed to establish that his case was irresistible; ie, that there was “no real question to be tried”: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99. As indicated by my reasoning set out above, he fell well short of that objective. Indeed, the evidence tended to indicate the weakness rather than the strength of the plaintiff’s case. I am far from persuaded that any part of the case has a real prospect of succeeding.
Other relief sought by the defendants
The defendants also seek an order that would prevent the plaintiff from filing any further pleading in this or any other proceeding against them seeking any relief based on allegations involving dishonesty or bad faith, without the prior leave of the Court. The order is sought in the Court’s “inherent jurisdiction” and not pursuant to s 67A of the Supreme Court Act 1933 (ACT).
This prayer for relief was not addressed to any significant extent in the parties’ submissions. To the extent that the proposed order would cover the present case, it is unnecessary in the light of my conclusion that the proceeding should be dismissed. In so far as it relates to future proceedings, Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 appears to stand in the way of any “inherent” power to impose a leave requirement on the commencement of proceedings or the filing of pleadings (see at 314-315 (Barwick CJ and McTiernan J); also see Hunter v Leahy [1999] FCA 1075; 91 FCR 214). Because no application has been made under s 67A, I express no view as to whether circumstances exist which justify declaring the plaintiff to be a vexatious litigant under that provision.
Costs
The defendants sought the costs of their summary dismissal application, which has succeeded. The plaintiff’s summary judgment application has failed. Prima facie, the defendants are therefore entitled to their costs of both applications. A small discount is appropriate to reflect the omission, at first, to apply for leave under r 1148(2).
Because the orders to be made will dispose of the proceeding as a whole, favourably to the defendants, it also appears appropriate to make a more general costs order in their favour. The order that I make will need to preserve the effect of costs orders that have been made in relation to previous interlocutory applications, some of which have provided for less than full recovery by the defendants of their costs of those applications.
The orders I make will include an order reflecting these conclusions, but provide an opportunity for the parties to file written submissions contending for a different order.
Orders
The orders of the Court are as follows:
(1)The plaintiff’s application in proceeding filed on 25 January 2022 is dismissed.
(2)Pursuant to r 425(1)(b), (c) and (d) of the Court Procedures Rules 2006 (ACT) (the Rules), the Further Amended Statement of Claim filed on 23 March 2022 is struck out.
(3)Pursuant to r 1148(2) of the Rules, leave is granted to the defendants to apply for the summary dismissal of the proceeding;
(4)Pursuant to r 1147(2)(a) of the Rules, the proceeding is dismissed.
(5)If no party files written submissions seeking a different costs order by 17 November 2022, the plaintiff is to pay:
(i)the defendants’ costs of the Application in Proceeding filed on 25 January 2022;
(ii)90 percent of the defendants’ costs of the Application in Proceeding filed on 22 April 2022 and amended on 22 June 2022; and
(iii)the defendants’ costs of all other aspects of the proceeding, save for those which are already the subject of the costs orders made by McWilliam AsJ on 5 August 2021, by Crowe J on 10 December 2021 and by Mossop J on 7 March 2022.
(6)If any party files written submissions as permitted by order (5), any opposing party is to file any submissions in response by 24 November 2022.
| I certify that the preceding eighty-six [86] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kennett Associate: Date: |
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