Ezekiel-Hart v Reis
[2019] ACTCA 31
•14 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Ezekiel-Hart v Reis |
Citation: | [2019] ACTCA 31 |
Hearing Date: | 17 October 2019 |
DecisionDate: | 14 November 2019 |
Before: | Mossop J |
Decision: | See [63] and [64] |
Catchwords: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – Where summary judgment entered against the applicant – whether errors in the decision of the primary judge identified – there were not – whether arguable grounds of appeal – there are not APPEAL – APPLICATION FOR EXTENSION OF TIME TO APPEAL – Where primary judge not satisfied that it was not reasonable for the plaintiff to have commenced defamation proceedings within time period – whether primary judge erred in refusing an application for an extension of time to lodge an appeal – he did not |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT), s 86 Civil Law (Wrongs) Act 2002 (ACT), ss 135, 139A(3)(h) Supreme Court Act 1933 (ACT), s 37E(4) |
Cases Cited: | Arrow International Australia Ltd v Group Konstrukt Pty Ltd[2012] ACTCA 37; 7 ACTLR 48 Barlow v Law Society of the ACT [2018] ACTCA 16 Legal Practitioner v Council of the Law Society of the ACT [2017] ACTCA 6 |
Parties: | Emmanuel Ezekiel-Hart (Applicant) Robert Reis (First Respondent) Council of the Law Society of the Australian Capital Territory (Second Respondent) |
Representation: | Counsel E Ezekiel-Hart (In Person) T Power (First and Second Respondent) |
| Solicitors Self-represented (Applicant) McInnes Wilson Lawyers (First and Second Respondent) | |
File Numbers: | ACTCA 33 of 2019 ACTCA 34 of 2019 |
Decisions under appeal: | AC 33 of 2019 Court: Supreme Court of the ACT Before: Crowe AJ Date of Decision: 25 July 2019 Case Title: Ezekiel-Hart v Reis (Leave to Appeal) Citation: [2019] ACTSC 193 Court File Number: SCA 75 of 2017 AC 34 of 2019 Court: Supreme Court of the ACT Before: Crowe AJ Date of Decision: 25 July 2019 Case Title: Ezekiel-Hart v Reis (No 2) Citation: [2019] ACTSC 192 Court File Number: SC 433 of 2017 |
MOSSOP J:
Introduction
There are two applications before the Court. The first (AC 33 of 2019) is an Application for Leave to Appeal against a decision of Crowe AJ on 25 July 2019 refusing leave to appeal from a decision of the ACT Civil and Administrative Tribunal (ACAT): see Ezekiel-Hart v Reis (Leave to Appeal) [2019] ACTSC 193 (Leave to Appeal Decision). That application also seeks an extension of time so as to permit it to be made. The second application (AC 34 of 2019) is an Application for Leave to Appeal against a decision giving summary judgment in favour of the respondents on a claim for defamation and breach of the Human Rights Act 2004 (ACT) (HR Act): see Ezekiel-Hart v Reis (No 2) [2019] ACTSC 192 (Summary Judgment Decision). The application also includes an application for an extension of time in which it can be made.
Both decisions appealed from were made on 25 July 2019. Both decisions were interlocutory and for that reason require leave to appeal: Supreme Court Act 1933 (ACT) s 37E(4). The applications for leave to appeal were filed on 9 August 2019. This was the 15th day after the date of the decisions. Rule 5312 of the Court Procedures Rules 2006 (ACT) requires that such applications be filed not later than seven days after the date of the interlocutory order was made. It is for that reason that both applications include an application for an extension of time.
In both cases an Amended Application for Leave to Appeal was filed challenging a costs decision made on 6 September 2019: Ezekiel-Hart v Reis (No 3) [2019] ACTSC 250 (Costs Decision). This was filed on 18 September 2019. An extension of time was also necessary in relation to this application.
In both cases the Draft Notice of Appeal was the same. An Amended Draft Notice of Appeal was also filed in each case. Confusingly, some of the amendments to the Amended Draft Notice of Appeal which appeared to be intended to be additions were struck through as if they were deletions from the document. The document did not identify any distinct grounds of appeal in relation to the Costs Decision.
Application for leave to appeal from ACAT
Decision of the primary judge
The proceedings before the primary judge were an Application for Leave to Appeal from a decision of the ACAT. Leave was required by s 86 of the ACT Civil and Administrative Tribunal Act 2008 (ACT).
The proceedings were first determined by a Senior Member of the ACAT: Ezekiel-Hart v Reis & Anor [2017] ACAT 3. The applicant appealed against that decision and his appeal was dismissed by an Acting Presidential Member of the ACAT: Ezekiel-Hart v Reis & Anor (Appeal) [2017] ACAT 76.
The primary judge dismissed the application for leave to appeal from the decision of ACAT: see Leave to Appeal Decision.
The primary judge identified the approach to be taken when determining an application for leave to appeal under s 86. His Honour next turned to the material filed in support of the application. He said that the affidavit should have identified the nature of the appeal and the questions of fact or law relied upon. He said (at [6]), in relation to the affidavit that had been filed: “Unfortunately the 196 page affidavit does not contain a coherent statement of either the nature of the appeal or the questions involved. Rather, it contains extracts of evidence, submissions (including references to and extracts from various authorities) and matters of argument. Consequently, I found the document difficult to comprehend.” His Honour identified (at [8]) that the Draft Notice of Appeal was not of assistance, containing “nearly 80 grounds of appeal which again blur the distinction between argument and the identification of errors of fact or law”. Finally, he identified that the written and oral submissions did nothing to clarify the basis of the proposed appeal. Doing the best that he could he identified the applicant’s complaint in question form (at [10]) as: “Did the Appeal Tribunal err in concluding that there was no basis to set aside the conclusions of the Tribunal at first instance that neither the exclusion of the applicant from the second respondent’s premises nor the refusal of his practising certificate application was the result of discrimination on the grounds of race or political conviction?”
The primary judge then turned to consider the findings made by the Tribunal at first instance and on appeal. He identified that the claims of discrimination related to two events:
(a)the events on 23 February 2016 when the applicant was directed to leave a part of the Law Society’s premises and thereafter excluded from that part of the premises (access to premises claim); and
(b)the handling of his application for a practising certificate and the refusal of that application (practising certificate claim).
The primary judge then referred to the manner in which the Tribunal at first instance had addressed each of these claims.
In relation to the events on 23 February 2016, the primary judge identified that the Senior Member, having seen and heard relevant witnesses, found that there was no unfavourable treatment of him in the events on that day. Further, the Tribunal found that even if there was such treatment, it was not motivated by the applicant’s race or political conviction. This involved acceptance of the evidence of Robert Reis as to his reason for requesting that the applicant not be permitted into the secure area of the premises.
In relation to the practising certificate claim, the Senior Member accepted that the refusal amounted to unfavourable treatment. The Tribunal found however that there were coherent reasons for the Law Society’s conduct which had nothing to do with discrimination in the relevant sense. As a consequence, the Tribunal found that the applicant’s claim should fail because of a complete absence of evidence that the refusal was motivated by the applicant’s race or political conviction.
The primary judge then referred to the decision of the Appeal Tribunal. The Notice of Appeal to the Appeal Tribunal was 65 pages long. The Acting Presidential Member who dealt with it recorded that it was “… difficult to discern the specific bases of the appeal”. A subsequent document which the applicant was directed to file setting out the reasons for the appeal by reference to paragraphs of the decision appealed against and identifying alleged errors of fact or law was 82 pages long and suffered from the same defects of the original Notice of Appeal. He was subsequently ordered to file a further document which ended up being 29 pages long and as this was the shortest and most comprehensible of the documents filed, it was that document that the Appeal Tribunal relied upon.
The primary judge referred to the Appeal Tribunal’s discussion of the difficulties with the applicant’s appeal. He recorded (at [23]) that the Acting Presidential Member had identified that the Senior Member might have been in error in concluding that the exclusion was not unfavourable treatment but that did not assist the applicant because it provided no basis for overturning the decision that the directive was not based on the applicant’s race or political conviction.
The primary judge then referred to the practising certificate claim and noted that the Appeal Tribunal accepted that the applicant might have an argument that he was not afforded procedural fairness in the events leading up to the decision to refuse his application. However, the Appeal Tribunal concluded that the Tribunal found there was no evidence to support the contention that the failures to accord him procedural fairness were motivated by racial or political conviction discrimination and there was no convincing basis for overturning that view.
Finally, the primary judge referred to the decision of the Acting Presidential Member in relation to the claims made by the applicant that he had been victimised under s 68 of the Discrimination Act 1991 (ACT) (Discrimination Act) or the subject of unlawful vilification under s 67A of the Discrimination Act. In relation to both of these claims the Appeal Tribunal found that there was no ground for overturning those decisions.
The primary judge said that it was not necessary for the purposes of the leave application for the applicant to demonstrate actual error on the part of the Tribunal appealed from. Rather, he must be able to put a “real or significant argument that such an error exists so that this Court should have doubt as to the correctness of the Tribunal’s decision”. The primary judge concluded:
27. Unfortunately, so far as I can understand his submissions, the applicant seems to have repeated the various arguments which were unsuccessful at first instance, and again on appeal. The applicant has not demonstrated that any part of the Appeal Tribunal’s decision errs by reference to the facts as found by the Tribunal at first instance having regard to the evidence on which those facts were found. Nor has he demonstrated any error in legal reasoning by the Appeal Tribunal. Having read the evidence before the Tribunal at first instance, the decision of that Tribunal and the carefully reasoned decision of the Appeal Tribunal, I am not persuaded that there is sufficient doubt as to the correctness of the latter to justify the grant of leave.
Amended Draft Notice of Appeal
Amended Draft Notices of Appeal in identical terms have been filed in proceedings AC 33 of 2019 and AC 34 of 2019. The Amended Draft Notice of Appeal contains 35 grounds of appeal. Some of those grounds do not identify which of the two decisions of the primary judge they relate to. Those grounds are as follows:
1.The Judgment of Acting Justice Crowe made on 25 July 2019, was infected by error of mixed fact and law.
2.The Decision was plainly unjust.
3.Decision was plainly wrong and oppressive in that it achieved an unintended result of perpetual alienation of the Plaintiff from the ACT.
4.The Decision was “glaringly improbable”.
5.The Decision was “contrary to compelling inferences” in light of the whole circumstances before Acting Justice Crowe in this case.
6.The Appellant’s incontrovertible facts and uncontested testimony demonstrate that Acting Justice Crowe conclusions are erroneous in fact.
Having regard to the structure of the Amended Draft Notice of Appeal, these probably relate to the Summary Judgment Decision, although given that both decisions were delivered on 25 July it is not possible to be sure.
Ground 35 was also in general terms:
35. Manifest injustice and oppression will be done to the Appellant and damage to the system of justice will be done if the orders made on 25 July 2019 and 6 September 2019 are not set aside.
One of the grounds does specifically relate to the Leave to Appeal Decision the subject of AC 33 of 2019. That is Ground 34 which provides:
34.The Acting Justice Crowe finding at 27 (leave to Appeal) of his reasons that “The Applicant has not demonstrated that any part of the Appeal Tribunal’s decision errs by reference to the facts as found by the Tribunal at first instance having regard to the evidence on which those facts were found “ is improbable and unreasonable in light of all the evidence before him as listed below.
There is no list of evidence below within the Amended Draft Notice of Appeal. This ground appears to suffer from the same vice as identified by the primary judge, namely, that it seeks to repeat the various arguments which were unsuccessful at first instance and on appeal. It is important to remember that if leave is granted, the appeal is an appeal from a discretionary refusal of leave to appeal rather than an appeal directly against either the original or appeal decision of the ACAT. The applicant is required to identify errors in the decision of the primary judge rather than errors in the proceedings in the Tribunal.The principles in House v The King (1936) 55 CLR 499 at 505 are applicable to an appeal from a discretionary refusal of leave to appeal.This is not, of course, to say that errors in the court below dealing with the earlier decision cannot be the subject of complaint. However, the errors must be errors of the court below and it is not sufficient to simply repeat an attack on the decisions of the Tribunal: see Legal Practitioner v Council of the Law Society of the ACT [2017] ACTCA 6 at [18].
Consideration
The submissions made by the applicant were contained in a 187 page, 1012 paragraph affidavit, a further four pages of written submissions and oral submissions made at the hearing. It was difficult to understand from the written and oral submissions what the precise complaint made by the applicant about the manner in which the primary judge exercised his discretion to refuse leave was. Many of the submissions sought simply to attack the original decision of the Tribunal on the basis that, notwithstanding that its findings were based upon credibility they were “glaringly improbable” or “contrary to compelling inferences”. However, while referring to the statement in Fox v Percy [2003] HCA 22; 214 CLR 118 at [29] that appellate review is permitted in such circumstances, the applicant’s submissions fail to demonstrate an arguable basis for such a submission and hence fail to demonstrate an arguable basis for contending that the primary judge erred in the exercise of his discretion. Rather, the submissions deferred any clear articulation of an arguable ground of appeal, anticipating that it would emerge after leave was granted and all of the evidence and the tribunal proceedings could be examined. Plainly enough that is not an appropriate basis upon which to grant leave to appeal.
Fundamentally, leave was refused by the primary judge because the applicant had failed to demonstrate an arguable claim that there was an error of fact or law in the reasons for decision given by the Appeal Tribunal. On the Application for Leave to Appeal from the decision of the primary judge, the applicant has failed to demonstrate any arguable basis for a contention that his Honour erred in the exercise of his discretion by acting upon some wrong principle, by making an error of fact, by taking into account an irrelevant consideration or by failing to take into account a relevant consideration. As a consequence, no arguable basis for an appeal has been demonstrated and the application for leave should therefore be dismissed.
Application for leave to appeal from summary judgment
Proceedings below
The proceedings before the primary judge the subject of the Application for Leave to appeal in AC 34 of 2019 involved three defendants. The first defendant was Mr Reis (the first respondent), an employee of the second defendant, the Council of the Law Society (the second respondent). The third defendant was the Australian Capital Territory (ACT). The applicant’s claim against the first and second respondents was first in defamation. He claimed he was defamed by the publication to members of the Council of the Law Society of a memorandum relating to his application for a practising certificate. He alleged that the publication was defamatory.
The applicant also relied upon alleged breaches of the HR Act. The conduct alleged to give rise to breaches of that Act were: denying the plaintiff access to the premises occupied by the Law Society; Mr Reis providing the memorandum to the Council in March 2016; and the decision of the Council on 21 March 2016 to refuse the plaintiff’s application for a practising certificate.
The first and second respondents pleaded defences which included defences of absolute privilege, qualified privilege, substantial truth and honest opinion. They pleaded reliance upon statutory immunities under the Legal Profession Act 2006 (ACT) (LP Act). They also placed reliance upon the time bars under the Limitation Act 1985 (ACT) (Limitation Act) and the HR Act.
The applicant claimed against the ACT that it owed him a duty of care to exercise its power under s 466 of the LP Act to request a report. He alleged that the failure to exercise that power involved a breach of a duty of care owed to him which caused loss and damage. He also alleged that the failure to seek a report amounted to a breach of the HR Act because he was discriminated against contrary to s 8 of the Act.
The memorandum that was published to the members of the Council of the Law Society attached a draft application for disciplinary action against the applicant. The Council had previously resolved in August 2015 to proceed with that application, however the application was not filed because the Council was unaware of the plaintiff’s whereabouts. The application had been drafted by senior counsel and addressed a number of complaints against the applicant. In particular, the document set out the terms of correspondence sent to members of the Council of the Law Society and characterised that correspondence as threatening the President and members of the Council with violent retribution if they cancelled or suspended his practising certificate. It also set out the terms of an email sent to a solicitor acting for the Council and characterised that email as threatening a fellow practitioner with “lethal violence”.
Decision of the primary judge
His Honour described the claim that was made against the first and second respondents as well as the claim made against the ACT. He described the defences that were pleaded. He set out the manner in which the hearing proceeded, the evidence given and the submissions made. He made findings of fact in relation to the provision of the memorandum by the first respondent to the Council of the second respondent as well as in relation to the events on the 23 February 2016.
The primary judge found (at [75]) that the defamation proceedings were prima facie time barred by s 21B of the Limitation Act. He was not satisfied that the threshold for granting an extension of time namely “it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of publication” was made out in the circumstances and hence there was no power to extend time.
Similarly, in relation to the human rights claims, whilst his Honour recognised that the capacity to extend time was a broad one, he concluded (at [83]) that the claims under the HR Act against each of the three defendants were hopeless and must fail. As a consequence he refused the plaintiff’s application to extend time.
His Honour doubted that absolute privilege would apply to the memorandum relating to the renewal of the practising certificate. That memorandum attached a draft disciplinary application which had been prepared in relation to allegations of misconduct directed against the applicant. His Honour (at [86]) had little doubt that the publication of the application for the purpose of deciding whether or not to commence those disciplinary proceedings would have been covered by absolute privilege. However, the purpose for which it was published was instead deciding whether or not to issue a practising certificate to the applicant. His Honour considered that it was not necessary to reach a final view on the point because he was satisfied that the defence of qualified privilege was made out both under statute and common law. His Honour said (at [89]) that there could be no doubt that given the statutory context, the Council of the Law Society had a proper interest in receiving information about any unresolved complaint and that Mr Reis published material in order to give it the information required to make the decision. His Honour considered that the only real issue was that arising under s 139A(3)(h) of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act), namely whether the matter published contained the substance of the person’s side of the story and if not whether a reasonable attempt was made by the defendant to obtain and publish a response from the person. His Honour considered that it was reasonable for Mr Reis as an employee of the Law Society to provide the draft application to Council without seeking a response from the plaintiff. That was largely because it was a matter for the Council whether to seek input from the plaintiff on the allegations in the draft application. The evidence did not permit his Honour to draw any inference as to whether or not the failure to seek a response in such circumstances was consistent or inconsistent with the general practice of the Council. He therefore found (at [92]) that both statutory qualified privilege attached to the publication and if it was necessary to determine it, so too did common law qualified privilege.
His Honour also found that the defence of truth under s 135 of the CLW Act was made out. He did that through a comparison of the correspondence sent by the applicant with the characterisation of that correspondence in the memorandum. As a consequence, he found (at [95]) that the defamatory imputation of the publication was true, namely that the plaintiff was an angry man prone to threaten violence against those who opposed him in order to get his own way.
His Honour then turned to consider immunity under the LP Act. His Honour found (at [98]) that the immunity granted by s 468 did not apply because the purpose of the publication was not for the purposes of Ch 4 of the LP Act. However s 587A provided a more broadly applicable protection. That provided protection from civil liability for anything done honestly and without recklessness in the exercise of a function under the Act or in the reasonable belief that it was something done in the exercise of a function under the Act. His Honour found (at [100]) that “there can be no real doubt” that the onus of establishing that the matter complained of was published honestly and without recklessness was discharged. His Honour set out his reasons for that conclusion. He also found that Mr Reis was carrying out a function under the Act, namely processing the plaintiff’s application for a grant of a local practising certificate. As a consequence he found (at [102]) that s 587A was engaged and that neither the first nor second defendant could be held civilly liable for defamation contained in the draft application for disciplinary action.
His Honour then dealt with the HR Act claim against Mr Reis and the Law Society. The applicant had relied upon ss 8, 10, 12 and 17. Relevantly, s 10 prohibits treatment or punishment in a cruel, inhuman or degrading way and s 12 contains a protection from having one’s reputation unlawfully attacked. His Honour said (at [104]) that in light of his conclusions, there was no basis for claims in relation to those provisions. Section 17 provided that “every citizen has the right, and is to have the opportunity, to … have access, on general terms of equality, for appointment to the public service and public office”. His Honour said that he did not understand the plaintiff’s reliance upon that provision because nothing that the first or second defendant did impeded the applicant’s access to public service or public office.
So far as s 8 was concerned, the relevant rights were:
(2) Everyone has the right to enjoy his or her human rights without distinction or discrimination of any kind.
(3) Everyone is equal before the law and is entitled to the equal protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground.
So far as subs (2) was concerned, his Honour concluded (at [105]) that it turned upon the demonstration of a breach of one of the substantive human rights described elsewhere in Pt 3 (or Pt 3A) of the HR Act. Because no such breach was demonstrated his Honour concluded that the subsection had no work to do. In relation to s 8(3) his Honour had found earlier in his reasons (at [61]) that “there is no reasonable basis in the evidence for inferring that the conduct of the first and second defendants was based upon the plaintiff’s race or his political convictions”. Further, he had also found that the exclusion of the plaintiff from the secure area of the Law Society “occurred because of the long and difficult relationship between the plaintiff and the first and second defendants, and not because of his race or political convictions.” As a consequence, his Honour found (at [107]) that reliance on s 8(3) took the applicant no further.
He then dealt (at [108]-[111]) with the claim in negligence against the third defendant. His Honour concluded that there was no warrant for concluding that the Law Society was an instrumentality of the Territory or that the Territory had any control of the Law Society and the exercise of its statutory functions under Ch 2 of the LP Act or indeed under Ch 4 of that Act. His Honour said that reliance on s 466 was entirely misconceived as it only obliged the Law Society to provide information about disciplinary complaints and complaint handling at times to the Attorney-General and did not create a duty of care on the Attorney-General or the Territory to ensure that a specific complaint was handled in a particular way. His Honour said that other provisions in the LP Act relied upon by the applicant only demonstrated very specific areas where the Law Society was required to obtain the consent of the Attorney-General for particular action or report to the Attorney-General. None of that eroded the independence of the Law Society, particularly when carrying out its functions in relation to practising certificates under Ch 2 of the LP Act. His Honour found it unnecessary to address a causation argument which was put on behalf of the Territory.
Finally, his Honour turned to the HR Act claim against the Territory. That claim depended upon the establishment of control by the Attorney-General over the way in which the Law Society carried out its functions. He rejected that (at [112]) on the basis of the absence of control and his factual findings that the treatment of the applicant did not involve discrimination.
His Honour recognised that the maintenance of a claim for summary judgment throughout a hearing “was a little unusual” ([113]). However, he said that “once the plaintiff’s claim against the first and second [respondents] was examined in light of the evidence it became abundantly clear that it was a truly hopeless claim”. As a consequence, had the application for summary judgment been heard and determined before the substantive hearing, the plaintiff’s claim would at the very least be found to have been time-barred and hence the entry of summary judgment would have been justified. His Honour therefore entered judgment against the plaintiff summarily. He indicated (at [115]) that if he was wrong in taking that course, he would have entered judgment in favour of the first and second respondents in the substantive hearing.
The third defendant had not sought summary judgment and his Honour indicated (at [116]) that he would enter judgment in its favour in the ordinary way.
Leave to appeal and extension of time
As pointed out above, the applicant required an extension of time as well as leave to appeal. While the first and second respondents did not oppose the grant of extension of time for an application for leave to appeal, they did oppose the grant of leave to appeal, contending that the grounds of appeal contained bald assertions or conclusions or are otherwise incomprehensible and as a result the applicant has failed to identify or articulate any reasonably arguable error in the primary judge’s decision.
Approach to application for leave to appeal
The principles to be applied in determining an application for leave to appeal have been summarised in Arrow International Australia Ltd v Group Konstrukt Pty Ltd[2012] ACTCA 37; 7 ACTLR 48 at [58]; Barlow v Law Society of the ACT [2018] ACTCA 16 at [12]-[13]. Of the matters referred to in those cases the following are of significance in this case:
(a)the party seeking leave bears the onus of satisfying the court of the necessary criteria to justify the grant of leave;
(b)decisions which, though interlocutory, determine substantive rights will more readily be the subject of the grant of leave;
(c)the court will ordinarily grant leave where the decision is wrong and prejudice will be suffered by the appellant;
(d)leave may also be granted where the decision is attended with sufficient doubt to warrant its reconsideration and, if it is wrong, significant consequences will be suffered by the applicants; and
(e)leave should not be granted where the appeal is futile or an abuse of process.
In the present case the persuasive burden of satisfying the court of the justification for a grant of leave is of some significance. It must be recognised that the grant of leave is a filter. The persuasive burden is upon the applicant for leave. The inadequate preparation or presentation of an application for leave does not compel the court to search unassisted for an arguable ground for a grant of leave. Nor does it compel the court to examine the case as if it was in fact an appeal. Clearly enough, care must be taken where the applicant for leave is unrepresented even though that fact alone does not change the nature of the exercise.
The claim is one which, in substance, finally determined the applicant’s rights. This is clearly a factor favouring the grant of leave to appeal if an arguable ground of appeal is disclosed. It does not, however, remove the requirement for leave or make it a mere formality. There remains an onus upon the applicant to satisfy the court that the decision is attended with sufficient doubt to warrant its reconsideration.
Proposed grounds of appeal
As pointed out above, the Amended Draft Notice of Appeal filed for the purposes of the present application was in relevantly identical terms to the Amended Draft Notice of Appeal filed in AC 33 of 2019. Grounds of appeal 8-33 challenge numerous aspects of the primary judge’s decision. They are reproduced below with only minor corrections to spelling or grammar. The striking through reflects the form of the filed document. Ground 23 is not included as it appears to relate only to the ACT which is not involved in this application.
8. The Acting Justice misapprehended the facts and section 40C(3) of the Human Rights Act, and proceeded with that misapprehension to err in the application of the law and the fact (para 81-83).
9. His Honour erred in the finding of facts in face of incontrovertible evidence and compelling inference that the Defendants acted dishonestly and with recklessness and malice to afford them the protection of section 587A of the Legal Profession Act (para 99-102) and section 135 of the CL(W)A. (para 84-90).
10.His Honour’s failure to extend time under section 21B(2) was unreasonable and contrary the intention of that section in light of the whole circumstances and evidence before the court. It raised 3 questions namely:
a) whether without the making of the plaintiff, where the plaintiff was prevented from knowledge by the defendants and the plaintiff was in legal battle with the same Defendants for right to feed decently by working, whether in Australia such circumstances is precluded among “relatively unusual” circumstances where it will not be reasonable for a plaintiff to commence an action to vindicate his legal rights in accordance with the time limits provided by law? (para 77-80)
b) Whether the choice between to eat or feed family and the choice to vindicate name after the defendants had taken a greater part of the time to hide the defamation material from the plaintiff was a usual circumstance in fair-go Country of Australia?
c) Whether it was reasonable for the Defendants to benefit from their wrong doing of denying the Plaintiff circulation of the defaming material and refused providing the plaintiff with procedural fairness natural justice?
11.His Honour misapprehended the facts and refused to deal with the matters which arose beyond 21 March 2016, despite the fact that those matters were pleaded in the Statement of Claim and his Honour’s attention was drawn to them.
12. The Acting Justice finding “of an absence of any discrimination” (para 107 and 112) and description of the facts as “proposition that the second defendant had treated some white solicitors who had been the subject of disciplinary proceedings far less harshly than he had been treated” (para 41) is erroneous and gross misrepresentation of admitted facts including facts shown to his Honour and plainly stated that the first and second defendants admitted that White lawyers found guilty of professional misconduct were issued with certificate to work, and despite recommendation of Counsel in 2013 which was also shown to his honour that I should be issued with certificate on condition the first and second defendants refused till date to issue the certificate, and refused any reconsiderations which was also shown to his Honour.
13.His Honour misapprehended the facts and application of sections 10, 12, and 17 of the Human Rights Act.
14. The Acting Justice misapprehended the facts and section 8(2) of the Human Rights Act, and proceeded with that misapprehension to err in the application of the law. (para 105-107)
15.The Acting Justice descended into the arena and has his vision clouded by the dust of the conflict, and concentrated on the submissions of the Respondents that the matters could have been dealt with under different statutes and forum.
16. There is conflict over section 8 of the Human Rights Act findings between McWilliam AsJ and Acting Justice Crowe such that it warrant the Appeal Court to hear the whole matter of fact and law to resolve the conflict in the interest of justice and benefit of public jurisprudence.
17.The Acting Justice misapprehended the distinction of the requisite test between Claims brought under the Discrimination Act and the Human Rights Act, to the extent that his Honour require race, or other attributes to find distinction treatment under the Human Rights Act. (para 61, 71)
18. The Acting Justice’s finding of no evidence of malice was contrary to compelling evidence of facts and inference before the Court, and not in consonance with the incontrovertible evidence and uncontested testimony of the Appellant before the Court. (paras 87, 60)
19. His Honour misapprehended the distinction between parliamentary proceeding and Administration decision or action and proceeded with that misapprehension to exclude document against the Third Defendant which was produced in course of administrative decision of the Attorney-General.
His Honour misapprehended the reliance of section 466 and erred in his application of the case of Sullivan v Moody [2001] HCA 59; 207 CLR 562 at pp 581-3 and Robert v Bass [2002] HCA 57; 212 CLR 1 and failed to consider the case of Perre v Apand Pty Ltd (1999) 198 CLR 180.
20.His Honour erred in failing to find that in light of established fact, the second Defendant was instrumentality of the third defendant despite reliance of separate entity of the Second defendant, that the third Defendant still has control over the second defendant over and above other societies.
21. The Acting Judge failure to find discrimination in the face of overwhelming evidence and compelling inferences was plainly unjust and erroneous, the failure to find anything wrong against the defendants was plainly unreasonable in circumstance where the First Defendant admitted that it was reasonable to issue White lawyers found guilty of professional misconduct/unsatisfactory professional conduct with certificate taking their personal and professional circumstances into consideration but not the Appellant that no court of law has found guilty of any offence.
22. The decision is plainly oppressive and institutionalize oppression and his honour was bias to the extent that the Acting Judge find that the Plaintiff’s claim “became abundantly clear that it was truly a hopeless claim” in that no reasonable person on the street will agree that a claim brought against the defendants for distinction treatment which are facts and not conjecture was “truly hopeless claim” (para 113), another justice of the Supreme Court AsJ McWilliam find that the Claim was not a “truly hopeless claim”. Also the references in the footnotes to evidence refer to that of the defendants despite that the Plaintiff have before the Court incontrovertible affidavit evidence.
…
24.The Acting Judge Misapprehended the term “Lethal Violence” and the relevant imputations and proceeded with that misapprehension to find that “I do not believe that, any of the other imputations alleged arise out of the matter complained of” (para 72)
25. The Acting Justice misapprehended the facts saying that “the plaintiff’s action for defamation arose between 17 and 21 March 2016” it included as stated in the Statement of Claim continued publication and the use to refuse reconsideration on 6 September 2017 and continued, no apology no withdrawal from the internet. (para 75)
26. Where the Acting Judge had accepted that the memorandum in issue has attachment of Mr N Beaumont SC, and that it was reasonable to be attached by Mr Reis, why was it unreasonable and no malice for Mr Reis to refuse to attach at the same time another Memorandum of the said Mr N Beaumont written at the time of currency of the same circumstances where he recommended that the Plaintiff be issued with restricted certificate; without malice why was that evidence and evidence that Mr Reis remove from the circulation and the internet the Plaintiff’s reply, not attached to the memorandum? The finding is improbable.
27. The Decision is improbable given that Councils of 2011, 2012, 2013, 2014, and 2016 dismissed the complaint and Council of 2015 did nothing why was there no malice given that Mr Reis was involved with each of all those Councils and admitted threatening the Plaintiff’s certificate unlawfully in 2011, and since, commencing 2008 till 2016, including reconsideration of 2017, his recommendation was refusal of the Plaintiff certificate despite no court of law has found the plaintiff guilty of any offence, in the circumstance that Mr Reis and the Second Defendant admitted that white lawyers found guilty of professional misconduct the defendants issued them with certificate to work taking their personal and professional circumstances into consideration.
28. The Decision raised various questions of facts and law, in the circumstance where the memorandum with “lethal violence” was not the original complaint of Mr King which was known to Council and the Plaintiff was the presentation of the memorandum with “lethal violence” by Mr Reis with his recommendation to refuse the plaintiff certificate without any condition, whether it was honest and without recklessness as required under LPA Section 587A and “entirely appropriate” in light of the whole circumstances? (50-55).
29. In circumstance where Mr Reis using the second defendant as vehicle to reach and take the plaintiff’s certificate extra-judicial and unlawfully, and admitted correspondence to that effect, was the Plaintiff entitled to warn him off using any strong words with advice to “believe in the Court and civility and abhor violence against anyone” and that “The court is the avenue for a wise person except where the Court turned instrument of oppression” (para 56 Decision)
30. Was unlawful threat to the Plaintiff’s certificate to stop him feeding his children with effect that the children may enter harms way due to hardship/poverty, whether it was violence against the Plaintiff?
31.
The Acting Justicefailed to distinguish or misapprehend the difference between publishing a memorandum by email and or on website which wereaccessed by people and at the meeting where Mr Reis attended to justify his memorandum and its content by speaking at the meeting.32. The Decision is unreasonable in the circumstance that The Acting Judge accepted knowledge and believe from Mr Reis who is known to lack adequate knowledge of the law that he administer (para 67), mislead a Court, and refused to attend Court for cross examination to ascertain the truth of his affidavit, (paras 57-59, 62-65) but His Honour refuse to accept incontrovertible Affidavit evidence which the first and second defendants had opportunity to cross-examine the Plaintiff’s assertion of truth, belief and knowledge however failed or refused to test or dispute the affidavit evidence about its truth, belief and knowledge. (para 60)
33.
The Acting Justiceerred by failure to determine whether “the plaintiff’s claim would have been found to have been time barred” was defence on the merit under r 1147 before entering judgment for the first and second defendants under r 1147 after 4 days hearing,and whether the defendants were estopped in making interlocutory applications. And whether the removal of various parts of the pleadings including all matters after March 2016 serves the interest of justice and requirements of rule 501 and 502.…
(Emphasis and strikethroughs in original.)
Ground 35 which is set out above may also relate to the Summary Judgment Decision.
The applicant relied upon an affidavit of four pages, written submissions of four pages as well as oral submissions. The affidavit addresses his failure to file his Application for Leave to Appeal within time as well as including what are, in effect, submissions going to the merits of the application. The submissions in the affidavit did not clearly identify errors alleged in the judgment or demonstrate the arguability of the grounds of appeal. For example, paragraphs 12 and 13 of the affidavit provided:
12.The decision neglected incontrovertible evidence, and was contrary to compelling inferences, glaringly improbable in light of the whole facts and circumstances and was plainly unjust and plainly wrong with lack of understanding of the true interpretation of Applicable laws, such as section 8, 40B and 40C HRA and 21B of the Wrong Act.
13. The facts and circumstances can be shown that there was most compelling material available on the pleadings some of which were wrongly excluded that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the facts pleaded in the decision reached.
The written submissions which addressed both applications address, in relation to the proceedings the subject of this application, a number of issues of fact, procedure and law. None of these are articulated in a way that would satisfy me that there is an arguable contention of fact or law in the proposed grounds of appeal which might have altered the outcome of his Honour’s decision.
Conclusions on whether arguable grounds of appeal
Because of the number of grounds of appeal and the manner in which the applicant put his submissions, it is most appropriate to assess the merits of the Application for Leave by reference to the merits of a challenge to the basis upon which the primary judge found that summary judgment was appropriate, or alternatively, that he would have given judgment for the defendants.
Limitations under CLW Act and HR Act: His Honour found that the cause of action in defamation arose between 17 and 21 March 2016. That is the period immediately prior to the meeting of the Law Society Council planned for 21 March 2016. The grounds of appeal assert that identifying these dates was an error because the defamatory publication continued until a later date. No separate publication has been identified. The publication complained of undoubtedly occurred within the period identified by the primary judge and that is the date from which s 21B(1) of the Limitation Act operates. The submissions of the applicant did not satisfy me that this approach involves an arguable error.
The failure to extend time was also challenged. Section 21B(2) is dependent upon the satisfaction of the court that it was not reasonable in the circumstances for the plaintiff to have commenced an action within the one year period. The applicant did not challenge the principle that his Honour applied. His Honour noted that the applicant did not claim that he was unaware of the limitation period. Having regard to the authorities to which his Honour referred, I am not satisfied that there is any arguable basis for challenging his Honour’s lack of satisfaction that it was “not reasonable” for the applicant to have commenced his defamation proceedings within the statutory time period.
His Honour’s rejection of the application for an order extending time in which to make a claim under the HR Act was dependent upon his Honour’s conclusion about the merits of those claims. As indicated below I am not satisfied that there is an arguable basis for challenging those conclusions.
Qualified privilege: His Honour also found that the defence of qualified privilege was made out. His Honour concluded that given the statutory context, the Council had a proper interest in receiving information about any unresolved complaint against the plaintiff. The grounds of the appeal and the submissions made by the applicant do not demonstrate an arguable basis for challenging this conclusion.
Defence of truth: In relation to the defence of truth, his Honour concluded that the content of the letters of 1 December 2012 and the email of 4 June 2013 were sufficient to establish the truth of the defamatory sting of the imputations that his Honour found arose from the publication to Council. The grounds of appeal and the submissions of the applicant do not satisfy me that there is an arguable basis for challenging that conclusion.
Statutory immunity: The availability of protection from liability under s 587A of the LP Act was dependent upon the first and second defendants establishing that the matter complained of was published “honestly and without recklessness”. The finding made by his Honour was that this had been established. He gave six reasons for that conclusion. The grounds of appeal and submissions do not satisfy me that there is an arguable basis for contending that this conclusion was incorrect.
HR Act: The claim under the HR Act was dependent upon success in establishing defamation or discrimination. The claim in defamation was not made out. So far as discrimination was concerned, his Honour had concluded at [61] and [65] of his reasons that there was “no reasonable basis in the evidence for inferring that the conduct of the first and second defendants was based upon the plaintiff’s race or his political convictions”. Similarly, the applicant’s exclusion from the premises of the second defendant was found to be “because of the long and difficult relationship between the plaintiff and the first and second defendants, and not because of his race or political convictions”: see [55]. The applicant has not demonstrated an arguable case that these conclusions were incorrect. His submissions made reference to the treatment of a “white” lawyer who, apparently, in unrelated circumstances, was not refused a practising certificate but allowed to continue practice subject to conditions. The existence of different treatment of persons of different skin colour of itself does not compel an inference that the difference in treatment was caused by the difference in skin colour. The references to the case of the “white” lawyer does not indicate that there is an arguable basis for an appeal against the conclusion reached by his Honour that there was no proper basis for an inference that the conduct of the first and second respondent's was based upon the applicant’s race or political convictions.
In order for there to be an arguable appeal it would be necessary to show, in relation to the defamation component of the proceedings that the plaintiff had an arguable ground of appeal in relation to limitation periods, qualified privilege, truth and statutory immunity. That is because each of these issues alone would have been fatal to his claim. As indicated above, I am not satisfied that there is an arguable ground of appeal in relation to any of these issues, let alone all of them.
Granting of summary judgment
As his Honour recognised, granting summary judgment after having heard, in substance, the whole of the evidence in the case was an unusual course to have adopted. Adopting this course was not directly challenged in any of the grounds of appeal. It was not contended that it was simply not open to the primary judge to have proceeded in this way in the circumstances. The transcript of the proceedings was not put before the court on the Application for Leave to Appeal. It is therefore not possible to determine precisely how the court dealt with the relationship between the outstanding application for summary judgment and the final hearing of the claim and what position was taken by the parties in relation to those issues. In those circumstances it is not possible to conclude that there is an arguable case that proceeding in the manner that his Honour did involved an error. Even if there had arguably been an error in proceeding in the manner that his Honour did, having regard to the absence of an arguable grounds of appeal challenging the substance of his Honour’s alternative conclusion that the proceedings should be dismissed, it would not be appropriate to grant leave to appeal.
Conclusion
Therefore it is a case where, notwithstanding that the threshold for a grant of leave may be lower because of the effect on substantive rights, the applicant has not demonstrated that it is an appropriate case in which to grant leave. It is therefore appropriate that the applicant be granted an extension of time in which to apply for leave to appeal, but that the Application for Leave to Appeal be dismissed. Costs should follow the event.
Costs Decision
Assuming that it was the intention of the applicant to challenge the Costs Decision made by the primary judge on 6 September 2019, the fact that the grounds of appeal in the Amended Draft Notice of Appeal do not specifically refer to the Costs Decision indicates that the application was made simply in order to allow any decision on costs to be varied if that was appropriate in light of the outcome of the appeal. However, because it is not appropriate to grant leave to appeal in relation to either of the substantive applications, it is not appropriate to grant leave to appeal in relation to the Costs Decision.
Orders
In proceedings AC 33 of 2019, the orders of the Court are:
1. The time in which an Application for Leave to Appeal may be filed is extended to 18 September 2019.
2. The Application for Leave to Appeal is dismissed with costs.
In proceedings AC 34 of 2019, the orders of the Court are:
1. The time in which an Application for Leave to Appeal may be filed is extended to 18 September 2019.
2. The Application for Leave to Appeal is dismissed with costs.
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 14 November 2019 |
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