Ezekiel-Hart v Reis - [2019] ACTCA 31

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) Court Procedures Rules 2006 (ACT), r 5312 Discrimination Act 1991 (ACT), ss 67A, 68 Human Rights Act 2004 (ACT), ss 8, 10, 12,17 Legal Profession Act 2006 (ACT), ss 466, 468, 587A Limitation Act 1985 (ACT), s 21B 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 Ezekiel-Hart v Reis & Anor [2017] ACAT 3 Ezekiel-Hart v Reis & Anor (Appeal) [2017] ACAT 76 Ezekiel-Hart v Reis (Leave to Appeal) [2019] ACTSC 193 Ezekiel-Hart v Reis (No 2) [2019] ACTSC 192 Ezekiel-Hart v Reis (No 3) [2019] ACTSC 250 Fox v Percy [2003] HCA 22; 214 CLR 118 House v The King (1936) 55 CLR 499 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] ACTCA 31
Decision Date: 14 November 2019

CaseChat Overview and Summary

Ezekiel-Hart (applicant) sought leave to appeal from a summary judgment entered against him in favour of Reis (respondent). The applicant also sought an extension of time to lodge his appeal.

The court was required to determine whether there were errors in the primary judge's decision to grant summary judgment, and whether there were arguable grounds of appeal. Additionally, the court had to consider whether the primary judge erred in refusing an application for an extension of time to lodge the appeal, specifically in relation to the primary judge's satisfaction regarding the reasonableness of commencing defamation proceedings within the prescribed time.

Mossop J found that there were no errors in the primary judge's decision regarding summary judgment and that there were no arguable grounds of appeal. Furthermore, his Honour determined that the primary judge did not err in refusing the application for an extension of time to lodge the appeal, as the primary judge had correctly assessed the reasonableness of the plaintiff's actions in commencing defamation proceedings.

The application for leave to appeal and the application for an extension of time to appeal were dismissed.

Orders

Orders of the court

See [63] and [64]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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