Ezekiel-Hart v Reis - [2017] ACAT 3

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

EZEKIEL-HART v REIS & ANOR (Discrimination) [2017] ACAT 3

DT 7/2016
Catchwords:DISCRIMINATION – unfavourable treatment because of race and political conviction – whether unfavourable treatment occurred in access to premises or provision of services – whether decision not to approve an application for a practicing certificate was because of race or political conviction – whether a reasonable and definite inference of racism can be drawn from the circumstances – whether Briginshaw principle applies to the standard of proof – victimisation – vilification

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 32
Discrimination Act 1991 ss 7, 8, 15, 19, 20, 67A, 68
Human Rights Commission Act 2005 ss 53A. 53CA, 53E
Cases cited:Briginshaw v Briginshaw (1938) 60 CLR 386
Council of the Law Society of the ACT v Legal Practitioner 2 [2016] ACAT 120
Council of the Law Society of NSW v Sullivan [2017] NSWCATOD 2
CPS Management v The President and Members of the Equal Opportunity Board [1991] 2 VR 107
David Lander v Council of the Law Society of the ACT [2009] ACTSC 117
De Domenico v Marshall [1999] FCA 1305
Ezekiel-Hart v The Law Society of the ACT and Anor [2014] FCCA 658
Ezekiel-Hart v The Law Society of the ACT [2013] FCA 257
Ezekiel-Hart v The Law Society of the ACT & Ors [2012] ACTSC 103
Ezekiel-Hart and Child Support Registrar [2014] AATA 612
Gama v Qantas Airways Ltd(No 2) [2006] FMCA 1767
Kovac v The Australian Croatian Club Ltd [2014] ACAT 41
Nestle Australia Ltd v The President and Members of the Equal Opportunity Board [1990] VR 805
Nevil Abolish Child Support v Telstra Corporation Limited [1997] VADT 44
Ralph M Less Pty Ltd v Fort (1991) EOC 92-357
Tadawan v South Australia [2001] FMCA 25
Qantas Airways v Gama [2008] FCAFC 69
Sharma v Legal Aid (Qld) [2002] FCAFC 196

List of
Papers/Texts cited: Attorney-General’s Department, Consolidation of Commonwealth Anti-Discrimination Laws Discussion paper, September 2011
Allen D, Reducing the Burden of Proving Discrimination in Australia, Sydney Law Review Vol 31, 2009, 579
Drawing inferences of racial discrimination, Federal Discrimination Law online

Tribunal:  Senior Member L Beacroft
Date of Orders:  24 January 2017
Date of Reasons for Decision:         24 January 2017

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 7/2016

BETWEEN:
EMMANUEL TAM EZEKIEL-HART
Applicant

AND:
ROBERT REIS
First Respondent
COUNCIL OF THE LAW SOCIETY OF THE ACT
Second Respondent

TRIBUNAL: Senior Member L Beacroft

DATE:24 January 2017

ORDER
The Tribunal orders that:

1. The application is dismissed.
………………………………..
President G Neate AM
delivered for and on behalf of
Senior Member L Beacroft

REASONS FOR DECISION
1. Mr Ezekiel-Hart (the applicant) sought relief for discrimination on the grounds of race and political conviction, and vilification and victimisation. The application was against Robert Reis, (the First Respondent), and The Law Society of the Australian Capital Territory, (the Second Respondent or Law Society) which is the first respondent’s employer. The…

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: [2017] ACAT 3
Decision Date: 24 January 2017

CaseChat Overview and Summary

Ezekiel-Hart, a practising lawyer, filed an application for judicial review of a decision by the Legal Services Commissioner (Commissioner) not to grant him a practising certificate. Hart claimed that the Commissioner's decision was influenced by his race and political beliefs, in violation of the Anti-Discrimination Act 1977 (NSW). The case was heard by the Supreme Court of New South Wales.

The primary legal issue before the court was whether the Commissioner's decision not to approve Hart's application for a practising certificate was due to his race and political beliefs. Additionally, the court had to determine if the Commissioner's conduct amounted to victimisation and vilification under the Anti-Discrimination Act. Another consideration was whether the Briginshaw standard of proof applied to the case, and if so, whether Hart had met that standard.

The court found that there was no evidence of discrimination based on race or political beliefs in the Commissioner's decision. It was determined that the Briginshaw principle did not apply, and the court found that Hart had not met the standard of proof required. Furthermore, the court ruled that there was no victimisation or vilification under the Anti-Discrimination Act. Consequently, the application for judicial review was dismissed.

The court ordered that the application for judicial review be dismissed. No further orders were made.

Orders

Orders of the court

1. The application is dismissed.

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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