Ezekiel-Hart v Reis
[2018] ACTSC 264
•19 September 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ezekiel-Hart v Reis |
Citation: | [2018] ACTSC 264 |
Hearing Dates: | 13 February, 15 May 2018 |
DecisionDate: | 19 September 2018 |
Before: | McWilliam AsJ |
Decision: | See [119] – [120] |
Catchwords: | PRACTICE AND PROCEDURE – application for summary judgment – whether reasonable cause of action disclosed – application seeking a declaration that the plaintiff is a vexatious litigant – where arguable causes of action found and plaintiff demonstrates some insight into legal consequences – applications dismissed |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) s 118 |
Cases Cited: | Attorney-General v Chan [2011] NSWSC 1315 Pascoe v Liprini [2011] NSWSC 1484 |
Parties: | Emmanuel Tam Ezekiel-Hart (Plaintiff in SC 433 of 2017, Appellant in SCA 75 of 2017) Robert Anthony Reis (First Defendant in SC 433 of 2017, First Respondent in SCA 75 of 2017) Council of the Law Society of the Australian Capital Territory (Second Defendant in SC 433 of 2017, Second Respondent in SCA 75 of 2017) Australian Capital Territory (Third Defendant in SC 433 of 2017) Sarah Avery (Fourth Defendant SC 433 of 2017) |
Representation: | Counsel Self-Represented (Plaintiff in SC 433 of 2017, Appellant in SCA 75 of 2017) T Power (First, Second and Fourth Defendants in SC 433 of 2017, First and Second Respondents in SCA 75 of 2017) B Buckland (Third Defendant in SC 433 of 2017) |
| Solicitors Self-Represented (Plaintiff in SC 433 of 2017, Appellant in SCA 75 of 2017) Phelps Reid Foster Johnson Lawyers (First, Second and Fourth Defendants in SC 433 of 2017, First and Second Respondents in SCA 75 of 2017) ACT Government Solicitor (Third Defendant in SC 433 of 2017) | |
File Numbers: | SCA 75 of 2017; SC 433 of 2017 |
The appellant/plaintiff in each of these proceedings is a qualified lawyer, who is presently involved in two disputes with the Council of the Law Society of the ACT (Law Society), along with a number of associated individuals.
The first dispute, proceedings no. SCA 75 of 2017, filed 19 October 2017, is an application for leave to appeal (and if successful, an appeal) from a decision of the ACT Civil and Administrative Tribunal (Tribunal) made on 21 September 2017. The Tribunal dismissed an appeal of an earlier decision made by a Tribunal member refusing a complaint under the Discrimination Act 1991 (ACT). Before the Tribunal, the plaintiff had alleged that Mr Robert Reis, a solicitor, and the Law Society itself as his employer, had treated him unfavourably on the grounds of his race. I will refer to these proceedings as the ‘appeal proceedings’.
The second dispute, proceedings no. SC 443 of 2017, was commenced by Originating Claim and Statement of Claim filed on 6 November 2017 (Claim). The catalyst for the Claim appears to have been a decision made by the Law Society on 21 March 2016, refusing to issue the plaintiff a practising certificate.
The Claim makes a number of allegations against two solicitors and the Law Society, who are the first, second and fourth defendants in these proceedings. The causes of action include defamation, a claim made under the Human Rights Act 2004 (ACT) (HR Act), and allegations of various offences under the Crimes Act 1900 (ACT) and the Criminal Code 2002 (ACT).
The first solicitor involved is Mr Reis, who the plaintiff alleges authored material that defamed the plaintiff. The second solicitor involved is Ms Sarah Avery, in her role as the President of the Law Society, who chaired meetings of the Law Society on 21 March 2016 and 13 September 2017.
In addition, the plaintiff has made allegations against the Australian Capital Territory, on the basis of some form of control the plaintiff believes it exercises over the Law Society.
For ease of reference given the separate (but at times overlapping) arguments made, I will refer to the first, second and fourth defendants collectively as the Defendants, and the third defendant as the Territory.
The present applications
There are three applications for determination before the Court. The first was filed on 20 November 2017 by Mr Reis and the Law Society, the respondents in the appeal proceedings. It seeks that the plaintiff be declared a vexatious litigant, pursuant to s 67A of the Supreme Court Act 1933 (ACT) (the Act).
The respondents also sought an order to extend the time in which to file their evidence on the application for leave to appeal. Pursuant to r 5076 of the Court Procedure Rules 2006 (ACT) (Rules), the respondents were required to file and serve any affidavit on which they wished to rely within 14 days of being served with the application for leave to appeal. Due to the voluminous nature of the material, it took the respondents a little while longer to prepare, file and serve the affidavit and accordingly, it was necessary to seek an extension of time pursuant to r 6351(2) of the Rules. Given the explanation for the delay, its short duration and the lack of any real prejudice to the applicant, I saw no difficulty with extending the time in which to file the affidavit and the order will be made.
The second application was filed on 23 November 2017 by the first, second and fourth defendants to the Claim, being the two solicitors and the Law Society. It seeks summary judgment on the Claim pursuant to r 1147(1) of the Rules, on the basis that the proceedings disclose no reasonable cause of action and are otherwise vexatious.
The third application, filed 9 January 2018, is brought by the Territory, seeking to set aside the Claim pleaded against it, on the basis that no reasonable cause of action is disclosed. Such application is founded upon r 40 of the Rules. The Territory has, to date, only filed a conditional notice of intention to respond, pursuant to r 111 of the Rules. Although it was required to file the application seeking to set aside the originating process within 28 days (r 111(3)), part of that 28 period fell over 25 December 2017 to 1 January 2018, and r 6350(3) of the Rules excludes that period from being counted as part of the 28 days.
In subsequent written submissions, the Territory also sought alternative relief under r 425 of the Rules, namely to strike out the pleading for the same lack of disclosure of a reasonable cause of action. Although the basis for the relief sought should have been made clear in the application, as the plaintiff had clear notice of the alternative basis on which the argument was being put, the argument proceeded in respect of both r 40 and r 425.
The three interlocutory applications in the two matters were heard together. For completeness, the plaintiff has also filed interlocutory applications against the opposing parties in each proceeding, but as events transpired during the hearing, it became apparent that the preferable course was to defer dealing with those applications until the outcome of the applications brought by the defendants/respondents was known, as some of the arguments raised by the plaintiff on those applications may fall away.
Defendants’ application for summary judgment
I will deal with the application for summary judgment on the Claim first, as Mr Reis and the Law Society contend it may have a bearing on their application as to whether the plaintiff should be declared a vexatious litigant.
The principles applicable to an application for summary judgment are set out in Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132 at [5]. It is unnecessary to set out the principles in their entirety again. The critical point to note is the very high threshold that must be met before a judgment will be entered on a summary basis, and the fact that the courts exercise extreme caution in making any determination that a summary judgment ought to be entered.
By way of general overview, the Defendants raise the following arguments:
(a)The claims in defamation and under the HR Act are out of time.
(b)The Defendants were exercising functions under s 587A of the Legal Profession Act 2006 (ACT) (LP Act), and as such are afforded an immunity from suit against civil claims.
(c)Any actions based on complaints arising out of events between the parties in 2016 have already been dealt with in earlier litigation, and accordingly are an abuse of process of the court.
(d)The pleading in its entirety is embarrassing, in that the allegations do not enable the Defendants to understand the case pleaded sufficiently to respond to it.
Section 40B of the HR Act makes it unlawful for a public authority to act in a way that is incompatible with a human right; or in making a decision, to fail to give proper consideration to a relevant human right. The particular human rights said to have been infringed are discussed below. Section 40C of the HR Act creates a statutory cause of action against a public authority that has acted in contravention of s 40B (s 40C(2)(a)), for a person who is or would be a victim of the contravention (s 40C(2)(b)).
The time limit in which a claim under s 40C of the HR Act is to be brought is stipulated in s 40C(3) of the HR Act, as follows:
A proceeding under subsection (2) (a) must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise.
Under s 40C(4) of the HR Act, the plaintiff is unable to obtain relief by way of damages. However the Claim seeks other forms of relief, including an apology.
A claim for defamation is governed by the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act). Section 118 provides for the continuation of the tort at general law, subject to the governing provisions under Chapter 9 of the Wrongs Act.
The time limits affecting a claim for defamation under the Wrongs Act are to be found in section 21B of the Limitation Act 1985 (ACT) (Limitation Act), which provides:
Defamation proceedings generally to be commenced within 1 year
(1) An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.
(2) However, a court must, if satisfied that 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 the publication, extend the limitation period mentioned in subsection (1) to a period of up to 3 years running from the date of the publication.
As to the assertion of a complete defence by way of immunity from suit, s 587A of the LP Act is in the following terms:
Protection from liability
(1)A person is not civilly liable for anything done or omitted to be done honestly and without recklessness—
(a)in the exercise of a function under this Act; or
(b)in the reasonable belief that the act was in the exercise of a function under this Act.
(2)This section does not limit any other provision of this Act about protection of an entity from liability.
In relation to the manner in which the Claim is pleaded, rr 405-407B and 430 of the Rules set out the requirements to be followed. They include matters such as each material fact alleged being separately pleaded; allegations of malice and intention being specifically pleaded (and supported with proper particulars); and that the pleading must include all particulars necessary to define the issues for and prevent surprise at the trial, and to enable the opposite party to identify the case that the pleading requires that party to meet.
Before dealing with the substantive arguments above, it is appropriate to record at the outset that there is no doubt that the Claim, as pleaded, has real difficulties. The plaintiff accepted that this was the case and has indicated that he wishes to have an opportunity to re-plead the allegations in the Claim.
The issue is thus whether he should be given that opportunity in respect of any of the causes of action pleaded, based on the affidavit evidence that was before the Court, the bundle of documents that was handed up by the plaintiff and the oral submissions made by him as to the nature of the case he seeks to put before the Supreme Court. Each cause of action will be considered in turn.
The claim in defamation
The first cause of action is brought in defamation against the Defendants. The plaintiff alleges that on or about 21 March 2016, Mr Reis, acting on behalf of the Law Society as an asserted “instrumentality” of the Territory, concocted a malicious phrase of “lethal violence” and further, used that term with the intention and motive of depriving the plaintiff of a livelihood as a solicitor (by refusing him certification to practise as a solicitor in the Territory).
The plaintiff claims further that, since 2013, Mr Reis has been communicating to “uncountable people”, via word of mouth and email, that the plaintiff was a person who threatened others with “lethal violence”.
The plaintiff alleges that he was easily identified in the publication. The plaintiff further alleges that Mr Reis did not honestly hold an opinion that the plaintiff had threatened him with “lethal violence”.
Although this does not appear from the pleading, in oral submissions, it transpired that, as stated above, 21 March 2016 was the date when the Law Society refused to issue the plaintiff with a practising certificate. Such decision was made at a meeting of the Council of the Law Society. Mr Reis is alleged to have provided a memorandum on which the Law Society acted and to have spoken at the meeting. Although, the memorandum was not in evidence, the allegations are taken at their highest on an application for summary judgment.
The first time that the plaintiff says he discovered there was a memorandum provided to the Law Society by Mr Reis was when Mr Reis referred to such a document while giving evidence in a hearing before the Tribunal on 22 November 2016. An extract of the transcript of the hearing before the Tribunal was in evidence before this Court, and it confirms that Mr Reis did give evidence to the effect that he prepared a memorandum with attachments in relation to the plaintiff, which formed part of the agenda material for the meeting that was held by the Law Society on 21 March 2016.
The Tribunal’s reasons were also in evidence on this application: see Ezekiel-Hart v Reis & Anor (Discrimination) [2017] ACAT 3. A number of footnotes to those reasons confirm that the memorandum prepared by Mr Reis was in evidence before it. The memorandum was dated 17 March 2016. It appears to have been received by the Tribunal on 18 November 2016.
Further, Mr Reis gave oral evidence to the Tribunal about his view that the plaintiff had made threats to him that were of concern. He says these threats were contained in documents dated prior to 2013. He went on to say that he did not have any recollection of threats after that time but he could not be sure.
The plaintiff further alleges in the Claim that Mr Reis reported the same words “lethal violence” and “lethal threat” to “Terrorist Police”, which led to the detention of the plaintiff by the Australian Federal Police (AFP) in an airport in Sydney in July 2014.
As a result of the publication, the plaintiff alleges he suffered “innumerable consequences” which included a loss of work and employment opportunities, the denial of a practising certificate and other detriments arising from the publication of defamatory material to security agencies, namely the AFP.
In addition to compensatory (including aggravated) damages, he seeks a number of apologies. Relevant to the cause of action in defamation, he seeks an apology for the “incompleteness felt daily arising from loss work and reputation”.
Findings with respect to the claim in defamation
From the above, and construing the pleading in a manner most beneficial to the plaintiff, the essential elements of a claim in defamation are contained in the Claim pleaded; these being publication, identification and defamatory meaning: see, for example, Cristian v Bottrill [2016] ACTSC 315 at [11] per Refshauge ACJ. The current deficiency in the proper particularisation has been supplied by the plaintiff through evidence and oral argument, so that there is the substance of an arguable claim in defamation being propounded by the plaintiff, as follows:
(a)There was a communication published to a third party, in that there existed a memorandum which was circulated to persons other than the plaintiff in March 2016.
(b)The communication expressly identified (or was about) the plaintiff.
(c)The published communication carried a defamatory meaning, with the imputation to be drawn that the plaintiff was someone who threatens others, including Mr Reis, with “lethal violence”.
There is also possibly an allegation that the communication was published in conversations in 2016 or in documents prior to 2013. Given that currently, each act of publication gives rise to a separate cause of action, (Dow Jones & Co Inc v Gutnick [2002] HCA 56, 210 CLR 575 at [27]) I do not need to consider those possibilities for the purpose of determining whether an arguable case is apparent on the material before the Court, such as to warrant leave being granted to file an amended statement of claim.
As to whether the arguable claim, identified above, is barred by statute, I am not satisfied that the claim is conclusively outside the relevant limitation period on the present evidence. As set out above, the first time the plaintiff says he came to know of the communications, that he alleges included defamatory statements about him, was during the Tribunal proceedings in November 2016.
The memorandum was prepared by Mr Reis for the meeting of the Law Society on 21 March 2016. The Claim was filed on 6 November 2017, within a year of the plaintiff’s alleged discovery. If one assumes the date of publication was approximately 17 March 2016 (being the date of the memorandum), it may be that s 21B(2) of the Limitation Act applies (see [21] above).
The Court is not in a position on the current state of the pleaded Claim to be satisfied either way whether the time must be extended in accordance with s 21B(2) of the Limitation Act. However, there is sufficient material before the Court (being the relevant transcript before the Tribunal and the reasons for decision dated 24 January 2017) to demonstrate that the issue whether it was reasonable for the plaintiff to commence proceedings within a year of publication is at least arguable. For these reasons, it is inappropriate to deal with the argument based on the expiry of a limitation period on a summary basis.
As to the immunity from suit afforded by s 587A to those fulfilling functions under the LP Act (see [22] above), the section only applies where the relevant person is acting honestly and without recklessness. The complaint pleaded by the plaintiff is that not only were the comments made by Mr Reis untrue, but that it was an opinion he did not honestly hold. Elsewhere in the pleading, the plaintiff alleges that the comments or statements he alleges to have been defamatory were lies, that the conduct was a “concoction”, and that the conduct was with malice.
The pleading is thus different to the terms of the pleading that were before Refshauge J in earlier litigation involving the plaintiff, Mr Reis and the Law Society, and where Refshauge J found that s 587A of the LP Act was a complete defence: see Ezekiel-Hart v Law Society of the Australian Capital Territory, Reis, King and Barnett [2012] ACTSC 103 (Ezekiel-Hart v Law Society (2012)) at [63].
Allegations of dishonesty and malice are obviously serious allegations. As has been already mentioned, such allegations must be separately and distinctly pleaded. I note that the memorandum was not before the Court on this application and it appears to be critical to the plaintiff’s case on defamation. The plaintiff says he does not have it, but it is clear that it did exist at the hearing before the Tribunal. It is critical, because the precise words said to have been written or spoken must also be pleaded; it is not enough to identify their substance: Collins v Jones [1955] 1 QB 564.
However, putting aside the necessity for proper particularisation of the allegations, including those of dishonesty and malice, which may be addressed through the filing of an amended statement of claim, there is an arguable case raised that s 587A of the LP does not apply to the conduct in question in relation to Mr Reis. In light of the significant history of litigation or at least the frequent interaction between the parties, the argument is not fanciful or completely without foundation. I am unable to conclude on a summary basis that s 587A of the LP Act is a complete defence to any pleaded tort in defamation, such as to enter summary judgment upon it now.
In relation to the allegations of defamation being an abuse of process, due to earlier litigation involving similar complaints, it is difficult to see how an abuse of process arises, at least in relation to any claim based on conduct in March 2016. Save as to the Tribunal proceedings the subject of the present appeal proceedings, all the earlier litigation involving the plaintiff, Mr Reis and the Law Society occurred before the memorandum in question was created.
The result is that it is not appropriate to enter judgment dismissing the cause of action in defamation on a summary basis. The plaintiff will be given the opportunity to plead his case by way of an amended statement of claim, setting out separately each fact material to establishing the elements of defamation and specifically pleading the dishonesty alleged against Mr Reis.
To the extent that the plaintiff’s cause of action against the Law Society is based on vicarious liability, the material facts supporting that case must also be pleaded, so that each of the defendants is able to understand the case to be met.
In the first instance, the parties should be given an opportunity to liaise as between themselves in relation to any documents the plaintiff might no longer be able to access (or have in his possession), but which he requires in order to properly plead his claim in defamation.
Alleged offences under the Crimes Act 1900 (ACT) and the Criminal Code 2002 (ACT).
The Claim includes bare allegations of theft, dishonest appropriation of a sum of money, perverting the course of justice, false accusation of an offence and public mischief in creating a circumstance intended to make it appear falsely that a situation exists that calls for investigation or action by a police officer. Dotted throughout the pleading are references to ss 396, 399 of the Crimes Act 1900 and ss 308, 713 and 715 of the Criminal Code 2002.
Save for the offence of public mischief under s 396 of the Crimes Act 1900 (which is a summary offence and would be dealt with in the Magistrates Court), the maximum penalties for the offences named are longer than 2 years. They are indictable offences: s 190 of the Legislation Act 2001 (ACT).
Under s 68 of the Court Procedures Act 2004 (ACT), an indictable offence, triable before the Court, may only be prosecuted by information in the name of the Attorney-General or of any other person the Attorney-General, in writing, appoints (such as the Director of Public Prosecutions).
The plaintiff is not such a person and has no standing in this Court to bring the prosecutions. Accordingly, there is no basis for the Court to grant leave to the plaintiff to pursue those matters in this Court.
The cause of action based on contraventions of the HR Act
The plaintiff does, however, have standing to bring a statutory cause of action under s 40C of the HR Act, against any “public authority” that is in breach of s 40B of the HR Act.
The human rights said to have been contravened are those contained in ss 8(2), 10(1)(b), 12(b), and 17(c) of the HR Act. It is unnecessary to set those sections out in any precise detail. They cover the right to enjoy a human right without discrimination on the basis of race, the right not to be treated in a degrading way, and the right not to have one’s reputation unlawfully attacked.
As to those human rights, it appears that they are connected with the allegations giving rise to the claim in defamation, which I have already found to be arguable. Although there is a one year limitation period for bringing a claim under the HR Act (see [18] above), that may be extended with the Court’s leave, and those words in the statute import a degree of discretion into whether the claim may be brought.
These matters mean that it is not appropriate to enter summary judgment in respect of any statutory cause of action relying on ss 8(2), 10(1)(b), 12(b) and 17(c) of the HR Act. Leave will be granted to the plaintiff to plead any further claim based on those sections, and in that regard, the plaintiff is required to plead the matters required by rr 407A and 407B of the Rules which specifically deal with pleadings in human rights proceedings. There was a document purporting to comply with those rules filed, however it largely repeats the allegations in the Claim and as a consequence, suffers from the same defects in terms of lack of clarity arising from rolled up allegations, which in turn means that the Defendants are embarrassed by being unable to understand what has been pleaded sufficiently to respond to it.
The Claim also raised allegations based on ss 19 and 21 of the HR Act, which provide for (again, among other things) the right to be treated humanely and with dignity when a person is deprived of liberty, and the right to a fair trial, which includes the right to have “rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing”.
The plaintiff’s present pleading raises those matters by alleging that he has been deprived of the liberty to work and that, in doing so, he has been treated inhumanely. Further, the plaintiff alleges the refusal to grant him a practising certificate was a denial of procedural fairness and that he was denied him the right to a fair trial.
I cannot discern any arguable basis for a claim under either s 19 or s 21 of the HR Act to be brought against any of the present defendants. The allegations in the Claim fundamentally misconceive s 19 of the HR Act, which is directed to the treatment of persons who are deprived of their liberty – that is, those who are incarcerated or detained in some way.
The plaintiff has also misunderstood s 21 of the HR Act, in that he has not been denied any right to a fair trial. As submitted by counsel for the Defendants, s 81 of the LP Act expressly provides for a right of appeal to the Supreme Court against a decision of the Law Society to refuse to grant or renew a practising certificate. There is thus no denial of the plaintiff’s right to a fair trial under the HR Act.
It would have been open to the plaintiff to seek relief pursuant to s 81 of the LP Act in respect of the refusal in 2016 to grant a practising certificate, although the plaintiff may have required leave to do so, having regard to the time that has elapsed since the decision was made (see r 5103 of the Rules). The same avenue of challenge was referred to by Refshauge J in Ezekiel-Hart v Law Society (2012) at [58]. However, given that a local practising certificate granted under the LP Act only has force until the end of the financial year after the previous period of currency (s 37 of the LP Act), one might question the utility now of such a challenge.
For the above reasons, leave will not be granted to plead any claim based on either s 19 or s 21 of the HR Act.
The claim against the fourth defendant
The allegations against the fourth defendant are made through a number of rolled up allegations of conduct by the Defendants in relation to the abrogation of the plaintiff’s human rights or breaches of the HR Act.
Section 40C of the HR Act limits the proceedings that may be brought under that statute to public authorities. A public authority is defined in s 40 of the HR Act to include, among other things, a territory instrumentality, and an entity whose functions are of a public nature, when it is exercising those functions for the Territory or a public authority.
The Law Society is established by statute, as a corporation, pursuant to s 576 of the LP Act, the terms of which are set out below. Further, s 184A of the Legislation Act provides that a reference to an entity includes a reference to a person exercising a function on behalf of an entity.
Although the fourth defendant is an individual, because she is sued in her capacity as the President of the Law Society, there is an arguable basis for construing the words ‘public authority’ to include the fourth defendant.
However, in chairing two meetings and sending an email to the plaintiff notifying him of the outcome of a decision made by the Law Society, the fourth defendant was plainly exercising a function under the LP Act. There is no suggestion in the pleading that any conduct by the fourth defendant was in any way dishonest or reckless, and no basis for any such suggestion in the evidence before the Court. Accordingly, even if a civil cause of action did arise in relation to the conduct of the fourth defendant, the immunity provided by s 587A of the LP Act is a complete defence.
The plaintiff was unable to persuade me that there was any arguable basis for piercing that immunity with respect to the fourth defendant. Judgment will be entered for the fourth defendant.
The Territory’s application to set aside the originating process
The Territory contends that the allegations against it are unclear, imprecise and difficult to interpret. The Territory adopted the Defendants’ submissions that the allegations were embarrassing, largely incomprehensible and vexatious.
The claim against the Territory for failure to investigate or act
Although it is extremely difficult to discern, according to the allegations in [9] of the Claim, the Territory is sued because it “oversees the operation of” the Law Society through “its Attorney-General Department”. There are further allegations that the Territory had a duty of care to take reasonable steps to ensure the Law Society complies with its laws to avoid foreseeable harms, with reasonable steps including regular training.
The plaintiff’s allegations appear to be that in April and May 2014, he wrote to the Chief Minister’s Office, complaining about the Law Society or its officers, and seeking an investigation. The Chief Minister’s Office responded in May 2014, indicating the issue was “receiving attention”. A Minister from the Legislative Assembly then wrote to the plaintiff, informing him that the then Attorney-General would respond on behalf of the Government. Following that correspondence, the plaintiff received a practising certificate from the Law Society for the year 2013/2014.
However, the plaintiff’s complaint against the Territory is the failure to deal with his complaint against the Law Society. He alleges at [28] of the Claim:
The [Territory] never ask[ed] why [Mr Reis and the Law Society] failed to comply with its law to inform it how it treated [the] matter of “Lethal Violence” that tarnish[ed] and defame[d] the Plaintiff in all ramifications.
The plaintiff goes on at [33]-[35] of the Claim to allege that the Territory’s failure to “investigate the corrupt conduct” of Mr Reis and the Law Society led to the defamatory conduct in 2016, and the failure of the Law Society to grant the plaintiff a practising certificate.
The complaint against the Territory is that its failure to investigate his earlier complaint meant that there was nothing to deter the Law Society or its agents from engaging in the conduct the plaintiff alleges was defamatory in 2016, again leading to the refusal of a practising certificate and to him being “economically strangled”, by which I infer the allegation is that he was deprived of the opportunity to earn a living as a solicitor practising in the Territory.
From the above, notwithstanding that the allegations were pleaded in a rolled-up manner as part of the cause of action in defamation, it is apparent that the claim being propounded against the Territory is one in negligence. The plaintiff alleges a duty of care owed to the plaintiff through the control the Territory exercised over its “instrumentality”. It alleges a breach, being the failure to investigate earlier conduct by Mr Reis and the Law Society and the failure to ensure training of the officers of the Law Society. It alleges causation, in that the lack of any investigation or deterrence resulted in conduct in 2016 that in turn caused the Law Society to refuse to issue a practising certificate. It alleges loss and damage, in that the plaintiff lost the opportunity to earn a livelihood from being a solicitor in the Territory.
Thus, the elements of an arguable cause of action in negligence are apparent on the pleadings. The Territory went to some lengths to point out the degree of separation between the Territory and the Law Society. It relied upon s 576 of the LP Act:
Establishment of law society
(1)The Law Society of the Australian Capital Territory is established.
Note The Legislation Act, dict, pt 1, defines establish as including continue in existence.
(2)The law society—
(a) is a corporation; and
(b) may sue and be sued in its corporate name; and
(c) may have a seal.
(3)The law society has the legal capacity and powers of an individual both in and outside the ACT (including outside Australia).
Examples
1 to enter into a contract
2 to own, deal with and dispose of property
3 to act as trustee
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(4)The constitution of the law society is, subject to this Act, the constitution of the law society as in force immediately before the commencement of this section.
(5)An amendment of the constitution of the law society does not take effect unless it is approved by the Attorney-General.
(6)An amendment of the constitution of the law society that is approved by the Attorney-General takes effect—
(a)if the amendment states a day when it is to take effect that is not earlier than the day after the day the Attorney-General approves the amendment—at the beginning of the day stated; and
(b)in any other case—at the beginning of the day after the day the Attorney-General approves the amendment.
(7)A person is not entitled to be a member of the law society unless the person's name is on the roll of legal practitioners.
(8)A person who holds a practising certificate is entitled, on application to the law society, to be admitted to membership of the society without paying a fee for admission.
(9)A member of the law society is not, while the member holds a practising certificate, liable to pay to the society any annual subscription to the society's funds.
The Territory relied upon the fact that the Law Society is a corporation and therefore a separate legal entity. It alleged the Law Society was independent of the government which established it, with its own statutory powers and capacity. It thus eschewed any claim against it based on vicarious liability, or any direct duty.
However, as can be seen from s 576(5) and 576(6) of the LP Act, the Attorney General retains the ultimate control over the constitution of the Law Society. The existence of such statutory provisions may (or may not) be concerned with giving effect to the doctrine of responsible government, but they open up the question of the degree of ministerial control over this particular statutory corporation and what duties, in tort or otherwise, may be implied from the words of the statute or otherwise exist consistently with the statute.
There are other provisions of the LP Act which will be relevant to that question of construction. For example, the LP Act also creates the Legal Practitioners Admissions Board (s 558 of the LP Act), and any liability that would attach to a member of such board expressly attaches to the Territory: s 562 of the LP Act. This may be contrasted with s 587A of the LP Act, the terms of which were set out at [22] of these reasons, which does not contain the same provision for liability to attach to the Territory in respect of conduct by officers of the Law Society.
The proper construction of the statute to determine the scope of the Territory’s responsibility for conduct of the Law Society means that the independence of the Territory is not as straightforward as the Territory submits. What is clear is that any duty owed by the Territory is not a matter that can be determined on a summary basis. Accordingly, there is an arguable cause of action disclosed on the pleading, and the application to set aside the originating process fails. That finding also disposes of any alternative submission under r 425 of the Rules.
Nevertheless, the allegations are so poorly pleaded that this aspect of the Claim should also be struck out, with leave given to re-plead the cause of action specifically and by reference to the material facts said to support each element of the action.
The claim against the Territory based on breaches of the HR Act
The allegations against the Territory in respect of breaches of the HR Act are rolled up with the allegations made against the Defendants. To the extent that the matters pleaded are so defective that they will be struck out, the same defects will apply to the cause of action pleaded against the Territory.
It is presently difficult to discern whether it was intended that there be a separate cause of action against the Territory. However, as the plaintiff is to be given the opportunity to plead any statutory cause of action pursuant to ss 8(2), 10(1)(b), 12(b) and 17(c) of the HR Act against the Defendants with greater specificity, the same opportunity will be afforded to plead any claim specifically against the Territory. It may be that once the plaintiff gives proper consideration to precisely how the case is to be put against the Territory, the action under the HR Act will fall away.
In respect of the denial of a fair trial or rights relating to the deprivation of liberty (ss 19 and 21 of the HR Act), leave will not be granted to re-plead those aspects of the Claim against the Territory, for the same reasons as those given in relation to the Defendants.
As I have considered it appropriate to permit the opportunity to plead the case against the Territory, it is premature to enter summary judgment for the Territory on any claim under the HR Act. However, it is prudent to record that the fact that an order has not been made on this application does not prevent any subsequent application being brought once the circumstances in which the Territory is sued under the HR Act are clearly and separately pleaded.
Whether the plaintiff ought be declared a vexatious litigant
The final application before the Court is the application of Mr Reis and the Law Society for a declaration that the plaintiff is a vexatious litigant.
The statutory test
Section 67A of the Act governs the Court’s power to declare a person is a vexatious litigant. It provides (relevantly):
(1)In this section:
aggrieved person, in relation to proceedings, means a person aggrieved by the institution of those proceedings.
proceedings means any cause, matter, action, suit or proceeding of any other kind within the jurisdiction of any court or tribunal and includes any proceeding taken in connection with any such legal proceedings pending before any court or tribunal.
vexatious proceedings means proceedings—
(a)the purpose of which is to harass or annoy, to cause delay or for some other ulterior purpose; or
(b) that lack reasonable grounds.
(2)If, on the application of … an aggrieved person, the court is satisfied that a person has frequently instituted vexatious proceedings, the court may declare the person to be a vexatious litigant.
(3)A declaration may be expressed to apply only in relation to a particular type of matter.
(4)A declaration may be expressed to be subject to the conditions the court considers appropriate.
(5)If a person is declared to be a vexatious litigant—
(a)the person, or a person acting in concert with the person, shall not institute or continue any proceedings or, for a declaration expressed to apply only in relation to a particular type of matter, proceedings of that type, without the leave of the court; and
(b)any proceedings pending at the time of the declaration or, for a declaration expressed to apply only in relation to a particular type of matter, proceedings of that type, are stayed subject to any order of the court in relation to those proceedings.
(6)If the court gives leave to a person for subsection (5) (a), it may impose the conditions it considers appropriate.
(7)Conditions imposed under subsection (6) in relation to proceedings may include conditions—
(a)relating to security for costs in the proceedings; and
(b)specifying matters relating to the issue of process in the proceedings.
(8)Unless expressed to remain in force until the end of a date specified in the declaration, a declaration remains in force until revoked by the court.
(9)The court may vary a declaration.
(10)Subject to any order of the court, an order making, varying or revoking a declaration is a notifiable instrument.
…
Applicable Principles
Although a number of the principles extracted from the authorities have been developed in the context of legislation in other jurisdictions in slightly different terms, the broad principles are the same and it is unnecessary for the purposes of resolving this application to delve into the legislative nuances between vexatious litigant provisions in different jurisdictions.
The purpose of an order under s 67A of the Act is not to impose punishment for past litigious misdeeds, but to shield both the public and the Court itself: Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (Official Trustee in Bankruptcy v Gargan) at [3]; cited with approval in Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192 (Attorney General v Gargan) at [8]. Master Mossop (as his Honour then was) discussed some of the features of the statutory provision in Vatarescu v Commonwealth of Australia and the Australian Capital Territory [2013] ACTSC 270; 285 FLR 1 (Vatarescu) at [32]-[37]. Referring to that judgment more recently in Barlow v Law Society of the ACT [2018] ACTCA 16, Elkaim J recently stated at [28] that the bar for making an order pursuant to s 67A of the Act remained “very high”.
There are three considerations: whether the person has instituted vexatious proceedings, whether he (in this case) has done so frequently, and whether the Court should exercise its discretion to make the orders sought.
Vexatious proceedings
As seen from the definition in s 67A(1) of the Act, there are two limbs defining what constitutes “vexatious proceedings”. As to the first limb in para (a), proceedings instituted for ‘some other ulterior purpose’ in the definition are broad enough to encompass proceedings that are an abuse of process.
There may be uncertainty as to whether the reference to a ‘purpose’ in para (a) of the definition is a subjective or objective test. For example, the filing of an application in proceedings (itself a ‘proceedings’ as defined in the section), may have the effect of causing delay, but not be brought for that ‘purpose.’
The issue arose for consideration during the course of argument, as Mr Reis and the Law Society relied on both limbs of the definition of “vexatious proceedings”, contending with respect to para (a) that the test was objective. There is some judicial consideration devoted to similar words in other jurisdictions to the contrary: see Pascoe v Liprini [2011] NSWSC 1484 at [10] per Adamson J; Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [14]-[19] per Basten JA. In the more recent decision of The Attorney General for the State of New South Wales v Mohareb [2016] NSWSC 1823 (Mohareb), Schmidt J construed the relevant legislation there under consideration to include proceedings that objectively were vexatious even if they were not intentionally conducted so as (among other things) to harass or annoy or cause delay.
Her Honour’s reasoning for such a finding in Mohareb cannot be applied to the definition in the Act here, because of the differences in the wording of the definition. However, it is not necessary to deal with that submission of Mr Reis and the Law Society for, as will be seen, the application has ultimately been resolved without it turning on the proper construction of para (a) of the definition.
With regard to the second limb in para (b) of the definition, in determining whether proceedings lack reasonable grounds, it is important to distinguish the difficult from the ridiculous and the unlikely from the hopeless: Official Trustee in Bankruptcy v Gargan at [6] per Perram J.
When making the assessment of whether proceedings were vexatious, regard may be had to the findings and result in the proceedings under consideration: Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192 (Attorney General v Gargan) at [7], Attorney-General v Chan [2011] NSWSC 1315 (Chan) at [39], Attorney General of NSW v Wilson [2010] NSWSC 1008 (Wilson) at [22], Attorney General (NSW) v Croker [2010] NSWSC 942 (Croker) at [125], Attorney General vTareq Altaranesi [2013] NSWSC 63 at [16].
Ordinarily, the court that heard and decided the earlier proceedings will have been best placed to determine whether they were an abuse of process or instituted without reasonable grounds. The seriousness of the consequences of making a vexatious proceedings order leaves it open to the court hearing an application for the declaration to depart from the findings made in earlier proceedings. However, in the ordinary course it would require very persuasive material to justify such a departure: Potier v Attorney-General in and for the State of New South Wales [2015] NSWCA 129; 89 NSWLR 284 (Potier) at [21]-[23]; Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [53]-[54]; Croker at [125].
Frequently
The statutory term ‘frequently’ is a relative term and must be looked at in the context of the litigation being considered: Wilson at [12]-[14]. The issue is not to be assessed merely by an arithmetic calculation: Viavattene at [49] per Leeming JA. The number of proceedings considered may be small if the proceedings are an attempt to re-litigate an issue already determined against the person. The court must examine the nature of the applications to determine whether they are simply a consequential aspect of the original proceedings, or something different. The court may be more willing to conclude that vexatious proceedings are brought frequently where the proceedings are brought against the same person or involve the same subject matter: see Wilson at [12]; Croker at [22]; Attorney General v Gargan at [7]; Siteberg v Maples [2010] NSWSC 1344 (Maples) at [31]- [32]; and Potier at [114]- [118].
The Court’s discretion
Upon satisfaction that the plaintiff has frequently instituted vexatious proceedings, the discretion to make the declaration is unconfined, with relevant factors informed by the protective purpose for which the order serves: Official Trustee in Bankruptcy v Gargan at [12], cited with approval in Attorney General v Gargan at [8] and in Chan at [40].
A display of insight by a litigant into his (in this case) previous litigious history will be relevant, as it may suggest, although not determine, a diminution in the risk posed to the public. On the other hand, the manner in which the litigation generally has been conducted (including how the litigant conducts his general affairs) is capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction, it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise: Official Trustee in Bankruptcy v Gargan at [12].
If a declaration is made, the plaintiff is not prevented from enforcing any legitimate claim. Rather, the Court acts as a gatekeeper or supervisor to ensure that the processes of the Court are not abused: Brogden v Attorney-General [2001] NZCA 208; NZAR 809 at [23].
Evidence
The respondents relied upon the affidavit of Mr Michael Phelps, solicitor for the respondents, which contained numerous proceedings.
The affidavit makes reference to the fact that on 4 April 2014 in a different jurisdiction, Judge Neville of the Federal Circuit Court made orders under s 88Q of the Federal Circuit Court of Australia Act 1999 (Cth) that the plaintiff was a vexatious litigant, with the reasons set out in Ezekiel-Hart v The Law Society of the ACT and Anor [2014] FCCA 658, a copy of which was exhibited to the affidavit of Mr Phelps.
The affidavit evidence discloses that since 2009, the parties have been involved in a number of rounds of litigation against each other, in various courts and tribunals in the Territory and in the Federal jurisdiction. The plaintiff has made frequent complaints of discrimination and claims for damages against the Law Society and Mr Reis, none of which have been substantiated. The interaction between the parties appears to arise every time the plaintiff applies for an unrestricted practising certificate.
In light of the findings below as to the Court’s discretion, it is not necessary to set out each of the ‘proceedings’ relied upon by Mr Reis and the Law Soceity as being “vexatious proceedings” under s 67A of the Act.
Findings on the vexatious litigant application
There is no doubt that the Law Society and Mr Reis would each be an ‘aggrieved person’ and that the proceedings relied upon by them are ‘proceedings’ within the definition of the Act.
It is also fair to say that the plaintiff is a frequent litigant in both the Tribunal and the Supreme Court, and in other jurisdictions. That does not mean that he is necessarily a vexatious litigant. One indicator that a plaintiff may be a vexatious litigant is where initial litigation spirals with an ever increasing string of respondents who come into contact with the litigant. The fact that Ms Avery was named as a defendant for simply chairing a meeting and sending a notification email (noting that the email had no operative effect in terms of any decision that may affect the plaintiff’s statutory rights) was of some concern in this regard, in that it suggests a lack of insight into whether a cause of action may truly exist against the person.
I have also given careful consideration to the history of litigation that led to an order in similar terms being made by Judge Neville in the Federal jurisdiction. Ordinarily, it is necessary to identify which of the proceedings relied upon by the applicant were in fact vexatious. It is a finding relevant to the exercise of determining the proportion of vexatious proceedings, a matter important to the exercise of discretion: Mahmoud v Attorney General of New South Wales [2017] NSWCA 12 at [49] per Payne JA, with whom Beazley P and Macfarlan JA agreed. In this case, given the orders made in the Federal jurisdiction, I have assumed, without deciding, that there have been a number of vexatious proceedings which were instituted against Mr Reis and the Law Society, and even that they have been done so frequently. As any specific findings that would have been made in that regard are subsumed or overtaken by the reasoning that follows, the individual consideration given to each proceeding will not be set out here.
There are three reasons why I would not, on this occasion, exercise the discretion of the Court to declare the plaintiff to be a vexatious litigant.
The first is that the Law Society is the regulator of the profession chosen by the plaintiff. He has a law degree and has undertaken further study, and has at one time held a practising certificate. He is entitled to apply to the Law Society for a practising certificate and as he has not been struck off the roll, he is eligible to do so. The plaintiff’s real concern is that as his practising certificate has not been renewed, he currently has no means of making a livelihood on his own out of his chosen profession.
That context does affect how the Court views the number of proceedings brought against the same persons and involving similar subject matter. This is a case where the plaintiff will likely be interacting with the Law Society on an ongoing basis. That does not mean that regulators must endure repeated baseless litigation with those they regulate. It simply means that where a person’s livelihood is at stake, it might be understandable that a litigant will fight with whatever legal tools he considers available. I consider the subject matter of the proceedings to be similar to litigants defending bankruptcy proceedings or involved in family law proceedings. These are subject matters close to the heart, and not of themselves frivolous.
The second reason is that I have rejected Mr Reis and the Law Society’s submission that the Claim is vexatious. As seen from the above reasons, there were aspects of the Claim that had no reasonable prospect of success, but others raise triable issues. The outcome of the appeal proceedings is not yet known. This is not a case where the existing proceedings that may be seen as the catalyst for the application are themselves so lacking in prospects as to require the protection of the Court’s processes against unwarranted usurpation of its time and resources to avoid loss caused to those who face actions which lack substance: see Vatarescu at [36] and the case there-cited.
The third reason is that the plaintiff is presently demonstrating some degree of insight into his disputes and the litigation process. He submitted that there was a gap of some years between his previous litigation against Mr Reis and the Law Society. His present pleadings, although admittedly poor and ultimately struck out in respect of the Claim, did demonstrate some attempt not to simply re-agitate the same arguments that had been previously rejected, albeit that the subject matter of the allegations was similar. Further, before the Court, the plaintiff made submissions that could be understood and were not fanciful, and he showed some insight into the difficulties with the claims he was seeking to bring. Importantly, he was prepared to redraft pleadings when deficiencies were pointed out to him.
Given the lengthy history of litigation between the parties and the familiarity of the arguments being raised before the Court, the position adopted by Mr Reis and the Law Society has some force. However, I am not satisfied that a pattern has yet emerged where it is necessary to make a declaration under s 67A of the Act as a matter of discretion to protect the public at large. Further, because of the nature of the present proceedings, the present degree of insight demonstrated by the plaintiff and the fact that the current proceedings on their face are arguable, I would not accede to the making of a protective order on a more limited basis under s 67A(3) of the Act.
Costs
The plaintiff having been successful in defending the vexatious proceedings application, he is entitled to any costs reasonably incurred, on the ordinary basis.
As to the claims for summary judgment on the Claim and seeking to set aside the originating process, the plaintiff has also been successful in establishing that there is an arguable case in respect of the first, second and third defendants, although what has been pleaded is far from satisfactory and this needs to be remedied, and the plaintiff has agreed to do it. To that extent, the defendants have been successful in that they could not have pleaded to the Claim that was before the Court.
The applications being heard together, and the parties having each had some success, the just outcome is to make no order as to the costs of the applications in respect of the first, second and third defendants, to the intent that each party pay their own.
In respect of the fourth defendant, Ms Avery, she has been completely successful and will be entitled to a costs order in her favour.
Conclusion
In proceeding no. SCA 75 of 2017, the orders are as follows:
(1) Leave is granted to the respondents to extend the time within which to comply with r 5076 of the Court Procedures Rules 2006 (ACT) to 20 November 2017.
(2) The application filed 20 November 2017 is otherwise dismissed.
(3) The respondents are to pay any legal costs and disbursements incurred by the appellant on the application, such costs not to be recoverable until the resolution of the proceedings.
In proceeding no. SC 433 of 2017, the orders are as follows:
(1) The statement of claim filed 6 November 2017 is struck out.
(2) The plaintiff is granted leave to file an amended originating claim and amended statement of claim against the first, second and third defendants, limited to claims in defamation, negligence or pursuant to ss 8(2), 10(1)(b), 12(b), and 17(c) of the Human Rights Act 2004 (ACT).
(3) Judgment is entered for the fourth defendant.
(4) The plaintiff is to pay the fourth defendant’s costs.
| I certify that the preceding one hundred and twenty [120] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |
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