Ezekiel-Hart v Reis & Anor (Appeal)

[2017] ACAT 76

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

EZEKIEL-HART v REIS AND ANOR (Appeal) [2017] ACAT 76

AA 5/2017

Catchwords:              APPEAL – discrimination complaint – race and political conviction – access to premises – decision not to renew practising certificate – whether appeal should be subject to summary dismissal – whether unfavourable treatment – whether arguable breach of requirements of procedural fairness relevant

Legislation cited:      ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 32, 79, 82

Discrimination Act 1991 ss 7, 8, 15, 19, 20, 16
Human Rights Commission Act 2005 s 53A
Legal Profession Act 2006 ss 11, 36, 44, 47, 69

Subordinate

Legislation cited:      ACT Civil and Administrative Tribunal Procedural Rules 2009 (No.2) r 21(c)

Cases cited:               Barlow v Law Society [2017] ACTSC 35

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Ezekiel-Hart v The Law Society of the ACT [2014] FCCA 658
Fox v Percy (2003) 214 CLR 118
Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
Hart v Reis [2017] ACAT 3
Huang v University of New South Wales [2014] FCA 1137
Kioa v West (1985) 159 CLR 550
Law Society v Legal Practitioner 2 [2016] ACAT 120
Legal Practitioner RH v Council of the Law Society of the ACT [2016] ACAT 94
Spencer v Commonwealth (2010) 241 CLR 118
Singh v Owners Strata Plan No. 11723 (No.3) [2012] FCA 1121
Zegarac v Dellios [2007] FCAFC 58

Tribunal:                   Acting Presidential Member R Orr QC

Date of Orders:  21 September 2017

Date of Reasons for Decision:         21 September 2017

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          AA 5/2017

BETWEEN:

EMMANUEL EZEKIEL-HART

Appellant

AND:

ROBERT REIS

First Respondent

COUNCIL OF THE LAW SOCIETY OF THE ACT

Second Respondent

TRIBUNAL:   Acting Presidential Member R Orr QC

DATE:21 September 2017

ORDER

The Tribunal orders that:

1.The application under section 32 of the ACT Civil and Administrative Tribunal Act 2008 by the respondents is dismissed.

2.The appeal is dismissed.

………………………………..

President G Neate AM

Delivered for and on behalf of the Tribunal

REASONS FOR DECISION

1.In these proceedings, Emmanuel Ezekiel-Hart (Mr Ezekiel-Hart or appellant, who was the applicant in the original tribunal proceedings) appeals against a decision of the ACT Civil and Administrative Tribunal in Ezekiel-Hart v Reis [2017] ACAT 3 by Senior Member L Beacroft (original tribunal decision). Mr Ezekiel-Hart made a complaint under the Discrimination Act 1991 (Discrimination Act) on the grounds of race and political conviction discrimination, vilification and victimisation.[1] The complaint was against Robert Reis (Mr Reis or the first respondent), and The Council of the Law Society of the Australian Capital Territory, (Law Society or the second respondent) which is Mr Reis’ employer.

[1] Discrimination Act, sections 7, 8, 67A and 68

2.The complaint as determined by the original tribunal raised two events:

(a)the treatment of Mr Ezekiel-Hart in relation to access to the premises of the Law Society on 23 February, 2016 (access to premises claim); and

(b)the decision of the Law Society on 21 March 2016 not to renew Mr Ezekiel-Hart’s practising certificate (practising certificate claim).

The complaint concerned direct discrimination[2] in the areas of professional or trade associations, access to premises, and goods, services and facilities.[3]

[2]     Ezekiel-Hart v Reis [2017] ACAT 3 at [20]; Discrimination Act, section 8

[3]     Ezekiel-Hart v Reis [2017] ACAT 3 at [22]; Discrimination Act sections 15, 19 and 20. It may be that section 16 concerning qualifying bodies was also relevant, see the original tribunal decision at [86]

3.In summary, the original tribunal found that there was no unfavourable treatment for the purposes of the Discrimination Act in relation to the access to premises claim. At any rate, if there was unfavourable treatment it was not on the basis of race or political conviction. Also, the original tribunal found that in relation to the practising certificate claim, the decision not to approve the appellant’s application was not because of race or political conviction. The original tribunal considered the evidence and could not draw a reasonable and definite inference of racism from the circumstances. The tribunal found that there was no victimisation or vilification of the appellant.[4]

[4]     Ezekiel-Hart v Reis [2017] ACAT 3 at [2]

4.This decision concerns both an application under section 32 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) by the respondents to dismiss summarily the appeal by Mr Ezekiel-Hart, and the substantive appeal by Mr Ezekiel-Hart.

Summary of appeal decision

5.The basis of Mr Ezekiel-Hart’s appeal was in parts difficult to understand. Insofar as it could be understood, Mr Ezekiel-Hart did not put forward any grounds for overturning the original tribunal decision. The appeal is therefore dismissed. In view of this decision it is not necessary to determine whether to dismiss summarily the appeal under section 32 of the ACAT Act.

Background

6.Much of the background to this matter is set out in the original tribunal decision. In summary, in a letter dated 29 June 2016 the ACT Human Rights Commission referred a complaint by Mr Ezekiel-Hart to the ACAT under section 53A of the Human Rights Commission Act 2005.[5]

[5]     Ezekiel-Hart v Reis [2017] ACAT 3 at [3]

7.There had been significant previous history between the parties. Mr Ezekiel-Hart had made various applications in various courts in relation to actions of the Law Society.[6] However, none of these cases concerned the events specifically in issue in the original tribunal decision and this appeal.

[6]     Ezekiel-Hart v The Law Society of the ACT [2014] FCCA 658 at [40]

8.In the original tribunal proceedings, on 11 October 2016 the respondents applied to have the application by Mr Ezekiel-Hart dismissed in whole or in part under section 32 of the ACAT Act because he “has been declared vexatious by the Federal Court of Australia”, and/or because it was an “abuse of process” given the issues had been dealt with in prior proceedings. The original tribunal made orders dated 14 November 2016 that dismissed “…so much of the Complainants application that relates to the discrimination complaint dealt with by Neville J in Ezekiel-Hart v The Law Society of the ACT [2014] FCCA 658, delivered on 4 April 2014.” In effect this resulted in the original tribunal considering the appellant’s allegations in regard to two events that occurred during 2016, the access to premises claim and the practising certificate claim.[7]

[7]     Ezekiel-Hart v Reis [2017] ACAT 3 at [8]-[10]

9.A hearing on these issues was held on 21 and 22 November 2016. As noted at paragraph [4] above, in the original tribunal decision the complaints of Mr Ezekiel-Hart were not upheld. Particular aspects of the findings of the original tribunal are discussed further below.

Appeal proceedings

10.Mr Ezekiel-Hart lodged an application for appeal against the original decision dated 15 February 2017. This application attached a document entitled ‘Reasons for Appeal’ (15 February document). This document is very long, 65 pages, dense and it is difficult to discern the specific bases of the appeal.

11.At a directions hearing on 22 February 2017, a direction was made that the appeal be dealt with as a review of the original decision.[8] In an attempt to deal with the difficulties created by the 15 February document, Mr Ezekiel-Hart was ordered to file and serve “a document setting out the reasons for appeal by reference to paragraphs of the decision appealed against identifying the alleged errors of fact or law …” (direction 3). Mr Ezekiel-Hart provided what purported to be such a document on about 8 March 2017 (8 March document). However, this was also very long, 82 pages, repeated much of the material in the earlier 15 February document, was dense and it remained difficult to discern the specific bases of the appeal. For the most part this document failed to set out the reasons for appeal by reference to paragraphs of the decision appealed against identifying the alleged errors of fact or law, as required by the tribunal’s direction.

[8] See section 82 of the ACAT Act

12.The respondents made an application for interim or other orders dismissing summarily the appeal under section 32 of the ACAT Act. This was heard on 12 April 2017. The application was dismissed, but with leave to make a further application if necessary. Mr Ezekiel-Hart was directed to provide a further document setting out each ground or reason for the appeal; a specific reference to the relevant paragraph or paragraphs in the original decision appealed against; the errors of fact or law in relation to that reference in the original decision; in a document no more than 20 pages long. There was also an application for interim or other orders by Mr Ezekiel-Hart heard on 12 April which was dismissed.

13.Mr Ezekiel-Hart provided a further document dated 5 May 2017 entitled ‘Applicant/Appellant Grounds of Appeal’ (5 May document). Notwithstanding the clear terms of the order made on 12 April it was 29 pages long. There was in it some attempt to identify relevant findings of the original tribunal which were challenged, and some attempt to identify evidence, though it is hard to find a paragraph which does so in relation to the same issue. The Tribunal has focused on this document in this decision since it is the shortest and most comprehensible document provided by Mr Ezekiel-Hart. He also provided a document headed ‘Applicant/Appellant Submissions’ dated 5 May 2017 which was a further 17 pages long; a reply dated 27 May 2017 which was 15 pages long; and a list of authorities 12 pages long. Mr Ezekiel-Hart also provided a document entitled ‘The finding that the Appellant wants this Tribunal to find and substitute,’ which was treated as a submission.[9]

[9]     Transcript of proceedings, 1 June 2017, page 5

14.The respondents made a further application under section 32 of the ACAT Act for an order summarily dismissing the appeal dated 22 May 2017. This application and the appeal were heard together on 1 June 2017. The respondents indicated that they thought it appropriate to hear oral argument on both the summary dismissal and substantive appeal in order to finalise the proceedings as cost-effectively and expeditiously as possible. This was the course adopted. They provided a document entitled ‘Respondents’ written submissions on the appellants appeal’ (respondents’ submissions).

15.After the hearing Mr Ezekiel-Hart provided supplementary submissions in relation to some matters (appellant’s supplementary note) as did the respondents (respondents’ supplementary note).

Summary dismissal application

16.As noted, the respondents again seek orders under section 32 of the ACAT Act. Section 32 provides that the tribunal may dismiss an application or part of an application that it believes is frivolous or vexatious, lacking in substance, or otherwise an abuse of process.

17.The respondents submitted that the notice of appeal, even with the further ‘particulars’ in the 5 May document, was embarrassing, not particularised, incomprehensible and does not identify a matter of substance or an appealable error.[10]

[10]    Respondents’ submissions at [4]

18.An application for summary dismissal under section 32 of the ACAT Act is similar to strike out or summary dismissal proceedings in a court. Such proceedings are subject to a high threshold, generally that there is no cause of action or no ground of appeal. As French CJ and Gummow J stated in Spencer v Commonwealth, the exercise of “powers to summarily terminate proceedings must always be attended with caution.”[11]

[11]    Spencer v Commonwealth (2010) 241 CLR 118 at [24]

19.The respondents pointed out the need for an appropriate notice of appeal under rule 13(e)(iv) of the ACT Civil and Administrative Tribunal Procedural Rules 2009 (No.2) which requires the notice of appeal to state “briefly, but specifically, the grounds relied on in support of the appeal”. It was submitted that the approach of the Federal Court to such requirements should be adopted; namely that non-compliance with the rule does not of itself render an appeal incompetent; but if the notice is also incomprehensible or unrelated to the judgment, an appeal may be dismissed.[12] Reference was also made to the decision of Justice Penfold in Barlow v Law Society ACT.[13]

[12]    Zegarac v Dellios [2007] FCAFC 58 at [7]; Singh v Owners Strata Plan No. 11723 (No.3) [2012] FCA 1121 at [25]; Huang v University of New South Wales [2014] FCA 1137 at [53]-[54]

[13] [2017] ACTSC 35

20.The respondents also submitted that Mr Ezekiel-Hart had been given three chances to file proper grounds of appeal and still had not done so. They noted that a range of other proceedings brought by Mr Ezekiel-Hart had not been heard on their merits but summarily dismissed. It was argued that further indulgences should not be afforded, since while a court or tribunal has a duty to an unrepresented litigant, there is also an obligation is to ensure a fair trial for all parties. The respondents also noted the fact that Mr Ezekiel-Hart had in fact been admitted to practice as a lawyer for some period, and the objects of the ACAT Act. [14]

[14]    Respondents’ submissions, paras [24]-[31]; Huang v University of New South Wales [2014] FCA 1137 at [27]

21.The arguments of the respondents are clearly and strongly made. But there are some further factors to be considered. As noted above, in the original tribunal proceedings the respondents applied to have the application dismissed in whole or in part under section 32 of the ACAT Act. While in part successful, the original tribunal allowed the matter to proceed and considered Mr Ezekiel-Hart’s complaint in regard to two events that occurred during 2016, namely the access to premises claim and the practising certificate claim. The key findings of the original tribunal are clearly and concisely set out in the original tribunal decision, see especially at [71]-[88].

22.But in relation to these findings, under section 79(3) of the ACAT Act, a party to the original application may appeal the decision of the tribunal on a question fact or law, that is any question of fact or law. Under section 82, an appeal tribunal may deal with an appeal as a new application or as a review of all or part of the original decision on the application by the tribunal; as noted above this appeal is on the basis of a review of the original decision. The tribunal’s appeal jurisdiction is therefore broad, and somewhat different to that of the Supreme Court or Federal Court; there is some basis for thinking the approach to summary dismissal applications should also be different. Having been able to pursue his complaint before the original tribunal, notwithstanding an application under section 32, it seems appropriate to try to determine an appeal on any question of fact or law from that decision if possible.

23.More generally, the tribunal’s jurisdiction involves a very wide range of matters. These include not only discrimination complaints, but also, for example, mental health, landlord and tenant, guardianship, and small claims matters, and challenges to a wide range of government decisions. Many of the litigants before the tribunal are unrepresented people, who are disadvantaged in some way. There are also a range of litigants from different cultural backgrounds, and these can have an impact on their ability to participate in proceedings. In exercising its functions, including appeal functions, regard should be had to this reality. Under section 7 the tribunal is to ensure its procedures are as simple and informal as is consistent with achieving justice (see also section 6). Noting of course that the proceedings need to be conducted fairly and rationally, it would be inappropriate to impose requirements in relation to proceedings which many litigants could not meet, and which would subvert the access to justice rights of those for whom the tribunal exists.

24.Further, in this case it would require significant time and effort to determine whether each paragraph of the 5 May document is embarrassing, not particularised and incomprehensible and does not identify as a matter of substance an appealable error. Some are incomprehensible. Others for various reasons are irrelevant. But there are some paragraphs of the 5 May document which do indicate a comprehensible ground of appeal in light of the terms of the original tribunal decision. It does not seem an appropriate or efficient use of resources to spend significant time in analysing whether each paragraph could or should be the subject of a section 32 order on a preliminary basis; and then proceeding with the balance at a later time. Rather it would seem a more appropriate and efficient course for the Tribunal to simply determine as best as it can whether those grounds which can be understood and are relevant have been made out.

25.As discussed below, the Tribunal is of the view that none of those comprehensible and relevant grounds are made out. The Tribunal notes that if it had reached a view that the appellant had made out an arguable ground of appeal, it would have given the respondents an opportunity to respond before making a final decision; this step however was not necessary.

26.For these reasons is not necessary to determine the application to dismiss summarily the appeal under section 32 of the ACAT Act. That application can be dismissed.

Substantive appeal

27.As noted, some of the arguments raised by Mr Ezekiel-Hart are understandable, and can be dealt with. There are however some general points to be made in relation to these arguments.

28.First, as noted this appeal is being dealt with under section 82(b) of the ACAT Act as a review of the original decision, not as a new application. The appellant must show an error of fact or law that justifies the original tribunal decision being varied or reversed.[15] There is no requirement that the error be manifest, obvious or other than an error discernible by a proper assessment of the evidence and the law.[16] But Mr Ezekiel-Hart must show some factual or legal error.

[15]    Legal Practitioner RH v Council of the Law Society of the ACT [2016] ACAT 94 at [19]-[20]; quoting The Tenant v Commissioner for Social Housing [2016] ACAT 49

[16]    Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [35]-[38]

29.Second, the original tribunal’s decision turned to some extent on an assessment of the evidence of witnesses. No additional evidence was sought to be presented in the appeal.[17] In these circumstances there are significant difficulties in Mr Ezekiel-Hart being successful in relation to the original tribunal’s assessment of the evidence of witnesses.[18]

[17]    Rule 21(c) of the ACT Civil and Administrative Tribunal Procedural Rules 2009 (No.2) allows this

[18]    Fox v Percy (2003) 214 CLR 118 at [73]; Legal Practitioner Council of the Law Society of the ACT [2015] ACTSC 316 at [83]

30.Third, Mr Ezekiel-Hart made a complaint of direct discrimination in the original tribunal proceedings.[19] In the appeal he suggested that his complaint also involved indirect discrimination.[20] As the original tribunal decision makes clear at [20], this was not the case.[21] Further, he did not articulate the necessary elements for indirect discrimination under section 8(3) of the Discrimination Act, namely a condition or requirement that has the effect of disadvantaging him because of his race or political convictions. In these circumstances it is not appropriate that an indirect discrimination complaint be allowed to be pursued in this appeal.

[19]    Ezekiel-Hart v Reis [2017] ACAT 3 at [20]

[20]    Transcript of proceedings, 1 June 2017, page 10

[21]    See also transcript of proceedings, 21 November 2016, page 4

31.Fourth, the original tribunal found at [78] that “the applicant contended that the Tribunal should infer racial discrimination had occurred because ‘there is no other reason for such inequitable treatment.’” Mr Ezekiel-Hart seemed to continue to pursue this argument in the appeal.[22]

[22]    5 May document, page 12, paragraph (uu)

32.Further, the original tribunal noted in this context that Mr Ezekiel-Hart “raised that the history of events between him and the respondents which he contended continued in 2016 whereby he ‘continued to be treated in the manner than I am being treated demonstrated racial discrimination’”.[23] Some of these earlier events are set out at [46] of the original decision. The original tribunal found however that “there was no evidence of acts by the respondents that even suggested racism” (at [78]). The one potential piece of evidence, the reference to “Blackman status,” is discussed at paragraph [79] of the decision; whilst raised, no basis was provided for overturning the finding in relation to this specific piece of evidence.[24]

[23]    Ezekiel-Hart v Reis [2017] ACAT 3 at [44]

[24]    5 May 2017 document, page 20, paragraph 2(u)

33.In this appeal, Mr Ezekiel-Hart also raised a range of events prior to the two events the subject of the proceedings, the access to premises and practising certificate claim.[25] The relevance of these earlier events was not always clear; the evidence in support of Mr Ezekiel-Hart’s version of these was seldom specified; the relevant finding of the original tribunal which was sought to be challenged seldom if ever identified. These issues are often raised in the form of questions without suggesting any answer or ground of appeal; sometimes there is an answer but with no factual or legal basis for the answer provided; occasionally there is a reference to facts or evidence “specified below”, but without any indication as to where that is. As an example of some of these attributes, the first paragraph of the 5 May document states in full:

Following the Appellant’s 3 July 2008 Unrestricted Practising Certificate Application, on 21 July 2008 the Executive Director wrote “your latest application was considered by the Executive Committee as its meeting on 16 July 2008 … By my calculations you will be eligible to apply for an unrestricted practising certificate in early August 2008, assuming you continue to work three days a week for Ray Swift Moutrage & Associates”. Fact

[25]    5 May document, page 1, paragraph 1 and 2; page 3, paragraphs (1)(a) and (b); page 4, paragraphs (1)(c),(e),(f), (g), (h) and (i); page 5, paragraphs (1)(j), (k) and (m); page 12, paragraph (uu); page 15, paragraph (jjj); page 19, paragraph (o) and (p); page 20, paragraphs (r), (s), (t) and (u); page 23, paragraph (cc)

34.It seems that Mr Ezekiel-Hart’s argument in the appeal was that prior acts of racial discrimination, or at least inappropriate treatment, by the Law Society and its officers were evidence in support of his argument that the specified acts were acts of discrimination, or at least that an inference to this effect should be drawn.[26] This line of argument was open to him. But in order to establish it he needed to specify the evidence in relation to the prior events; why the respondents’ evidence in relation to these events, and court decisions in relation to them, should not be accepted; why on the basis of this evidence these events amounted to discrimination or at least inappropriate treatment; and why this showed that the specified acts the subject of these proceedings were discriminatory, contrary to the Law Society’s evidence and arguments. He did not do this, as the example in paragraph [33] shows. Therefore none of these references to past events provide an arguable ground of appeal.

[26]    See for example in the 5 May document, page 9 paragraph (hh)

35.Fifth, some of the grounds appear to seek to challenge earlier court decisions[27]; as in the original tribunal proceedings this is not a matter which can be pursued in these proceedings.

[27]    For example, see 5 May document, page 28, paragraph 11

36.Sixth, some grounds simply refer to a case and assert that the original tribunal proceeding was inconsistent with it without any elaboration;[28] this is not a proper ground of appeal.

Access to premises claim

[28]    See for example in the 5 May document, page 26, paragraph 7

37.In the access to premises claim Mr Ezekiel-Hart alleged that he attended the Law Society premises to sort out a problem he had encountered when trying to submit his 2016 online application for a practising certificate; he was at first assisted to do so and given access to an area behind reception; but was then told to leave. These basic facts seem to be accepted, but details of this event were subject to conflicting evidence between the parties and amongst respondent witnesses.[29]

[29]    Ezekiel-Hart v Reis [2017] ACAT 3 at [32]-[38], [56]-[57], [71]-[75]

38.The original tribunal accepted that whatever problem Mr Ezekiel-Hart had in submitting his online application, after his attendance at the premises of the Law Society he later did successfully submit an online application, and therefore there was no unfavourable treatment as required by section 8(2) of the Discrimination Act. Mr Ezekiel-Hart seems to have sought to challenge this finding, though he did not do so particularly clearly.[30] It would have been much more appropriate for Mr Ezekiel-Hart to simply say that his ground of appeal was that the original tribunal made an error in deciding at [72] that there was no unfavourable treatment, because exclusion from the premises of itself was unfavourable treatment; but for whatever reason Mr Ezekiel-Hart did not do this.

[30]    5 May document, page 8, para (cc); page 15, paragraphs (hhh) and (iii)

39.But even if more clearly and precisely raised, this would not have assisted him, since in the alternative, the original tribunal found that if there was unfavourable treatment by the respondents on 23 February 2016, it was not due to the appellant’s race or political convictions. Even if Mr Reis did direct the early exit of the appellant from the secure area of the Law Society’s premises, which was contested, there was no evidence that this was due to the appellant’s race or political conviction. Rather, Mr Reis gave oral evidence that he feared the appellant and on this basis did not want him in the secure areas of the Law Society’s premises.[31]

[31]    Ezekiel-Hart v Reis [2017] ACAT 3 at [73]-[75]

40.Insofar as there is a challenge to these findings, Mr Ezekiel-Hart provided no basis for overturning them.[32] Perhaps he thought that by addressing earlier acts he was doing so, but for the reasons given in paragraphs [31]-[34] above, his approach to this was inadequate to support any appeal.

[32]    5 May document, page 6, paragraphs (u), (v), (w)

41.In the original tribunal hearing the focus was on the denial of access on 23 February 2016. In the appeal Mr Ezekiel-Hart raised the more general denial of future access. Mr Ezekiel-Hart argued that Mr Reis admitted that he gave instructions to deny him future access. It is true that Mr Reis stated that Mr Ezekiel-Hart’s presence in the secure area “was in order on that occasion but in the future he should not be permitted in the secure area”.[33] Further as the original tribunal noted at [37] the Law Society’s bookkeeper gave evidence that when she told Mr Reis about Mr Ezekiel-Hart’s visit he responded: “That’s OK, but because the Law Society has a number of difficult issues with him at the moment he should not generally be allowed in the secure area.”

[33]    5 May document, 2017, page 4, paragraph (d); transcript of proceedings 22 November 2016, page 208

42.There may be a stronger case that this apparent denial of future access was unfavourable treatment. But it is not necessary to resolve this. As noted, the original tribunal held that, if there was unfavourable treatment by the respondents, there was no evidence that this was due to the appellant’s race or political convictions. This is also the case in relation to the denial of future access. Mr Reis stated that the reason for the direction about future access included “threats that had been made by Mr Ezekiel-Hart in writing to a variety of people including myself.”[34] This view was criticised by Mr Ezekiel-Hart as being over-reactive. It is noted that Mr Reis admitted that no threats had been made since 2013.[35] But there are no bases for overturning the finding of the original tribunal, or making a finding that the alleged denial of future access was due to the appellant’s race or political convictions.

Practising certificate claim

[34]    Transcript of proceedings, 22 November 2016, pages 208-209

[35]    Transcript of proceedings, 22 November 2016, pages 212-213

43.Mr Ezekiel-Hart made a complaint about the decision to refuse him a renewal of his practising certificate. On this issue the original tribunal accepted that there was unfavourable treatment, namely not approving the application. The disputed issue was whether it was because of the appellant’s race or political convictions. The original tribunal found that there was no evidence that race or political conviction were reasons for this adverse decision by the Law Society. Rather there was a coherent well-evidenced basis to the second respondent’s decision which was set out by the respondents in their evidence as summarised at [41]-[50] and [76] of the original tribunal decision.

44.Mr Ezekiel-Hart in effect challenged this finding. A key basis for doing so was that he was denied procedural fairness in the decision-making process; he stated that Mr Reis failed to enable him to comment on the grounds relied on to make the recommendation against him.[36]

[36]    5 May document, page 5, paragraph (p); page 9 paragraph (gg); page 22, paragraph 2(aa)

45.As the original tribunal noted, a key document at the meeting on 21 March 2016 where the relevant decision was made was a professional standards memorandum dated 17 March 2016, with seven attachments (Memorandum),[37] which was drafted by Mr Reis.

[37]    Respondents’ second tender bundle, tab 2; Ezekiel-Hart v Reis [2017] ACAT 3 at [59]

46.The information attached to the Memorandum included Mr Ezekiel-Hart’s application. He was asked to confirm some details in a letter from the Law Society dated 8 March 2016; these matters did not go to the substantive grounds of the refusal; he replied by email dated 9 March. It appears that Mr Ezekiel-Hart was given no opportunity to respond to the substantive grounds of the refusal.[38] This was arguably was a failure to accord him procedural fairness.[39]

Bankruptcy basis for refusal

[38]    Respondents’ second tender bundle

[39]    Kioa v West (1985) 159 CLR 550; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

47.One matter raised in the Memorandum was that Mr Ezekiel-Hart was an undischarged bankrupt. As set out at [6] of the original tribunal decision, the Law Society had a significant accumulated sum of costs orders concerning Mr Ezekiel-Hart, and filed for bankruptcy on the basis of these. He became bankrupt on 6 June 2013, and apparently remained so at the time of the original tribunal decision. [40]

[40]    National Personal Insolvency Index, extracted 4 November 2016, in the respondents’ tender bundle, tab 1

48.Mr Ezekiel-Hart suggested that it was indicated in the bankruptcy proceedings that this would not be taken into account in relation to decisions concerning his practising certificate.[41]

[41]    5 May document, page 6, paragraph (r); page 9, paragraph (ff); page 18, paragraph 2(l); page 27, paragraph 9; transcript of proceedings, 1 June 2017, pages 30-32

49.In the appellant’s supplementary note he referred to the decision in Ezekiel-Hart v Law Society (ACT) [2014] FCCA 400. This concerned three applications: an application for review of a decision dismissing an application to set aside a bankruptcy notice; an application for review of a decision to make a sequestration order by Registrar Wall; and an interim application for a stay. At [18] of the decision Neville J was outlining the complex procedural history of the matter, and stated in relation to the consideration by the court of preliminary matters on 21 June 2013, that the “first matter addressed on that occasion was confirmation that, in relation to the stay sought by Mr Ezekiel-Hart, Mr Hijazi (solicitor for the Respondents) confirmed that the Law Society of the ACT would take no action regarding the Applicant's practising certificate based on the sequestration order made by Registrar Wall.” There is a footnote to the relevant transcript, which was not provided. It appears from the comments at [21] of the decision that some form of stay was granted at the 21 June 2013 preliminary hearing. In the substantive proceedings however all the applications were dismissed, including the application for the stay. Although not completely clear, this suggests that some form of relevant undertaking was given at some time, but was superseded by a stay, the substantive application for which was in due course dismissed.

50.This seems to be supported by the evidence of Mr Reis in the original tribunal hearing where in cross-examination about the statement at [18] in Hart v Law Society (ACT) [2014] FCCA 400 he stated:

Mr Hijazi would’ve been acting on the society’s authority to say that but I think … that … was in the context of certain matters that were going on in the forum at that time but following – following the outcome of whatever this interlocutory or other proceeding was completed, we were entirely entitled to proceed. But I think this is addressing that at the time that the society would not be taking any – any action, that’s my recollection.[42]

[42]    Transcript of proceedings, 22 November 2016, page 279

51.The respondents submitted in their supplementary note that the allegation that anyone for the Law Society represented that if Mr Ezekiel-Hart were made bankrupt, that fact would not be used against him to deny him a practising certificate is false and wholly unsubstantiated.[43] As noted in paras [49] and [50] above it seems likely that in fact a relevant undertaking was given, but that it was superseded by later orders of the court, and that no undertaking or stay was in place at the time of the practising certificate decision.  

2013 complaint basis for refusal

[43]    Respondents’ supplementary note

52.A second matter put against Mr Ezekiel-Hart in the Memorandum were complaints made against him in a draft application for disciplinary action, apparently attached to a letter dated 19 August 2015, but dealing mainly with events in 2013 (2013 complaint).

53.The original tribunal found that the material before the Council did not include Mr Ezekiel-Hart’s response to the 2013 complaint against him. However the tribunal noted that the respondents contended that this was not essential to the decision-making of the Council given the objective nature of many of the matters before Council, for example that the appellant was bankrupt and had an unresolved complaint against him.[44] The respondents also argued that the complaint raised legitimate issues; had not been processed to conclusion; and that progressing the complaint was difficult because the appellant was overseas.[45] The original tribunal did not specifically accept these arguments, but rather decided the matter on the basis that there was no evidence of racial discrimination (see below at [59] and [60]).

[44]    Ezekiel-Hart v Reis [2017] ACAT 3 at [59]

[45]    Ezekiel-Hart v Reis [2017] ACAT 3 at [60]

54.Mr Ezekiel-Hart raised a range of matters in relation to how the 2013 complaint was considered in the practising certificate decision, in effect suggesting that the failure to include his response, or to allow him to respond, was a breach of the rules of procedural fairness.[46] He also raised the delay in pursuing the complaint.[47]

[46]    5 May document, page 6, paragraph (q); page 10, paragraph (mm); page 17, paragraph 2(h)

[47]    5 May document, page 11, paragraph (rr)

55.There seems to be a basis for Mr Ezekiel-Hart’s argument that he was not provided with procedural fairness. If the respondents’ contention is that the objective fact of the 2013 complaint, and the bankruptcy, did not require the provision of procedural fairness then it is unconvincing. It is true that under the Legal Profession Act 2006 (Legal Profession Act), section 11, a ‘suitability matter’ includes “whether the person is currently subject to an unresolved complaint, investigation, charge or order under” the Act (section 11(1)(f)) or is or has been insolvent (section 11(1)(b)). Section 44(4) provides that the Law Society must not renew a practising certificate if satisfied that the person is not a fit and proper person to continue to hold the certificate. Under section 36(2), in considering whether or not a person is a fit and proper person to hold a local practising certificate, the Law Society may take into account any suitability matter relating to the person. Therefore the Law Society has a discretion to find that the appellant is not a fit and proper person based on a complaint and bankruptcy;[48] but there is no obligation to do so. This is an issue in relation to which the views of Mr Ezekiel-Hart would clearly be relevant. This is the case notwithstanding that the complaint raised legitimate issues; had not been processed to conclusion; and that progressing the complaint was difficult because the appellant was overseas. For the Law Society to decide the renewal based on its own undetermined complaint without allowing Mr Ezekiel-Hart any opportunity to respond raises an issue as to whether procedural fairness was provided.[49]

Child support basis for refusal

[48]    As argued by Mr Ezekiel-Hart at transcript of proceedings, 1 June 2017, pages 33-34

[49]    Kioa v West (1985) 159 CLR 550; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

56.A third matter referred to in the Memorandum was a decision of the Administrative Appeals Tribunal in relation to matters concerning child support payments. Mr Ezekiel-Hart was also apparently given no opportunity to comment on this matter. Further he noted that the letter advising him of the decision dated 5 April 2016 did not mention this matter, suggesting it was not a basis for the decision, or alternatively that the letter was misleading.[50]

Failure to make reasonable offers

[50]    Respondents’ tender bundle, tab 14; transcript of proceedings, 1 June 2017, page 30

57.Mr Ezekiel-Hart also argued that the Law Society made reasonable offers to other lawyers to continue their practice, but no alternative options were available to him.[51] Apparently, Mr Ezekiel-Hart relied on a decision of the tribunal in Council of the Law Society v Legal Practitioner 2[52] in this regard,[53] and also other cases.[54] He referred to section 47 of the Legal Profession Act which allows for conditions to be imposed on a practising certificate, an option which was apparently never considered for him.[55] He also referred to section 69(1) which provides that if a local legal practitioner has been charged with a serious offence but the charge has not been decided, the relevant council may amend the conditions of the practitioner’s local practising certificate or impose further conditions on the practitioner’s local practising certificate; he argued that he had been relegated behind a person charged with a serious criminal offence.[56] He argued more broadly that in all his dealings with the Law Society “no mitigation option … was ever considered”.[57]

Relevance of procedural fairness issues to the appeal

[51]    5 May document, page 5, paragraph (l); page 9, paragraph (ii); page 17, paragraphs 2(i); page 18, paragraphs 2(j), (k); page 22, paragraph 2(z); page 25, paragraph 6; transcript of proceedings, 1 June 2017, page 12

[52] [2016] ACAT 120

[53]    Transcript of proceedings, 22 November 2016, page 264 and ff

[54]    Transcript of proceedings, 22 November 2016, page 270 and ff

[55]    Transcript of proceedings, 1 June 2017, page 20

[56]    Transcript of proceedings, 1 June 2017, page 38

[57]    Transcript of proceedings, 1 June 2017, page 8

58.There are therefore a number of issues raised by Mr Ezekiel-Hart in relation to the process in making the decision concerning the practising certificate, some of which, in particular the failure to allow Mr Ezekiel-Hart to respond to the grounds of the decision, suggest it is arguable that he was not accorded procedural fairness in relation to this decision. He submitted that “the danger of the decision to the members of ethnic background of the Appellant is that it goes without saying that this matter with precludes natural justice and procedural fairness is one of public interest.”[58]

[58]    5 May document, pages 10-11, paragraph (oo); page 11, paragraph (pp); page 14, paragraphs (aaa) and (ccc)

59.But this is not enough to succeed in this appeal. First, Mr Ezekiel-Hart must show that that the practising certificate decision was the result of discrimination on the grounds of race or political conviction. The original tribunal found it was not. It stated at [81]:

The Tribunal finds that there were coherent well-evidenced reasons presented by the respondent (see paragraphs 58 to 62) about why the Law Society did not approve the applicant’s application, had acted in certain ways, for example, made the 2013 complaint against the applicant and not finalised it, and pursued his bankruptcy. It is true that the 2013 complaint and the bankruptcy involved some exercise of discretion by the second respondent. However this does not mean the second respondent was discriminatory. If the decision not to approve the applicant’s 2016 application for a practising certificate is an improper decision because it in part relies on the 2013 complaint against him, this does not mean the decision is discriminatory.

60.Mr Ezekiel-Hart argued that not only were there failures to accord him procedural fairness, but that these were motivated by racial or political conviction discrimination.[59] But the original tribunal found there was no evidence to support this contention. No convincing basis for overturning this view was presented in this appeal tribunal.

[59]    Transcript of proceedings, 1 June 2017, pages 22-23

61.Second, Mr Ezekiel-Hart could have pursued an appeal in relation to these procedural fairness matters under section 81 of the Legal Profession Act, but did not do so. The original tribunal decision at [81] also drew attention to the fact that Neville J had pointed out in prior proceedings where race discrimination was also raised that the appropriate course if he regarded the decision as inappropriate and/or procedurally unfair was for Mr Ezekiel-Hart to appeal the decision in the ACT Supreme Court under section 81 of the Legal Profession Act.[60] The original tribunal noted at [82] that whatever the strengths or weaknesses of a section 81 review, this is not what was before it.

[60]    Neville J, Ezekiel-Hart v The Law Society of the ACT [2014] FCCA 658 at [90]

62.In this appeal, the respondents also argued that that this would have been the appropriate response.[61]

[61]    Transcript of proceedings, 1 June 2017, page 48

63.Even if the practising certificate decision were held invalid because of a breach of procedural fairness obligations, this would not of itself support the racial discrimination complaint, or provide Mr Ezekiel-Hart with a practising certificate, though it would generally require the Law Society to deal with his application again properly.

64.Mr Ezekiel-Hart suggested he had sought a reconsideration of the decision.[62] He provided no evidence of any such request. The Law Society indicated it had no record of having received a written request from Mr Ezekiel-Hart on or around 9 December 2016 (or at any other time for that matter) to reconsider its decision.

[62]    Transcript of proceedings 1 June 2017, page 8; appellant’s supplementary note, page 1

65.Given the possible errors in the decision, the Law Society could have reconsidered the decision, or asked Mr Ezekiel-Hart to reapply, and provided appropriate procedural fairness in this process. Notwithstanding the issues, it apparently chose not do so.

Other issues raised

66.On the basis of the evidence discussed at [66], the original tribunal found at [87] that the events surrounding the access to premises complaint and practising certificate complaint, the 2013 complaint and the bankruptcy of Mr Ezekiel-Hart were not pursued because of Mr Ezekiel-Hart’s complaint to the government and proceedings in the courts. There was no basis therefore for a claim of victimisation under section 68 of the Discrimination Act. No ground was provided for overturing this finding. In relation to the allegations of vilification, the original tribunal preferred the evidence of the respondents (at [88]). There was no basis therefore for a claim of vilification under section 67A of the Discrimination Act. No ground was provided for overturing this finding.

67.Mr Ezekiel-Hart raised the failure of the original tribunal to obtain a transcript.[63] This is not a basis for overturning the original decision.

[63]    5 May document, page 8, paragraph (dd); page 24, paragraph 4; page 25, paragraph 5; page 26, paragraph 8; page 27, paragraph 9

68.He also raised a breach of the rules of natural justice in the original hearing.[64] This is a general allegation with no reference to any specific event, and as such cannot provide a basis for an appeal. He also raised the fact that the President of the Tribunal signed the original decision on behalf of the senior member who heard and determined the matter.[65] This is allowed by section 62 of the ACAT Act. It is no basis for overturning the original decision.

[64]    5 May document, page 24, paragraph 4

[65]    5 May document, page 28, paragraph 12(d)

69.In the hearing Mr Ezekiel-Hart also raised section 117 of the Constitution, which is clearly not relevant to his claim.[66]

Conclusion

[66]    Transcript of proceedings, 1 June 2017, pages 18-20

70.Despite raising a range of issues, Mr Ezekiel-Hart has not shown an error of fact or law that justifies the original tribunal decision being varied or reversed.

………………………………..

President G Neate AM

Delivered for and on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER:	AA 5/2017
PARTIES, APPELLANT:	Emmanuel Ezekiel-Hart
PARTIES, FIRST RESPONDENT:	Robert Reis
PARTIES, SECOND RESPONDENT:	Law Society of the ACT
COUNSEL APPEARING, APPELLANT	N/A
COUNSEL APPEARING, RESPONDENTS	Ms Power
SOLICITORS FOR APPELLANT	N/A
SOLICITORS FOR RESPONDENTS	Phelps Reid Lawyers
TRIBUNAL MEMBERS:	Acting Presidential Member R Orr QC
DATES OF HEARING:	1 June 2017