Ezekiel-Hart v Reis (No 2)
[2019] ACTSC 192
•25 July 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ezekiel-Hart v Reis (No 2) |
Citation: | [2019] ACTSC 192 |
Hearing Dates: | 8, 9, 10 July 2019 |
DecisionDate: | 25 July 2019 |
Before: | Crowe AJ |
Decision: | See [118] |
Catchwords: | PRACTICE AND PROCEDURE – SUMMARY JUDGMENT – Whether defamation claim made in time and maintainable – whether Human Rights Act 2004 (ACT) claim made in time and maintainable – where the defamation claim is statute-barred – where the Human Rights Act claim is unsubstantiated – where good defences are available TORT – DEFAMATION – Whether memorandum attaching draft application circulated to Council of the Law Society of the ACT contained defamatory material – whether the ACT Law Society is an “instrumentality” of the ACT Government – where good defences are available – where the claim is statute-barred HUMAN RIGHTS – Whether the defendants’ conduct breached ss 8, 10, 12 and 17 of the Human Rights Act – where the evidence relied-upon by the plaintiff fails to substantiate the claim |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 135, 137, 139A Court Procedure Rules 2006 (ACT) rr 406, 407, 411, 425, 1147, 1521 Parliamentary Privileges Act 1987 (Cth) s 16 |
Cases Cited: | Barrett v TCN Channel Nine P/L [2017] NSWCA 304; 96 NSWLR 478 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Sullivan v Moody [2001] HCA 59; 207 CLR 562 |
Parties: | Emmanuel Tam Ezekiel-Hart (Plaintiff) Robert Reis (First Defendant) Council of the Law Society of the Australian Capital Territory (Second Defendant) Australian Capital Territory (Third Defendant) |
Representation: | Counsel Self-represented (Plaintiff) T Power (First and Second Defendant) B Buckland (Third Defendant) |
| Solicitors Self-represented (Plaintiff) Phelps Reid Foster Johnson (First and Second Defendant) ACT Government Solicitor (Third Defendant) | |
File Number: | SC 433 of 2017 |
Crowe AJ
On 19 February 2019 Associate Justice McWilliam ordered that matters SC 433/17 and SCA 75/17 be heard concurrently. The former is a claim for damages and other relief based on alleged defamation of the plaintiff by the first and second defendants and breaches of his rights pursuant to the Human Rights Act 2004 (ACT) (HRA). In these proceedings the plaintiff also claims damages and other relief for negligence and breaches under the HRA against the third defendant.
Matter SCA 75/17 is an application for leave to appeal from the decision of an Acting Presidential Member of the ACT Civil and Administrative Tribunal (ACAT) dismissing an appeal from a Senior Member of the Tribunal. The Senior Member dismissed the plaintiff’s claim for relief against the first and second defendants under the Discrimination Act 1991 (ACT).
After hearing both matters I reserved my decision in each. These are my reasons for decision in SC 433/17. I will deliver my reasons for decision and judgement in SCA 75/17 separately.
The Plaintiff’s Claim
The plaintiff’s claim was commenced by Originating Claim and Statement of Claim filed on 6 November 2017. That Statement of Claim was the subject of applications by the then first, second and fourth defendants seeking summary judgement on the basis that the proceedings disclosed no reasonable cause of action and were otherwise vexatious. The third defendant (the Territory) also made an application seeking to set aside the statement of claim on the basis that it disclosed no reasonable cause of action.
Those applications were heard by McWilliam AsJ. Her Honour delivered her decision with respect to the above applications on 19 September 2018 (see Ezekiel-Hart v Reis [2018] ACTSC 264). She reviewed in some detail the claims sought to be pleaded by the plaintiff and concluded that there was a potential cause of action in defamation against the first and second defendants arising from the publication of a memorandum to certain members of the Council of the second defendant in March 2016. Her Honour also concluded that there was a potential claim in defamation based upon oral statements made in 2016 or in documents prior to 2013 (see [37] of her Honour’s decision).
Her Honour also considered that there may be an arguable claim under s 40C of the HRA against the first and second defendants arising from the allegations giving rise to the claim in defamation. However, her Honour thought that the claim as pleaded was too wide and that leave to re-plead should be limited by reference to certain sections of the HRA.
Her Honour saw no viable claim against the then fourth defendant. She entered judgement for that defendant (see [68] of her Honour’s decision).
In relation to the claim against the Territory, her Honour reasoned that the plaintiff raised in his pleadings an arguable claim in negligence based upon the failure of the Territory to exercise control over the second defendant which resulted in the alleged defamation and breaches of the HRA in March 2016 (see [80] of her Honour’s decision). Although her Honour found it difficult to discern whether the claim intended to assert a separate cause of action against the Territory under the HRA, she considered that the plaintiff should be given the same opportunity to plead such a claim against the Territory as she proposed to give him in relation to the first and second defendants (see [83]).
Her Honour found that the pleading overall was defective. In the context of her analysis she made the following orders:
(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) Judgement is entered for the fourth defendant.
Following her Honour’s decision, on 3 December 2018 the plaintiff filed an Amended Originating Claim and Statement of Claim. The latter consisted of 67 pages containing 142 paragraphs. It conspicuously failed to plead the facts said to give rise to each cause of action in the manner required by the rules (see rr 406, 407 and 411 of the Court Procedure Rules 2006 (ACT) (the Rules)). It also appeared to plead matters going beyond the leave granted by her Honour in Order (2) above.
Hampered as they were by the defects in the plaintiff’s pleading, the first and second defendants and the Territory filed Defences to the Amended Statement of Claim. On 18 April 2019, the first and second defendants filed an Application in Proceeding seeking the following relief:
1. Order pursuant to rule 425 of the Court Procedure Rules 2006 (ACT), striking out paragraphs 31–59 and 136–139 of the amended statement of claim.
2. Order dismissing the plaintiff’s defamation claim against the first and second defendants on the basis that it is out of time and not maintainable pursuant to s 21B(1) of the Limitation Act 1985 (ACT)
3. Order dismissing the plaintiff’s claim under the Human Rights Act 2004 (ACT) against the first and second defendants on the basis that it is out of time and not maintainable pursuant to s 40C(3) of the Human Rights Act.
4. Further and in the alternative to prayers 1 and 3, orders, pursuant to rules 425 and 1147 of the Court Procedure Rules 2006 (ACT), striking out and summarily dismissing the whole of the plaintiff’s claim against the first and second defendants.
5. Further and in the alternative to prayers 2-4, an order pursuant to rule 1521, that a preliminary hearing be held for the separate determination of the following questions:
Question 1
“In relation to the plaintiff’s claim in defamation against the first and second defendants, should the court extend time pursuant to s 21B(2) of the Limitation Act 1985 (ACT), or should the court dismiss that claim on the basis that it is out of time?”
Question 2
“In relation to the plaintiff’s claim against the first and second defendants under the Human Rights Act 2004 (ACT), should the court extend time pursuant to s 40C(3) of the Human Rights Act, or should the court dismiss that claim on the basis that it is out of time?”
Question 3
If, following the determination of Questions 1 and 2, the court grants the plaintiff an extension of time in relation to either or both defamation and Human Rights Act claims, then the first and second defendants seek the separate preliminary determination of the following further question:
“In relation to the whole of the plaintiff’s claims against the first and second defendants, are the first and second defendants immune from suit pursuant to section 468 and 587A of the Legal Profession Act 2006 (ACT)?”
The matter was listed for hearing on 8 July 2019. The Application in Proceeding was returnable on that date.
At the commencement of the hearing counsel for the first and second defendants sought to proceed with the application prior to the commencement of the substantive hearing. After hearing submissions from the plaintiff and counsel for the defendants I decided to hear and determine the objections to the Amended Statement of Claim as a preliminary matter, and then to embark on the substantive hearing. I ruled that a number of paragraphs from the Amended Statement of Claim were to be struck-out, including: [31]–[59], [80], [85], [104], [110], [111], [112(a)–(b)], [122(b)], [123], [124(a)–(c)], and [135]–[140].
Paragraphs [31] to [54], and [56] of the Amended Statement of Claim sought to plead malice. Although they were seriously defective, in the interests of avoiding delay, counsel for the defendants consented to the plaintiff re-pleading them by way of reply. As will be seen below, the defences pleaded by the first and second defendants made it appropriate to give the plaintiff the opportunity to rely on the allegation of malice.
The remaining parts of the amended statement of claim contained prolix, lengthy and irrelevant assertions. Counsel for the defendants took the practical approach of emphasising their general objection to the pleading on those grounds without taking line item objections to each paragraph. In that context I understand the plaintiff’s claim against each defendant to be as summarised below.
Claim against First and Second Defendants
The plaintiff says he is a qualified lawyer and was admitted to the Roll of the ACT Supreme Court in 2003. Thereafter, for some years, he practised as a solicitor in the Territory. The first defendant was an employee of the second defendant. At some time prior to 21 March 2016 the plaintiff applied to the second defendant for a practising certificate. In response to that application the first defendant is said to have prepared a memorandum which contained the following words:
(a) “The practitioner in a grossly offensive and intemperate manner threatened the President and Members of Council with violent retribution.”
(b) “The Practitioner threatened Mr Lucas, a fellow Practitioner, with lethal violence.”
The plaintiff alleged that the first defendant published the memorandum to those present at a council meeting held on 21 March 2016 to consider his application for a practising certificate, amongst other matters. He alleged that the words quoted at [16] above carried the following imputations against him:
That the plaintiff:
(a)was an unrestrained person of violent character
(b)was a self-indulgent terrorist in contemporary sense
(c)was a killer ready to kill anyone at any opportunity
(d)was a murderer and ready to commit murder without provocation
(e)was a deadly and dangerous person to associate with
(f)was a person of bad character not worthy of dealing with in society;
(g)was a person who should be in jail and not associate with good meaning people
(h)lacked moral probity.
As a result of the publication of the memorandum as alleged, the plaintiff says that he was not issued with a practising certificate and has, as a result, suffered damage to his reputation, faced loss of employment and the loss of various business and professional opportunities, which has led to significant financial detriment.
In addition to the pleading in defamation, the plaintiff also relied upon alleged breaches of the provisions of the HRA, which the Associate Justice had specified in order (2) set out in paragraph [9] above. The conduct which was said to have led to the breaches consisted of: denying the plaintiff access to the premises occupied by the second defendant; the first defendant providing the memorandum to the Council in March 2016; and, the decision of the Council on 21 March 2016 to refuse the plaintiff’s application for a practising certificate.
Claim against Third Defendant
The plaintiff’s claim against the third defendant, in summary, is that, having put the Territory on notice that the second defendant was victimising him, or discriminating against him, the Territory negligently failed to exercise its power of control over the second defendant to prevent that conduct from continuing. The plaintiff alleges, having regard to various provisions of the Legal Profession Act 2006 (ACT) (LPA), that the second defendant should be considered as an “instrumentality” of the Territory. The plaintiff claims that the failure of the Territory to act led to the Council making the decision of 21 March 2016 to refuse his application for a practising certificate, resulting in the losses and damages he claims to have suffered.
The plaintiff also asserted that the conduct of the third defendant constituted breaches of the HRA.
The Defences
First and Second Defendants
By their substituted Amended Defence filed on 14 February 2019 these defendants pleaded in general terms as follows:
3. Save for the limited admissions identified below, and to the extent that the First and Second Defendants are able to comprehend and respond to the Amended Statement of Claim, the First and Second Defendants deny all of the allegations against them contained therein.
Thereafter the first and second defendants admit that the plaintiff was admitted as a barrister and solicitor of the Supreme Court of the ACT on 20 February 2003 and admit that he held a practising certificate until 30 June 2013. They admit that on 23 February 2016 he applied for an unrestricted practising certificate as an in-house lawyer and that his application was declined by the second defendant.
In relation to the claim for defamation, the first defendant said that he caused a confidential professional standards memorandum to be circulated to the second defendant on or about 17 March 2016. The attachments to that memorandum included a draft application for disciplinary action pursuant to s 419 of the LPA, which contained numerous allegations of professional misconduct against the plaintiff and sought an order recommending the removal of his name from the Roll. The memorandum and attachments were considered by the second defendant in confidential discussions at its council meeting of 21 March 2016.
Both defendants claim that the memorandum was circulated on occasion of absolute privilege, or alternatively qualified privilege, and that the defences of substantial truth and/or honest opinion apply.
They also plead reliance on immunities under ss 468 and 587A of the LPA.
Additionally, the first and second defendants plead reliance on the time bars pursuant to s 21B(1) of the Limitation Act 1985 (ACT) (Limitation Act) and s 40C(3) of the HRA.
Third Defendant
The Territory admitted some of the non-controversial factual allegations in the amended statement of claim but denied that it had control over the activities of the second defendant such that it could be said to have been its “instrumentality”. It effectively denied that it owed the plaintiff a duty of care and that it had breached that duty.
The Territory denied any breach of the HRA as alleged by the plaintiff.
The Hearing
As noted above, the first and second defendants sought summary relief in their Application in Proceeding prior to commencing the substantive hearing. I ruled against that submission. The defendants requested me to hear the application and the plaintiff’s substantive claim concurrently so that, should the evidence permit, judgement could be entered in favour of the first and second defendants summarily pursuant to their application, rather than on the basis of the hearing of the substantive issues. The hearing proceeded on this basis.
One other preliminary matter arose. On the face of the pleadings, the limitation defences had to succeed. Consequently, at the outset of the hearing, I gave the plaintiff the opportunity to give evidence in support of an application to extend the time in which to commence proceedings under both sub-s 21B(2) of the Limitation Act and sub-s 40C(3) of the HRA. The plaintiff took up that offer and after giving evidence submissions were made by all parties as to whether time should be extended. I reserved my decision on that point, with the matter then proceeding on the basis described at [30] above.
The Evidence
The evidence proceeded largely by way of affidavit. Some oral evidence was given by the plaintiff in support of his application to extend the limitation periods (see below) and in support of his substantive case. He was cross-examined by counsel for the third defendant in relation to the limitation period issue. He was not cross-examined on his evidence in the substantive hearing. In relation to the evidence of the first and second defendants, the parties agreed to rely upon the transcript of the evidence of the witnesses who had given evidence in the ACAT proceedings before Senior Member Beacroft on 21 and 22 November 2016. Mr Ezekiel-Hart had, on that occasion, cross-examined those witnesses, including the first defendant.
The evidence relied upon by the plaintiff consisted of three affidavits filed by the plaintiff: an affidavit affirmed on 21 March 2019 (marked Exhibit P1); an affidavit affirmed on 24 May 2019 (marked Exhibit P2); and, an affidavit affirmed 4 July 2019 (marked Exhibit P3).
The evidence relied upon by the first and second defendants was: the affidavit of Michael James Phelps, sworn 20 November 2017 (marked Exhibit D1); the affidavit of Robert Anthony Reis, sworn 18 April 2019 (marked Exhibit D2); the affidavit of Kathryn Riley, sworn 12 June 2019 (marked Exhibit D3); and a copy of the Constitution of the Law Society of the ACT (marked Exhibit D6).
Finally, the evidence tendered by the Territory was: the affidavit of John Gray, affirmed 18 April 2019 (marked Exhibit D4); the affidavit of Amy Sydney, affirmed 9 May 2019 (marked Exhibit D5); and, a letter from the Attorney-General to Ms O’Hara dated 23 November 2015 (marked Exhibit D7).
The Territory raised an issue relating to the application of s 16 of the Parliamentary Privileges Act 1987 (Cth) (Parliamentary Privileges Act) to certain documents which the plaintiff wished to rely upon.[1] After considering the affidavit evidence of John Gray on the voir dire and hearing the submissions of counsel for the Territory and the plaintiff, I ruled that certain documents annexed to the plaintiff’s affidavit were inadmissible. These documents related to a request by the plaintiff in May 2014 for the ACT Legislative Assembly to take certain action arising from complaints from himself and another person.
Submissions
The Plaintiff
The parties filed written submissions and also made oral submissions at the hearing. I have read the submissions of the plaintiff dated 24 May 2019 and, by way of reply, dated 4 July 2019. Having regard to the provisions of sub-s 16(3) of the Parliamentary Privileges Act I have disregarded any submissions relating to the documents ruled inadmissible pursuant to that Act.
The plaintiff’s submissions are at times difficult to follow. The plaintiff submits that because the first and second defendants did not traverse his primary affidavit (Exhibit P1) the court should accept as accurate everything contained in the 1,128 paragraphs of that affidavit. The difficulty with that submission is that the affidavit does not contain a recital of evidence in a clear and admissible form. Rather, it contains a mix of assertions, argument, submissions, extracts from transcripts and quotes from authorities. Some of the assertions made by the plaintiff are unnecessary and scandalous and should not have been included in his affidavit
While the plaintiff is self-represented, he is a trained lawyer. However, he has had some difficulty in distinguishing between matters of fact and argument in both his affidavits and submissions. I have done the best I can to disentangle fact from argument, but this has at times been extremely difficult.
Suffice to say that the plaintiff submits that the description of him in the document attached to the memorandum and quoted at [16] above carries the imputations pleaded in paragraph 12 of the amended statement of claim (see [17]), and that the publication of that material contributed to the second defendant refusing his application. He seeks damages by way of vindication, and also for the financial losses he has suffered as a consequence of those events.
The plaintiff also submits that the conduct of the first defendant in excluding him from the second defendant’s premises in February 2016 and the events leading to the refusal of his practising certificate in March 2016 occurred in breach of the HRA. As I understood the submission, the plaintiff contends that the defendants treated him the way they did because of the colour of his skin, and/or because of his Nigerian heritage, and/or because of his political position. Fundamental to this submission is the plaintiff’s proposition that the second defendant had treated some white solicitors who had been the subject of disciplinary proceedings far less harshly than he had been treated.
In relation to the Territory, the plaintiff argues that in circumstances where he had raised with it allegations of unfair treatment based on his race, that the third defendant owed him a duty of care to exercise its power under s 466 of the LPA to request a report. He points to a letter dated 23 November 2015 in which the Minister requested such a report including as to a particular matter which had been the subject of ACAT proceedings. He argued that had such a request been made of the second defendant, including a specific request in relation to his matter, this would have acted as a “deterrent” which would have prevented the defamatory publication and practising certificate refusal in March 2016. In these circumstances the failure to exercise that power was a breach of the duty of care which caused him loss and damage.
The plaintiff also submits that the Territory had breached the HRA by not acting in accordance with s 466 of the LPA. As I understand the submission, the plaintiff argues that he was treated with distinction or was discriminated against contrary to s 8(2) (or perhaps s 8(3)) of the HRA. This relies particularly on the contrast between the way the Minister dealt with the matter of Byrne v Council of the Law Society of the ACT (Occupational Discipline) [2015] ACAT 19 (Byrne) (which was the matter referred to in the 23 November 2015 letter) and the way he dealt with the plaintiff’s matter.
The plaintiff also made very lengthy submissions both in writing and orally alleging malice on the part of the first and second defendants.
The First and Second Defendants
These defendants take as their starting point their reliance on r 1147(2) of the Rules which permits the Court to enter summary judgement for a defendant if it finds that the plaintiff’s claim is frivolous or vexatious, that there is a good defence to it on the merits or that the proceeding should be disposed of summarily.
They then point to the defects in the Amended Statement of Claim and the long history of failed claims by the plaintiff against the second defendant and its employees.
The defendants then argue that they have good defences on the merits having regard to:
(1)The time bars in relation to the action in defamation and under the HRA;
(2)The statutory immunity under two sections of the LPA;
(3)The contention that in the circumstances where the first defendant provided the memorandum only to officers of the second defendant there was no publication. The submission was that the document was only an “internal circulation” of a confidential document;
(4)The defence of truth, under s 135 of the Civil Law (Wrongs) Act 2002 (ACT) (CL(W)A) and under the common law;
(5)The defence of absolute privilege, under s 137 CL(W)A, and at common law; and,
(6)The defence of qualified privilege, under s 139A CL(W)A, and at common law.
There were a couple of other defamation defences referred to in the written submissions of the first and second defendants, however I understood from the oral submissions that these were not pressed.
The defendants argue that if the summary judgement application is unsuccessful, in any event, the plaintiff’s claim must fail on the merits having regard to the state of the evidence, and the strength of the defences.
The Third Defendant
The Territory submits that although the LPA requires the relevant Minister to be notified of certain matters, and there are some provisions which necessitate the Minister’s consent before certain actions are taken, overall there is nothing indicating that the Territory has any power to control the conduct of the second defendant in carrying out its statutory functions. The Law Society is an independent corporate entity created by s 576 of the LPA. There is no basis in statute, or otherwise, for the assertion that the second defendant was the “instrumentality” of the Territory.
In the context of the matters set out in [50], the Territory submits there was no basis for alleging that the Territory owed the plaintiff a duty of care to take action under s 466 of the LPA. Even if it did owe such a duty, an examination of the chronology of events in late 2015 and early 2016 demonstrate that any letter similar to the 23 November 2015 letter would not have been sent early enough to have made a difference to the events in March 2016. Finally, it was argued that the plaintiff had led no evidence to establish actual economic loss.
As to the HRA case, the Territory points out that the Byrne matter very much turned on its own circumstances which were very different from those of the plaintiff. Once that is understood there is simply no basis to find that any action taken by the Minister in late 2015 or early 2016 could amount to discrimination of the plaintiff which is an essential element before a breach of either sub-ss 8(2) or (3) of the HRA can be found.
Fact Finding
The facts in relation to the defamation claim are of narrow compass. There is no issue that the first defendant did compile the memorandum for consideration of the second defendant’s council meeting planned for 21 March 2016.
The memorandum attached a draft application for disciplinary action against the plaintiff. The evidence establishes that the application was likely drafted by Mr N Beaumont SC in 2015.[2] It is notable that the Council resolved in August 2015 to proceed with the application. However, it was noted in the memorandum that the application was not filed at that time because the second defendant was unaware of the plaintiff’s whereabouts.
It was entirely appropriate for the draft application to be placed before the Council in relation to an application for practising certificate having regard to s 11(1)(f) of the LPA. It was attached to the memorandum and provided to Council members by the first defendant in the course of him carrying out his duties as the second defendant’s Professional Standards Director.
The draft application contained the following grounds of complaint:
Threatening and offensive letter to President and Members of the Council of the Society of 1 December 2012
1.35 Following the striking out by Penfold J of the practitioners appeal on 26 October 2012…and the commencement by the Practitioner of the third set of proceedings in the Federal Court on 26 November 2012…the Society and the practitioner corresponded concerning, relevantly, the practicing certificate as held by the Practitioner.
1.36 During the course of that correspondence, on 1 December 2012, the Practitioner wrote a letter to the President and Members of the Council of the Society which included the following passage:
“In my resolve, while the matter that I seek justice is before the Federal Court and remain on foot, any person or group of person acting as one block or in concert that threaten my certificate again in any manner whatsoever arising from the acts and consequences of the 2008 conduct of Mr Reis that cost my job and business at the same time, I am ready to give my all to sacrifice for the court of justice and for betterment of future generation. And I will not take first the suffering before seeking justice in Court of law to redeem myself.
Whatever happen to me locally or internationally those that love me shall respond accordingly upon all persons that continue to hate me as a member of this our ACT Law Society for no cause other than that I seek the truth, justice and equity for all. It does not suffice to exclude your responsibility if I receive harm in my ancestral home in course of any visit.
I shall not suffer again before waiting for justice from the Court, immediately you act in any form that affect my capacity to feed myself and my little children within that same week I will respond immediately to all those involved whether they be on Earth or in the Moon. The oppression and restlessness is over from now on. I shall walk and work as free as a freeman not as subservient to anyone.
I warn and strongly so, any attempt on my certificate before the determination of the matter in the Federal Court of Australia will not wait for the rule of law again. The threat that I had at my home in October 2012 I hold Mr Reis and headship of the law Society responsible. As you will note I wrote for peace you sent me letter through Mr King rejecting all offer to resolve the matter which led to my application before the Federal Court.
However, if do anything wrong that befit taking of my certificate I will always respect the decision to take my certificate but the wrong must be other than in relation to or consequence of the matter between me and the Society which is before the Federal Court waiting determination. I have gone to Court because first of all I believe in the Court and civility and abhor violence against anyone but will stand from now on to defence myself against any unfairness or inequity if the chase for my certificate does not end for good when I actually act contrary to any law under the Commonwealth.”
1.37 By that letter, and in particular by the statements as quotes, the Practitioner in a grossly offensive and imperate manner threatened the President and Members of the Council with violent retribution in the event that the President and Members of the Council decided (in the course of their statutory obligations which they were obliged to discharge) to cancel or suspend the Practitioner’s practicing certificate.
Improper threat of violence from Practitioner to Mr Ric Lucas
1.38 In 2013, Mr Ric Lucas, solicitor and principal of Colquhoun Murphy, had been retained to act on behalf of Mr Robert Reis, the Professional Standards Director of the Society, in relation to a defamation claim by Mr Reis against the Practitioner.
1.39 On 4 June 2013, Mr Lucas sent an email to the Practitioner, pressing an earlier request that the Practitioner advise him as to the name of his insurer.
1.40 Also, on 4 June 2013, the Practitioner responded to this email from Mr Lucas by replying with an email to Mr Lucas in which he stated in part (omitting some intervening paragraphs):
“I will respectfully advise you not to underestimate what I can do. Yes, I have been very kind, tolerant and humble, but let me warn you my current state is fire for fire fire.
The fire fire is not a mistake it is the extent of reaction for any silly behaviour aimed at my livelihood…
Do not tempt me, leave me to remain kind and humble as I am because Canberra will not contain us together if you live [sc. Leave] the civility of the avenue of the Court to hurt my business for the benefit of your client.
Wishing you a pleasant week, and finally advising you not to underestimate my gentle nature. The court is the avenue for a wise person except where the Court turned instrument of oppression.”
1.41 By email of 11 June 2013, Mr Lucas responded to the Practitioner and stated in relevant part:
“I regard the threats you made in your email of 4 June as improper. No solicitor should behave in that manner in correspondence with a colleague.”
1.42 In the email of 4 June 2013, as quoted in part above, the Practitioner threatened Mr Lucas, a fellow Practitioner, with lethal violence in the event that Mr Lucas did nothing more than continue, quite properly, to take steps to contact the practitioner’s relevant insurer. That conduct would additionally constitute a serious criminal contempt of court, being an attempt to deter a legal representative of the opposing party, Mr Reis, from continuing to pursue necessary steps in order to bring defamation proceedings in court against the Practitioner.
[Emphasis added.]
The memorandum was made available on a confidential basis to council members and relevant employees of the second defendant.[3]
According to the Minute of the council meeting, the first defendant spoke at the meeting. He is recorded as having said that the application had not been filed because the Society was unaware of the plaintiff’s whereabouts, other than that he was overseas.[4] He said that it was only in February 2016 that the Society had become aware of his return to Australia. There is no evidence that the first defendant uttered words that could be considered defamatory of the plaintiff.
The council meeting dealt with all confidential matters in the absence of observers.[5]
Despite numerous, indeed excessive, assertions of malice and bad faith made by the plaintiff against the first defendant, I have not been taken to any evidence to sustain these allegations. I have read the cross-examination of the first defendant in the ACAT proceedings. The plaintiff has relied on various parts of that cross-examination to support his allegation of malice. I am unable see any proper basis for inferring malice from that evidence,[6] or indeed any of the evidence relating to the conduct of the first defendant.
In relation to the HRA claim, I find that the provision of the memorandum to the Council and the decision to refuse the plaintiff’s application for a practising certificate occurred in the ordinary course of the second defendant carrying out its statutory functions. Although there may be an issue as to procedural fairness, there is no reasonable basis in the evidence for inferring that the conduct of the first and second defendants was based upon the plaintiff’s race or his political convictions.
As to the “exclusion” of the plaintiff from the second defendant’s premises on 23 February 2016, conflicting evidence has been provided. According to the plaintiff’s version, after he had been permitted to enter into the secure area of the Law Society office so that Ms Kathleen Louis could assist him with his application form, he overheard a heated exchange between Ms Louis and the first defendant in which the latter said “Tell him to leave here. Whatever he want to do, he should go and do it outside, not here”.[7]
Ms Louis said that she had a conversation with Mr Reis about not permitting the plaintiff to enter the secure area, but that this conversation occurred after the plaintiff had left that part of the premises.[8] Although it was not specifically put to her, it is apparent from the content of her evidence that she would not have agreed with the proposition that she had told the plaintiff to leave while he was still in the secure area after having been instructed to do so by the first defendant.
The evidence of the first defendant was broadly consistent with that of Ms Louis.[9] He testified that the reason he had requested that Ms Louis should not in future allow the plaintiff in the secure area was because of threats which the plaintiff had made in the past to various persons, including himself.
It is not necessary for the purposes of this case to resolve the inconsistency in timing in this evidence. What is apparent in my view is that the “exclusion” of the plaintiff from the secure area of the Law Society office occurred because of the long and difficult relationship between the plaintiff and the first and second defendants, and not because of his race or political convictions.
The plaintiff’s case against the third defendant, after exclusion of the evidence under the Parliamentary Privilege Act, turned on the content of the 23 November 2015 letter from the ACT Attorney-General to the second defendant.[10] The circumstances leading to the sending of that letter were explained in the affidavit of Ms Amy Sydney. She was an officer of the ACT Justice and Community Safety Directorate, who in October 2005 had been given the task of preparing a brief to the Attorney-General in accordance with the obligation placed on the second defendant to provide reports under s 466 of the LPA.
At paragraphs [13]-[19] of her affidavit, Ms Sydney explained that she and her superior had considered that the second defendant should be providing the Attorney-General with annual reports under s 466 including general statistics as to the number of complaints, their outcomes, referrals and timeframes for their handling. In relation to Byrne, having read the ACAT decision, they were concerned that the complaint appeared to have been dismissed by the second defendant in circumstances where it did not have all of the required information before it.
Shortly after that letter was sent, the plaintiff emailed the Chief Minister’s office seeking a meeting to ventilate a number of concerns about the treatment of lawyers of African descent in the ACT. These concerns included an:
Orchestrated attack by some few wielding power in the ACT Law Society to ethnically cleanse all practising African Descent Lawyers in the ACT.
The plaintiff’s concerns were referred to the Attorney-General. On 9 March 2016 the Attorney-General wrote to the plaintiff in the following terms:[11]
…I appreciate these issues are of great concern to you. Neither I, nor the ACT Government condones discriminatory practices. The ACT is enriched by its multicultural community, and industries such as the legal industry benefit greatly from the broad and varied experiences of cultural diverse practitioners.
While I do appreciate the concerns you hold, I regret that I am not the appropriate person to deal with your complaint. The organisations about which you have raised concerns – the ACT Law Society and Legal Aid ACT – are independent bodies and it is inappropriate for me to interfere with the manner in which they carry out their functions. That said, I have asked my Directorate to raise these concerns with both the ACT Law Society and Legal Aid ACT.
I encourage you to also raise these complaints directly with the ACT Law Society and Legal Aid ACT. You can do so by contacting these organisations directly.
The Attorney-General also suggested in that letter that the plaintiff contact the Human Rights Commission should he wish to press his complaint about unlawful discrimination.
The response from the Attorney-General was in the circumstances entirely appropriate. I see nothing in this exchange to support the assertions of the plaintiff that he was discriminated against due to his race or any other relevant characteristic or status. In particular, I find that the circumstances of the Byrne case were quite distinctive. I accept the evidence of Ms Sydney as to the reasons why Byrne was specifically raised in the 23 November 2015 letter.
Consideration
Defamation
There can be little doubt that the draft complaint attached to the memorandum contained material defamatory of the plaintiff. Relevantly, the paragraphs extracted at [56] above carried the imputation that the plaintiff was an angry man prone to threaten violence against those who opposed him in order to get his own way. Apart from perhaps the imputation alleged by the plaintiff in (a) of paragraph [12] in his Amended Statement of Claim, I do not believe that, any of the other imputations alleged arise out of the matter complained of. Suffice to say that in making the memorandum and its attachments available to council members on a secure section of the second defendant’s website, with the reasonable likelihood that most of those members would access the site to read the documents, the first defendant published them in the relevant sense. That publication clearly occurred in the course of the first defendant’s duties. It follows that the second defendant would be vicariously liable for the defamation.
It is thus necessary to consider the defences raised by the defendants.
Limitation Periods
Section 21B of the Limitation Act 1985 (ACT) (Limitation Act) provides:
21BDefamation proceedings generally to be commenced within 1 year
(1)An action on a cause of action in defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of 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.
The plaintiff’s cause of action in defamation arose between 17 and 21 March 2016. He commenced proceedings on 6 November 2017. Unless the plaintiff is able to establish the ground for extending time in accordance with sub-s 21B(2) of the Limitation Act, his claim in defamation will be barred by the operation of sub-s 21B(1).
The plaintiff’s explanation as to why he had not commenced proceedings before 21 March 2017 appears in the transcript of 8 July 2019 (pp 83-86). He was cross-examined by counsel for the third defendant, Mr Buckland (pp 86-88). The plaintiff’s explanation appeared to be that he was under stress and was focussing on the ACAT proceedings at that time. His evidence established that he first became aware of the memorandum and the attached complaint in the course of the first instance ACAT proceedings on 22 November 2016. He was aware at that time that the matters were defamatory. The following exchange occurred during cross-examination in these proceedings:
Mr Buckland: As I understand from the answer you have just recently given, you were aware, as at 22 November 2016, that the matters were defamatory?
Mr Ezekiel-Hart: Yes, correct.
Mr Buckland: And yet it’s the case, isn’t it, that despite the awareness, you elected, while the judgment was reserved, not to pursue your rights in defamation. Isn’t that correct?
Mr Ezekiel-Hart: The election – the word ‘election’ is incorrect, because what I have given evidence here is that I am a person who is looking for my certificate to eat and a decision is hanging on me. While the decision is not out – I now going to start of another matter – it just look as if I’m crazy person and that’s what everyone will say. They wouldn’t even see the rationality of it.
Mr Buckland: It’s also the cause that after Member Beacroft’s determination came out on 24 January, you elected to appeal that decision as opposed to institute proceedings in defamation. Isn’t that correct?
Mr Ezekiel-Hart: Correct, because that appeal will still be hanging on the issue of whether I will be able to feed myself and my children. So it is – that one is critical. First of all, it is when it become impossible having put a reconsideration which was rejected and no reason for that, then I have no option.
The approach to be taken to the extension of time under provisions such as s 21B was considered by the NSW Court of Appeal in Barrett v TCN Channel Nine P/L [2017] NSWCA 304; 96 NSWLR 478 (Barrett). At pp 492-3 of the report, McColl JA (Simpson JA agreeing) said:
The extension provision “proceeds on the assumption that there may be [relatively unusual] circumstances where it will not be reasonable for a plaintiff to commence an action to vindicate his or her legal rights in accordance with the time limits provided by law…[t]he burden [being] on a plaintiff to point to [such] circumstances”. It poses an objective test, requiring evaluation of the “the circumstances as they appear objectively to the court and not ‘the circumstances which the plaintiff believed, however unreasonably, to exist’.”
Consideration of whether the applicant for an extension of the limitation period has established the not reasonable test “must commence from the position that the [Limitation] Act lays down strict time limits for the commencement of proceedings for damages for defamation”, demonstrating that the legislature “has identified some public interest in the speedy commencement and determination of actions for defamation”. That public interest “should not be undermined by too ready an acceptance of circumstances that are said to have made it unreasonable to sue within the year.” Thus, it has been said that the not reasonable test is a difficult one to satisfy, requiring the applicant to demonstrate the failure to commence the defamation proceedings within the limitation period was the consequence of “relatively unusual”, “special” or “compelling” circumstances.
The not unreasonable test is itself unusual, requiring the applicant to establish the difficult proposition that it would not have been reasonable to commence a defamation action within the on-year limitation period.
[References omitted.]
The Court in Barrett went on to conclude that once the precondition was established the power to extend time up to three years after publication was discretionary, notwithstanding the use of the word “must” in the NSW equivalent of sub-s 21B(2).
However, in my view the plaintiff has not established the precondition. Plainly, it was not reasonable for him to have commenced proceedings before 22 November 2016. Thereafter, notwithstanding his rejection of the term “election”, he seemingly chose to concentrate his efforts on the appeal from the ACAT decision to the exclusion of the defamation claim.[12] While it may be accepted that the litigation was stressful, it is clear that it was not so stressful that the plaintiff was unable to do that which was necessary to commence the appeal. The plaintiff did not claim that he was unaware of the limitation period. Even if he had, given his knowledge that he had a cause of action, coupled with his legal training, it would hardly provide a compelling basis to extend time even if the test is entirely discretionary. However, it is not entirely discretionary. As McColl JA pointed out in Barrett the “not reasonable” test is a rigorous one. Moreover, it has been specifically held that ignorance of the limitation period is not a reasonable basis for not commencing proceedings (see Noonan v MacLennan [2010] QCA 50; 2 Qd R 537 at [19]-[20]).
Looking at the circumstances objectively, I am not satisfied that it was “not reasonable” for the plaintiff to have commenced his defamation proceedings before 21 March 2017. It follows that the application to extend time under s 21B(2) must fail.
The time limitation under the HRA is contained in sub-s 40C(3) (reference is made to the relevant subsections of the provision):
40CLegal Proceedings in relation to public authority actions
(1)This section applies if a person:
(a)claims that a public authority has acted in contravention of section 40B; and
(b)alleges that the person is or would be a victim of the contravention.
(2)The person may –
(a) start a proceeding in the Supreme Court against the public authority; or
(b)rely on the person’s rights under this Act in other legal proceedings.
(3)A proceeding under subsection (2) (a) must be started no later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise
This provision certainly contains a broader discretion than that under s 21B. The court is required to consider all of the relevant circumstances paying particular attention to the length of the delay in commencing proceedings, the explanation for that delay and any prejudice which might have been suffered by the defendants. It is relevant, in my view, to also consider the strength, or weakness, of the case propounded by the plaintiff. All of this is to be done in the context of the rationale for the imposition of a time limit in the first place (see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552-3.
In the absence of full information as to the evidence in support of the plaintiff’s claims under the HRA I might well have given the plaintiff the benefit of the doubt and extended time under sub-s 40C(3) to 6 November 2017. In particular, I note that there would be no apparent prejudice for the defendants flowing from the time between the relevant causes of action accruing and the commencement of proceedings, or indeed, the hearing of the claims. However, for the reasons which follow I have concluded that the plaintiff’s claims under the HRA against all three defendants are hopeless and must fail. In that context I refuse the plaintiff’s application to extend time under sub-s 40C(3).
Absolute and Qualified Privilege
The decision above in relation to the limitation defence would lead by itself to the failure of the plaintiff’s claim in defamation. However, because the matter was fully heard and argued I have also chosen to address these and the other defences raised by the first and second defendants.
The plea of absolute privilege arises from the fact that the draft complaint was prepared as the first step in the process which would ordinarily lead to a hearing and determination by the ACAT. The plurality of the High Court, referring to Hercules v Phease [1994] 2 VR 411, saw that as sufficient to attract the privilege in Mann v O’Neill (1997) 191 CLR 204 at 215.
There is little doubt that the publication of the draft application to the Council of the second defendant for the purpose of deciding whether or not to proceed with the disciplinary matter would be an occasion of absolute privilege. However, I have reservations as to whether the publication of the draft application for an entirely different purpose, namely the determination of an application for a practising certificate, would also attract the privilege. In Medical Practitioners Board of Victoria v Mann [2000] VSCA 89; 1 VR 609, Winnecke P (with whom the other members of the Court agreed) said at [25]:
…The occasions in respect of which the law will accord absolute privilege to the publication of defamatory statements are limited. It has always accorded such a privilege to statements made in the course of proceedings in established courts of justice, whether such statements are made by witness, counsel, judge or juror, notwithstanding that the statements are made honestly or maliciously, or are the product of anger, spite or ill-will. It extends to oral statements, documents tendered in evidence, or allegations made in pleadings. Over the years the law has recognized that a similar privilege attaches to the proceedings of certain bodies and tribunals of a quasi-judicial nature, which exercise functions similar to those of established courts of justice. Thus it has recognized that absolute privilege attaches to the proceedings of the disciplinary committee of the Law Society of England and Wales; to the proceedings of the disciplinary committee of the Law Institute of Victoria; to proceedings before the Benchers of the Inns of Court; and to proceedings before a board of inquiry into police malpractices. It is said that absolute privilege attaches to the proceedings of such bodies by reason of necessity in the sense that it is necessary that the persons involved in the proceedings be able to discharge their duties freely and without fear of civil action.[9] But extension of the categories of the occasions to be afforded absolute privilege has been resisted unless its necessity has been demonstrated. In Mann v. O’Neill at 264-5, Kirby, J. expressed the basis for according absolute privilege to the activities of the arms of government, and the reasons for a reluctance to expand them, in this way:
“6. This much is common to the categories of absolute privilege which are undoubted. They relate to essential communications within the legislative, executive, judicial and quasi-judicial activities of government which are strictly necessary for the effective performance by those organs of government of their functions. There must be a special need in them to ensure the fearlessness of expression and to remove the risk of litigation such as to attract a protection which deprives an individual who is defamed by malicious falsehood of any right of redress and effectively puts the communication beyond the ordinary sanctions of the law.
7. When so explained, it will be understood why absolute protection or immunity is still regarded as wholly exceptional and why the courts, which uphold the rule of law, are unsympathetic to its expansion.”
[References omitted.]
It may be questioned whether the element of strict necessity, as discussed above, existed at the council meeting of 21 March 2016 to justify the complete exclusion of any right of action in defamation. I am inclined to the view that it did not. However, it is not necessary to express a final view on the point here. That is because I am comfortably satisfied that the defence of qualified privilege is made out both under the statute and at common law. Given my finding at [60] of an absence of malice and my conclusion as to qualified privilege below, the distinction between to the two privileges becomes academic.
In relation to qualified privilege s 139A of the CL(W)A provides:
139ADefence of qualified privilege for provision of certain information
(1)There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—
(a) the recipient has an interest or apparent interest in having information on some subject; and
(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and
(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes, on reasonable grounds, that the recipient has that interest.
(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—
(a) the extent to which the matter published is of public interest; and
(b) the extent to which the matter published relates to the performance of the public functions or activities of the person; and
(c) the seriousness of any defamatory imputation carried by the matter published; and
(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and
(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and
(f) the nature of the business environment in which the defendant operates; and
(g) the sources of the information in the matter published and the integrity of those sources; and
(h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and
(i) any other steps taken to verify the information in the matter published; and
(j)any other circumstances that the court considers relevant.
There can be no doubt that given the statutory context under which it was to consider the plaintiff’s application for a practising certificate, the Council had a proper interest in receiving information about any unresolved complaint against the plaintiff under the Act. Nor can it be doubted that the first defendant published the material to the Council in the course of giving it the information it required for making the decision. The only real issue arising in relation to this defence is whether it was reasonable for the first defendant to have provided the draft application to the Council without first inviting the plaintiff to respond to it (see s 139A(3)(h) of the CL(W)A).
Having regard to the position of the first defendant, it is my conclusion that it was reasonable for him to have provided the draft application to the Council without seeking a response from the plaintiff. He was fulfilling an administrative support role. It was entirely a matter for the Council whether it would seek input from the plaintiff on the allegations contained in the draft application. There is no evidence before me as to the standard practice (if any) for the Council to deal with contentious practising certificate applications. It may well be that as a matter of course such applications are determined on the papers without responses from applicants. It would be of particular concern in the circumstances of this case if the usual practice was to permit such responses. However, the evidence simply does not allow me to draw an inference either way.
There may well have been an obligation on the second defendant through its Council to provide procedural fairness to the plaintiff. If so, that obligation was breached by the Council not seeking a response from the plaintiff. However, that could have been remedied by the plaintiff exercising his appeal rights under s 81 of the LPA. It does not in my view detract from the reasonableness of the first defendant’s conduct.
It follows from the above that in my view the publication of the memorandum and attachments was covered by statutory qualified privilege. Should it be necessary to determine the issue, I would for the same reasons reach an identical conclusion in relation to common law qualified privilege.
Truth
Section 135 of the CL(W)A provides:
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
Under the common law the defendant bears the onus of establishing that the imputation(s) arising from the matter complained of were true in substance and fact (Johnston v Australian Broadcasting Commission (1993) 113 FLR 307 at 311 per Higgins J).
The letter of 1 December 2012 extracted at 1.36 of the draft application, and the email of 4 June 2013 at 1.40 are both in evidence.[13] The former in the third and fourth paragraphs of the extract at 1.36 supports the formulation apparently drawn by Mr Beaumont SC at 1.37. Also, it is my view that the words “Canberra will not contain us together...” in the email support the formulation at 1.42. In that context they establish the truth of the defamatory sting carried by the matter complained of, assuming the imputation or imputations discussed at [72] above.
Immunity under LPA
The first and second defendants rely upon two provisions. The first is s 468 which provides:
468Protection for things done in administration of ch 4
(1) A protected person is not civilly liable for anything done or omitted to be done honestly and without recklessness—
(a) for the purposes of the administration of this chapter; or
(b) in the exercise of a function under this chapter (other than in the exercise of a function of a council under part 4.9 (Publicising disciplinary action)); or
Note Section 451 provides protection for the exercise of functions under pt 4.9.
(c) in the reasonable belief that the act or omission was in the exercise of a function under this chapter (other than in the exercise of a function of the relevant council under part 4.9).
(2) In this section:
protected person means—
(a) the bar association or law society; or
(b) a council or any member of a council; or
(c) a committee or subcommittee of a council or any member of a committee or subcommittee; or
(d) anyone involved in the conduct of an investigation under this chapter; or
(e) a mediator to whom a matter is referred under this chapter; or
(f) any member of the staff of any entity mentioned in paragraph (a) to (d).
Chapter 4 of the LPA deals with complaints and discipline. The s 468 immunity would certainly have applied to the circumstances under which the draft application was prepared and submitted to the Council for consideration in August 2015. However, the presentation of the draft application to the Council for its meeting on 21 March 2016 did not fall within either sub-ss 468(1)(a) or (b). The purpose of that publication had nothing to do with ch 4. There is no evidence that the first defendant, or the council members, believed that they were exercising functions under ch 4. Indeed, I find it difficult to conceive of circumstances where such a belief could have been reasonably formed given that the matter for consideration so clearly arose under ch 2.
Having regard to the above I conclude that the s 468 immunity does not arise in the circumstances of this case.
The second provision relied upon by these defendants is s 587A:
587AProtection 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.
I accept that the first and second defendants bear the onus of establishing that the matter complained of was published honestly and without recklessness. In my view there can be no real doubt that the onus was discharged. While it is true that the history of the relationship between the plaintiff and the first defendant was not a happy one, in light of:
(1)the fact that the disciplinary application was drafted by independent Senior Council and, relevantly, based on communications sent by the plaintiff to the second defendant and Mr Lucas respectively;
(2)the decision of the Council in August 2015 to proceed with the application;
(3)the statutory framework which required the first defendant in the ordinary course of his duties to provide the council members with the draft application;
(4)the first defendant doing no more than attaching the application to his memorandum. He did not add to or embellish upon its contents either in the memorandum or orally at the meeting; and,
(5)the explanations given by the first defendant in relation to each challenge levelled at him during his cross examination in the first instance ACAT matter;[14]
(6)In consider that at all material times the first defendant was performing his duties as the professional Standards Director. He did nothing out of the ordinary in including the draft application with the papers to be considered by the Council. The fact that he recommended against the granting of a practicing certificate is hardly surprising given the plaintiff’s bankruptcy and the contents of the draft application.
Having regard to the administrative function carried out by the first defendant in preparing the documents to be considered by the Council on 21 March 2016 I conclude that the first defendant was carrying out a function under the Act, namely the processing of the plaintiff’s application for the grant of a local practising certificate.
It follows from the above that in my view the immunity under s 587A of the LPA was engaged and neither the first or second defendant can be held civilly liable for any defamation of the plaintiff contained in the draft application for disciplinary action published to the Council members in the days up to and including 21 March 2016.
HRA Claim against First and Second Defendants
The plaintiff relied upon the following sections of the HRA:
8Recognition and equality before the law
…
(2)Everyone has the right to enjoy his or her human rights without distinction or discrimination of any kind.
(3)Everyone is equal before the law and is entitled to the equal protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground.
Examples of discrimination
Discrimination because of race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth, disability or other status.
Note An 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).
10Protection from torture and cruel, inhuman or degrading treatment etc
(1)No-one may be— …
(b)treated or punished in a cruel, inhuman or degrading way.
…
12Privacy and reputation
Everyone has the rights – …
(b) not to have his or her reputation unlawfully attacked.
17 Taking part in public life
Every citizen has the right, and is to have the opportunity, to – …
(c) have access, on general terms of equality, for appointment to the public service and public office.
It is immediately apparent from my findings as to fact and my consideration of the circumstances of the publication of the memorandum and attachments that there is no basis for the claims in relation to sub-ss 10(1)(b) or 12(b). I do not understand the plaintiff’s reliance on s 17(c). The first and second defendants have done nothing, so far as I can see, that would impede the plaintiff’s access to the processes of appointment to either the public service or public office.
As I understand the operation of sub-s 8(2), it turns upon the demonstration of a breach of one of the substantive human rights described in the rest of pt 3 (or pt 3A) of the HRA. In the absence of proof of a breach of one of those rights, it has no work to do here.
Insofar as the plaintiff relies upon sub-s 8(3), it is true that he strictly required leave to do so given the orders made by the Associate Justice on 19 September 2018. I permitted him to rely on that subsection having regard to his circumstances and the absence of prejudice to the defendants.
However, that does not take the plaintiff any further, having regard to my finding of an absence of any discrimination against him as outlined in paragraphs [61] and [65] above.
Claim in Negligence against the Third Defendant
Given the exclusion of the material the subject of parliamentary privilege the case against the third defendant falls into an extremely narrow compass. In my view it fails utterly at the first hurdle. There is simply no warrant for concluding that the second defendant was an “instrumentality” of the third defendant, or that the third defendant had any control of that party in the exercise of its statutory functions under ch 2 of the LPA (or ch 4, for that matter).
The plaintiff’s reliance on s 466 is entirely misconceived. That section does no more than oblige the second defendant to provide information about disciplinary complaints and complaint handling at times and in relation to periods required by the Attorney-General. I do not see that section as creating a duty of care on the Attorney-General or the Territory to ensure that a specific complaint is handled in a particular way so as to avoid loss to an individual such as the plaintiff. Such a duty would in my view be entirely inconsistent with the independent regulatory functions imposed on the second defendant by the LPA (see the discussion in Sullivan v Moody [2001] HCA 59; 207 CLR 562 at pp 581-3).
The plaintiff relies on sub-ss 253(4), 322, and 373(2), 576(5) and 583(2) of the LPA as indicia of the third defendant’s power to control the second defendant. However, these sections merely set out very specific areas where the second defendant is required to obtain the consent of the Attorney-General for a specific action (e.g. particular uses of the statutory interest fund) or report to the Minister (e.g. as to the audit of the fidelity fund). None of these in my view erode the independence of the second defendant. This is particularly the case where it is carrying out its functions under ch 2 of the LPA.
The Territory argues that even if it did owe the plaintiff a duty of care of the nature alleged, the timing of the events in the lead up to the 21 March 2016 decision was such that any breach could not have reasonably prevented that decision from occurring. There is force in that submission, however given my conclusion it is not necessary for me to decide the question of causation.
HRA Claim against the Third Defendant
This claim also depended upon the establishment of control by the Attorney-General over the way in which the second defendant carried out its functions. For the reasons given above I have rejected that argument. Moreover, the facts as I have found them in relation to the Byrne matter and the absence of discrimination at [66]-[71] result in the failure of this claim.
Conclusion
It follows from the above that the plaintiff’s claims against the defendants fail. As against the first and second defendants, it seems to me that even applying the caution prescribed by decisions such as General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 those defendants established, for the purposes of their application for summary judgment, that there are good defences available to them in accordance with r 1147(2)(b) of the Rules. Although the procedure here was a little unusual, in that the application in proceeding seeking relief under r 1147 remained alive during the hearing, it does seem to me that once the plaintiff’s claim against the first and second defendants was examined in light of the evidence it became abundantly clear that it was truly a hopeless claim. Had the application in proceeding been heard and determined well before the substantive hearing, as would ordinarily occur, at the very least, the plaintiff’s claim would have been found to have been time barred. That alone would have justified the entry of judgment summarily.
Counsel for the first and second defendants pressed their application in proceeding, notwithstanding that the hearing concurrently related to the substantive case. In all of the circumstances it is appropriate in my view that judgment be entered against the plaintiff summarily under r 1147 in favour of the first and second defendants.
I should say that if I am wrong in taking this course, I would in any event have entered judgement in favour of the first and second defendants in the substantive hearing.
The third defendant did not seek summary judgement. Having heard and determined the plaintiffs’ claims against it I will enter judgement in its favour in the ordinary way.
Counsel for the first and second defendants indicated that special costs orders might be sought, depending on the outcome. In those circumstances I will reserve the issue of costs and makes some directions for the filing of short written submissions.
Accordingly, the orders of the Court are as follows:
(1)Judgment is entered for the first and second defendants against the plaintiff, pursuant to r 1147 of the Court Procedure Rules 2006 (ACT).
(2)Judgment is entered for the third defendant against the plaintiff.
(3)Costs are reserved;
AND I FURTHER DIRECT
(4)The defendants are to file and serve written submissions as to costs, limited to three pages, by 4 pm on 1 August 2019.
(5)The plaintiff is to file and serve written submissions as to costs, limited to three pages, by 4 pm on 8 August 2019.
| I certify that the preceding one hundred and eighteen [118] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: 25 July 2019 |
[1] Which applies in the Territory pursuant to s 24 of the Australian Capital Territory (Self-Government) Act 1988 (Cth).
[2] See p 39 of Exhibit “RR-1” to the affidavit of the Robert Reis (Exhibit D2).
[3] Paras [24]-[26] of Robert Reis (Exhibit D2).
[4] Ex “RR-1” to Exhibit D2, p8.
[5] Paras [18]-[20] Exhibit D2.
[6] I have taken malice in this context to comprehend spite or an ill will towards the plaintiff leading to publication for an improper or foreign purpose, or without an honest belief in the truth of the publication; see the discussion in Roberts v Bass [2002] HCA 57; 212 CLR 1.
[7] See pp 92-5 of Exhibit “RR-1” to Exhibit D2.
[8] P 248 of Exhibit “RR-1” to Exhibit D2.
[9] Pp 268-9 of Exhibit “RR-1” to Exhibit D2.
[10] It is Annexure "B" to the affidavit of Amy Sydney (Exhibit D5).
[11] The letter is Annexure “G” to Exhibit D5.
[12] Senior Member Beacroft delivered her decision on 24 January 2017. The plaintiff filed his appeal on 15 February 2017; see transcript on 8 July 2009 at p 87.
[13] Pp 2-3 and 4 respectively of Exhibit KR-1 to the affidavit of Kathryn Riley (Exhibit D3).
[14] See Exhibit “RR-1” in Exhibit D2 at pp 270-342.
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