Ezekiel-Hart v The Council of the Law Society of the ACT (No 5)
[2023] ACTSC 218
•8 August 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ezekiel-Hart v The Council of the Law Society of the ACT (No 5) |
Citation: | [2023] ACTSC 218 |
Hearing Date: | 8 August 2023 |
Decision Date: | 8 August 2023 |
Before: | Curtin AJ |
Decision: | (1) The parties are no longer to correspond with my Chambers until judgment is delivered on the applications before me unless such communication is strictly within the terms of Practice Direction No 1 of 2022 and in accordance with the Legal Profession (Solicitors) Conduct Rules 2015 and Legal Profession (Barristers) Conduct Rules 2021. (2) No party is to correspond with my Chambers in relation to the making of any application in the proceedings, assuming such communication falls within Order 1 above, without attaching an appropriately drafted application in proceedings that complies with the Court Procedures Rules 2006 (ACT). (3) The Registrar is to forthwith post a copy of this judgment and Orders to the plaintiff at his nominated address for service. |
Catchwords: | PRACTICE AND PROCEDURE – obligations under Practice Direction No 1 of 2022 – communication with chambers – emails not within the terms of Practice Direction 1 sent to judge’s chambers – no communication with chambers without prior knowledge and consent of other parties – obligations under the Legal Profession (Barristers) Conduct Rules 2021 (ACT) and Legal Profession (Solicitor) Conduct Rules 2015 (ACT) to seek and obtain consent from opponent before communicating with chambers – no consent sought or obtained from plaintiff – communications inappropriate |
Legislation Cited: | Civil Procedure Act 2005 (NSW), s 56 Court Procedures Rules 2006 (ACT) Legal Profession (Barristers) Conduct Rules 2021 (ACT), rr 56, 57, 58 |
Cases Cited: | Central Coast Animal Care Facility Incorporated v Wyatt [2022] NSWSC 1373 Contract Mining Services Pty Ltd v Adelaide Brighton Cement Limited [2020] SASC 69 Ezekiel-Hartv Council of the Law Society of the ACT (No 3) [2023] ACTSC 216 In the Estate of Olga Hart; Ross v Gordon [2019] ACTSC 48 Ken Tugrul v Tarrants Financial Consultants Pty Ltd (in liquidation)[No 2] [2013] NSWSC 1971 Magjarrai v Asteron Life Ltd [2009] NSWSC 1433 Magjarraj v Asteron Life Limited [2010] NSWCA 207 McGettigan v Coulter & Anor; Coulter & Anor v McGettigan [2021] NSWSC 1097 R v Fisher (2009) 22 VR 343 Sirola & Sirola [2016] FamCA 620 Stanizzo v Badarne [2014] NSWSC 689 The Estate of Alberto Magri [2022] NSWSC 873 United Cinemas Australia Pty Ltd v Gungahlin Lifestyle Pty Ltd [2016] ACTSC 376 UTi (Aust) Pty Ltd v Sheehan & Anor [2017] NSWSC 344 Videnovic v Todorovic [2023] NSWSC 242 Xiang bht Cao v Tong [2021] NSWSC 44 |
Texts Cited: | Practice Direction No 1 of 2022, ACT Supreme Court |
Parties: | Emmanuel Ezekiel-Hart ( Plaintiff) Council of the Law Society of the ACT ( First Defendant) Robert Anthony Reis (Second Defendant) Simone Carton (Third Defendant) Farzana Choudhury (Fourth Defendant) Katie Elizabeth Binstock (Fifth Defendant) Samuel Harper (Sixth Defendant) Attorney-General of the ACT (Seventh Defendant) Director of Public Prosecution (ACT) (Eighth Defendant) ACT Police Commissioner (Ninth Defendant) |
Representation: | Counsel No appearance ( Plaintiff) D Moujalli ( First to Sixth Defendants) A Muller (Seventh and Eight Defendants) L Hilly (Ninth Defendant) |
| Solicitors Self-represented ( Plaintiff) Thomson Geer ( First to Sixth Defendants) ACT Government Solicitor (Seventh and Eight Defendants) MinterEllison (Ninth Defendant) | |
File Number: | SC 139 of 2023 |
CURTIN AJ:
EX TEMPORE (REVISED)
Background
1․Various applications in these proceedings were set down to be heard before me yesterday with an estimate of two days.
2․In relation to those applications, and after court adjourned yesterday, my Chambers received an email from one of the defendant parties which appears to have been copied to the other parties and which was received at about 4:51pm.
3․After reciting some non-contentious matters, the email communicated that a certain counsel was required to make an appearance on another matter (in another Court) at 9:30am today which was anticipated to conclude by or before 11:00am.
4․The email continued and asked, whether as a matter of programming, I could hear from the other parties on the remaining issues first, with that particular defendant then to be heard from at or about 11:00am so that counsel could appear. Putting aside the impertinence of that request, that is, that this Court should organise its business to suit the availability of counsel, that email was not appropriate to be sent.
5․At 9:36am this morning, my Chambers received another email from the same defendant party attaching copies of written submissions and two affidavits, not yet read on the applications and apparently sworn today. That email appears to have been forwarded to the other parties. In my view that email was not appropriate to be sent.
6․In my judgment in Ezekiel-Hartv Council of the Law Society of the ACT (No 3) [2023] ACTSC 216 I quote a large number of email communications received by my Chambers from the plaintiff. Those emails were not appropriate to be sent.
7․For the reasons that follow I shall explain why it was not appropriate for the emails mentioned above to be sent by the parties concerned to my Chambers and I shall make orders restricting the parties in relation to further email communication with my Chambers until judgment is delivered on the applications before me.
Decision
8․Practice Direction No 1 of 2022 of this Court is headed “Communication with Chambers.” It concerns when and how legal practitioners and self-represented parties may communicate with judges’ chambers.
9․It says:
1. This practice direction takes effect from 26 May 2022.
2.This practice direction describes when and how legal practitioners and self-represented parties may communicate with the chambers of a judge. It articulates the well-established position set out in Ken Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971 at 21-22.
3. There should be no communication (written or oral) with a judge’s chambers in connection with any proceedings before that judge without the prior knowledge and consent of all active parties to those proceedings. The precise terms of any proposed communication with a judge’s chambers should be provided to the other parties for their consent.
4. There are four exceptions:
(a) trivial matters of practice, procedure or administration (e.g. the start time or location of a matter);
(b) ex parte matters;
(c) where communication responds to one from the judge’s chambers or is authorized by an existing order or direction (e.g. for the filing of material physical or electronically with a judge’s associate); and
(d) exceptional circumstances.
5. Any communication with a judge’s chambers which falls into any of the categories set out in [4](b), (c) or (d) should expressly state the reason for the communication being sent without another parties’ knowledge or consent.
6. Where consent has been obtained, that fact should be stated explicitly in the communication.
7. All written communications with a judge’s chambers in relation to proceedings should be copied to the other parties.
8. Nothing in this practice direction is intended to detract from the obligations of legal practitioners under the Legal Profession (Solicitors) Conduct Rules 2015 of the Legal Profession (Barristers) Rules 2021.
9. The principles in this practice direction should also be applied when communicating with the Registrar or Senior Deputy Registrar in relation to the matters listed before them.
10․It will be observed that in [8] of the Practice Direction reference is made to practitioners’ obligations under the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) or the Legal Profession (Barristers) Conduct Rules 2021 (ACT).
11․The relevant Solicitor Conduct Rules are contained in rr 22.5-22.7. Those rules say:
22COMMUNICATION WITH OPPONENTS
…
22.5A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent's absence with the court concerning any matter of substance in connection with current proceedings unless:
22.5.1the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court; or
22.5.2the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.
22.6A solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication referred to in Rule 22.5.
22.7A solicitor must not raise any matter with a court in connection with current proceedings on any occasion to which an opponent has consented under Rule 22.5.2 other than the matters specifically notified by the solicitor to the opponent when seeking the opponent’s consent.
12․The relevant Barristers Conduct Rules are contained in rr 56-58:
Duty to opponent
…
56.A barrister must not, outside an ex parte application or a hearing of which the opponent has had proper notice, communicate in the opponent's absence with the court concerning any matter of substance in connection with current proceedings unless:
(a)the court has first communicated with the barrister in such a way as to require the barrister to respond to the court; or
(b)the opponent has consented beforehand to the barrister dealing with the court in a specific manner notified to the opponent by the barrister.
57.A barrister must promptly tell the opponent what passes between the barrister and a court in a communication referred to in Rule 56.
58.A barrister must not raise any matter with a court in connection with current proceedings on any occasion to which the opponent has consented under Rule 56(b), other than the matters specifically notified by the barrister to the opponent when seeking the opponent’s consent.
13․Of relevance here is the final rule in each of the quoted rules which provide that solicitors and barristers must not raise any matter with the Court in connection with current proceedings on any occasion to which an opponent has consented, other than matters specifically notified by the solicitor or barrister to the opponent when seeking the opponent’s consent.
14․In this case, there has been no consent sought or obtained from the plaintiff by the relevant defendant, nor sought and obtained from the defendants by the plaintiff, to send the emails identified.
15․The Practice Direction expressly draws attention to Ken Tugrul v Tarrants Financial Consultants Pty Ltd (in liquidation) [2013] NSWSC 1971 at [21]-[22].
16․In that case, Kunc J said that there should be no communication with a judge’s chambers in connection with any proceedings before that judge without the prior consent of all active parties except in four circumstances. His Honour said:
19Email has done away with what might be thought to have been the last practical barriers to quick and easy communication with a judge's chambers. There are many types of communication, including by email, with a judge's chambers which can assist the parties and the Court in achieving a just, cheap and quick resolution of proceedings (see s 56 of the Civil Procedure Act 2005 (NSW)). This can include the advance provision of material proposed to be relied upon in court.
20However, the natural and well intentioned desire on the part of legal practitioners to send a communication to a judge's chambers copied to all the parties, which, at first blush, might appear to promote the efficient conduct of proceedings must always be subordinate to the cardinal consideration that the impartiality of the judge must never be compromised (in fact or appearance) by communications sent without either the knowledge or consent of all parties. As I have said in paragraph [17] above, sending such a communication with a disclosure of the other parties' lack of knowledge or lack of consent does not cure any impropriety.
21As a practical matter, and consistently with the principles and rules to which I have referred, I summarise the position as follows. There should be no communication (written or oral) with a judge's chambers in connection with any proceedings before that judge without the prior knowledge and consent of all active parties to those proceedings. Particularly in relation to written communications, given the ubiquity and speed of emails, the precise terms of any proposed communication with a judge's chambers should be provided to the other parties for their consent. There are four exceptions to this:
(1)trivial matters of practice, procedure or administration (e.g. the start time or location of a matter, or whether the judge is robing);
(2)ex parte matters;
(3)where the communication responds to one from the judge's chambers or is authorised by an existing order or direction (e.g. for the filing of material physically or electronically with a judge's associate); and
(4)exceptional circumstances.
22There are three other matters. First, any communication with a judge's chambers which falls into any of the categories set out in sub-paragraphs [21] (2), (3) and (4) above should expressly bring to the addressee associate's or tipstaff's attention the reason for the communication being sent without another parties' knowledge or consent. Second, where consent has been obtained, that fact should also be referred to in the communication. Third, all written communications with a judge's chambers in relation to proceedings should always be copied to the other parties.
17․It will be observed that his Honour, at [21], set out the four exceptions to the rule that there should not be written communications with the Court which are found in Practice Direction 1. In my view, none of the emails to which I have referred fall within any of those four categories.
18․In this Court Tugrul was cited with approval by McWilliam AsJ (as her Honour then was) in In the Estate ofOlga Hart; Ross v Gordon [2019] ACTSC 48 at [8], and Mossop AsJ (as his Honour then was) in United Cinemas Australia Pty Ltd v Gungahlin Lifestyle Pty Ltd [2016] ACTSC 376 at [102]. Although strictly unnecessary to say so, I also agree with those passages cited from Tugrul.
19․The matters raised in Tugrul were further addressed in Stanizzo v Badarne [2014] NSWSC 689. In that case Robb J quoted the paragraphs from Tugrul I have quoted above at [74] of his Honour’s judgment. His Honour then addressed a number of practical considerations which his Honour said underscored the need for scrupulous attention being given to communications with a judge’s chambers. His Honour also reminded readers (at [79]) of available courses of action that can be taken if prior consent of the active parties is not obtained.
20․His Honour said:
75It is not necessary or appropriate that I offer my own detailed alternative observations to those made by Kunc J. However, it may be of some use for me to advert to a number of practical considerations, which underscore the need for scrupulous attention to be given to the manner in which communications are sent directly to a judge's chambers.
76As Kunc J noted, it is a ubiquitous practice for the medium of the email to be used. That means that, in the absence of the email containing positive statements that identify the persons to whom the email has been sent, other than the judge's associate, the determination of that issue requires that the email addresses in the 'cc' and 'bcc' parts of the email heading be deciphered. That process may requires guesswork, as often email addresses are obscure as to the identity of the addressee. Further, it cannot always be assumed that the associate will have the court's file in chambers. If the file is not readily available, the associate will have difficulty working out the identities of the parties to whom a particular email must be sent, if all necessary recipients are to receive a copy. Even if the court's file is available, it can be a difficult exercise, in advance of appearances being announced for the parties at the commencement of the hearing, for the associate to work out with confidence who the relevant parties are, and who the legal representatives are.
77If a party who contemplates sending an email communication directly to a judge's associate is not meticulous in stating in an obvious way who is entitled to receive copies of the email, and who has received those copies, it may not be possible for the associate to determine whether a proper approach has been adopted, having regard only to what appears on the face of the email.
78Furthermore, it is not expected of a judge's associate that the associate will always be in a position to make a proper judgment as to whether or not it is appropriate for a particular communication, or attachment to a communication, to be brought to the attention of the judge. Associates have a right to the guidance of their judge. That has the result that, when communications are forwarded to an associate, there will always be a likelihood that the communication will be brought to the attention of the judge. Unless the judge adopts a procedure of refusing out of hand to receive and review all communications received in chambers from parties, which is not a practical or desirable course, there will always be a likelihood that the judge will receive and review a document that actually, or apparently, may compromise the impartiality of the judge. Judges are human and are no more able to divine the contents of documents without reading them, than are other people. The risk always is that, in an attempt to determine the significance of a document, the judge may not be able to avoid reading parts of the document that should not be read.
79The act of a legal practitioner in communicating directly with a judge's chambers must not be viewed as some casual, post-modern opportunity to provide useful information, but is a step that must be taken with great care, lest the impartiality of the judge be carelessly compromised. Legal practitioners should discuss the proposal to communicate with the judge's chambers in advance with the representatives of all active parties. The consent to the proposal from all parties should be obtained. Copies of the communication should be sent to all concerned, at the same time as it is sent to the associate. If consent is not forthcoming, the suitability of the time-honoured approach of arranging with the associate for the matter to be re-listed should be considered. If urgency precludes that approach, any communication to the judge's chambers should explain the problem, without disclosing any information for which unanimous consent for disclosure to the judge has not been obtained, and appropriate directions sought from the judge.
80Ultimately this is an ethical issue that depends upon legal practitioners taking the greatest of care to comply with their obligations. It is always possible that exceptional situations will arise, that will require a novel course to be adopted. That should not give rise to problems, provided that legal practitioners consider in a conscientious way how they should proceed.
21․I agree with Robb J.
22․Slattery J addressed similar matters in McGettigan v Coulter & Anor; Coulter & Anor v McGettigan [2021] NSWSC 1097 with particular reference to self-represented litigants. As background to his Honour’s observations in that case the reader of this judgment should have regard to my judgment in Ezekiel-Hart (No 3) where I quote the contents of a large number of email communications from the plaintiff in these proceedings.
23․In McGettigan, Slattery J made reference at [288] to written submissions filed by the self-represented litigant in that case in which the litigant made serious allegations as to the existence of a fraudulent conspiracy involving certain of the parties. His Honour noted that there was nothing in the evidence that gave the slightest basis to infer that any of the named individuals were involved in such a fraudulent conspiracy. I make that observation to give context to what his Honour then said at [289] wherein his Honour said:
At the conclusion of the hearing of the 31 May 2021 Motion on 16 June, the Court ordered that the parties no longer correspond with my Chambers until judgment is delivered in these proceedings unless by way of a formal application to reopen the case: the orders were similar but not identical to Kunc J's decision in Ken Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971. These orders were made because Mr McGettigan had been corresponding frequently with my Chambers indicating he wished to reopen his case. It was emphasised to him that he could apply formally by Motion to reopen his case, but the Motion would need to be filed in the Registry and the filing fee paid before it would be heard.
24․As one can see from the contents of the plaintiff’s emails in this case and quoted in Ezekiel-Hart (No 3), a number of serious allegations are made which go to a number of the considerations referred to in the authorities mentioned above.
25․Justice Meek also addressed the issue of communication with chambers in Central Coast Animal Care Facility Incorporated v Wyatt [2022] NSWSC 1373. At [153] his Honour said:
Generally there should be no communication with a judge's chambers in relation to any matter before the Court without the consent of all other active parties to the proceedings: Tugrul v Tarrants Financial Consultants Proprietary Limited (in liquidation) (No.2) [2013] NSWSC 1971 at [3] per Kunc J.
26․His Honour then quoted [19]-[22] of Tugrul and made specific reference to applications for adjournments made by way of email to a judge’s chambers or to the judge’s associate.
27․In relation to email applications for adjournments his Honour said:
155Specifically, absent consent, it is not an appropriate way to apply for an adjournment to send an email to a judge’s chambers email or to the Associate (even if copied to an opponent). Whilst a judge may treat that sort of communication as amounting to an application, there is no obligation on the judge to do so: Magjarraj v Asteron Life Limited [2010] NSWCA 207 per Hodgson JA at [5], Macfarlan JA at [7] agreeing (facsimile communications sent to primary judge).
156A party cannot properly expect a judge to consider privately materials emailed to a judge’s chambers on a contested application, afortiori where the responding party has not been included in some of the communications allegedly because material is “highly confidential”.
157Such a practice should not be engaged in. Notions of expediency however well-intentioned must, as noted by Kunc J, be subordinate to the cardinal consideration that the impartiality of the judge must never be compromised (in fact or appearance).
28․I agree with Meek J.
29․Of course, his Honour’s observations apply to other applications besides applications for adjournments.
30․In the Court of Appeal case cited by Meek J, Magjarraj v Asteron Life Limited [2010] NSWCA 207, the Court of Appeal considered an application for leave to appeal from a decision of Barrett J (as his Honour then was) dismissing proceedings in circumstances where, amongst other things, the applicant had communicated to the judge by facsimile that he was unable to appear by reason of illness, and had supported that assertion with a medical certificate from a doctor.
31․At first instance (Magjarraj v Asteron Life Ltd [2009] NSWSC 1433) Barrett J had said at [11]:
There is, of course, no adjournment application before the court. The plaintiff’s faxed letter cannot be accepted as amounting to any such application.
32․I agree with Barrett J.
33․In the Court of Appeal Hodgson JA, with whom Macfarlan JA agreed, said:
5It is said that the primary judge erred in saying, in effect, there was no application for an adjournment properly before him, and not being satisfied that a ground had been made out to grant an adjournment. In my opinion the material does not suggest that the primary judge was in error in those respects or in any other respect. It is not an appropriate way to apply for an adjournment to send a facsimile to the judge and to the opponent; and, whilst a judge may treat that sort of communication as amounting to an application, there is no obligation on the judge to do so.
6In the circumstances set out in the primary judge's judgement, I do not see any possibility of error being established in so far as the primary judge concluded that he was not satisfied that the applicant was unable to attend the Court, and was not satisfied that a ground had been shown for an adjournment and for not proceeding to deal with the case.
(Emphasis added)
34․A similar approach to that adopted by Barrett J to the purported making of applications by informal means was taken by Henry J in The Estate of Alberto Magri [2022] NSWSC 873. Her Honour said at [32]:
As matters stand, there is currently no adjournment application before the court. Insofar as the Plaintiff relies on the emails sent to my associate yesterday and today as some form of informal application to further adjourn and/or vacate the hearing, I am not prepared to accept them as such an application: UTi (Aust) Pty Ltd v Sheehan & Anor [2017] NSWSC 344 at [14]; Magjarraj v Asteron Life Limited [2009] NSWSC 1433 at [11] (Magjarraj). In the absence of further material and an appearance form the Plaintiff, I am also persuaded that the contents of the Plaintiff’s emails do not justify the Court granting a further adjournment of the hearing.
35․I agree with Henry J.
36․Finally, Hallen J addressed this issue in Videnovic v Todorovic [2023] NSWSC 242. His Honour said the following at [52] about the principles that apply in relation to email correspondence addressed to the Court by litigants in person.
37․His Honour said:
I have previously stated the principles that apply in relation to email correspondence addressed to the Court by litigants in person in Xiang bht Cao v Tong [2021] NSWSC 44 at [125] – [129], in which I wrote:
A litigant in person, whilst not being bound by Professional Rules that apply to solicitors and barristers, must remember, as must legal representatives, that:
Written communications between a party to litigation and the judge’s associate should normally be confined to matters concerning practice or procedure. Communications including emails containing allegations, matters of substance or requests for substantive advice should not be forwarded to a judicial officer without the [opposing] party’s express agreement (save in an exceptional case warranted for example by an ex parte application).
Unless the subject of express prior consent of the other parties, written communications should not include information or allegations which are material to the substantive issues in the litigation. In all circumstances, the other parties to the litigation should be copied in on any such correspondence. If a communication which apparently fails to comply with those requirements is received in chambers, it would be for judicial staff promptly to enquire whether the other party has been notified before engaging in any further exchanges with the sender. The ubiquity and prevalence of informal email communications between courts and litigants entails many advantages but, unless approached with an appropriate protocol by litigants and within judges’ chambers, presents potential risks of the errors demonstrated in the present case.
See: R v Fisher (2009) 22 VR 343 at 352 [38]–[39]; [2009] VSCA 100 at [38]–[39] (Redlich and Dodds-Streeton JJA).
In Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971, Kunc J, after referring to R v Fisher added, at [21]–[22]:
…
More recently, in Sirola & Sirola [2016] FamCA 620, McClelland J, at [15], added:
… if consent to communicate with a Judge’s chambers cannot be obtained from the other party or parties, then the party seeking to communicate with the Judge should make a formal application for the matter to be listed before the Judge so that the argument that the party wishes to present can take place in open court. It goes without saying that open justice is a fundamental aspect of procedural fairness that is foundational to proceedings before all Australian courts.
Also see, Contract Mining Services Pty Ltd v Adelaide Brighton Cement Limited [2020] SASC 69 at [28] (Livesey J).
38․I agree with Hallen J.
39․I note I have not read the outline of submissions, nor the two affidavits attached to the email received this morning from one of the defendant parties.
40․Taking into account Practice Direction 1, the authorities referred to above and the receipt of emails by my Chambers referred to in this judgment and in my judgment in Ezekiel-Hart (No 3), I propose to make orders concerning future communication with my Chambers.
Orders
41․In these proceedings I make the following orders:
(1)The parties are no longer to correspond with my Chambers until judgment is delivered on the applications before me unless such communication is strictly within the terms of Practice Direction No 1 of 2022 and in accordance with the Legal Profession (Solicitors) Conduct Rules 2015 and Legal Profession (Barristers) Conduct Rules 2021.
(2)No party is to correspond with my Chambers in relation to the making of any application in the proceedings, assuming such communication falls within Order 1 above, without attaching an appropriately drafted application in proceedings that complies with the Court Procedures Rules 2006 (ACT).
(3)The Registrar is to forthwith post a copy of this judgment and Orders to the plaintiff at his nominated address for service.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin. Associate: Date: |
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