Ezekiel-Hart v The Council of the Law Society of the Act (No 6)

[2023] ACTSC 219

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Ezekiel-Hart v The Council of the Law Society of the ACT (No 6)

Citation: 

[2023] ACTSC 219

Hearing Date: 

7-8 August 2023

Decision Date: 

8 August 2023

Before:

Curtin AJ

Decision: 

(1)    The name of the ninth defendant be amended so as to read “Commonwealth of Australia (as represented by the Australian Federal Police)”.

(2)    Should there be any requirement in the rules for any steps to be taken in relation to Order 1 above about the name of the ninth defendant, I dispense with those requirements.

Catchwords: 

CIVIL LAW – PRACTICE AND PROCEDURE – application to amend name of ninth defendant – entity originally named has no independent legal existence – Commonwealth of Australia correct party to be named – no prejudice to the plaintiff despite late notice – application granted

Legislation Cited: 

Australian Capital Territory (Self-Government) Act 1988 (Cth).

Australian Federal Police Act 1979 (Cth)

Court Procedures Rules 2006 (ACT), r 101, 502(1); pt 2.3, 2.7

Cases Cited: 

Ezekiel-Hartv The Council of the Law Society of the ACT (No 2) [2023] ACTSC 207

Vatarescu v The Commonwealth of Australia [2008] ACTSC 57

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)

Commonwealth of Australia (as represented by the Australian Federal Police) (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)

MinterEllison (Ninth Defendant)

File Number:

SC 139 of 2023

CURTIN AJ:  

EX TEMPORE (REVISED)

Introduction

1․In these proceedings the ninth defendant applied to change the name of the ninth defendant and to file in court and read two affidavits affirmed today and only served on the plaintiff earlier this morning.

2․The affidavits concern the question of the proper name of the ninth defendant.

Background

3․When the proceedings were commenced the plaintiff named the ninth defendant as the “ACT Police Commissioner”.

4․The ninth defendant retained solicitors who filed a Notice of Intention to Respond with the Court on 30 May 2023. In that document the ninth defendant said:

Corrected particulars of ninth defendant

The ninth defendant's correct particulars are as follows:

COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE AUSTRALIAN FEDERAL POLICE)

The ninth defendant agrees to its name being amended accordingly on the originating claim.

5․The ninth defendant filed a Defence on 7 June 2023 and on the cover page of that document referred to itself as the “Commonwealth of Australia (as represented by the Australian Federal Police)”. No step was taken by any party to obtain an Order from the Court correcting the name of the ninth defendant.

6․A number of documents were filed by the parties after the ninth defendant's Defence was filed on 7 June 2023, including an application in proceeding by the plaintiff filed on 26 July 2023 and an affidavit in support filed on the same date. That application (and the subpoenas the subject of the application) was dealt with in my judgment in Ezekiel-Hartv The Council of the Law Society of the ACT (No 2) [2023] ACTSC 207.

7․In those two documents (the application and the affidavit in support), drafted and filed by the plaintiff, the ninth defendant was titled “Commonwealth of Australia (as represented by the Australian Federal Police)”.

8․On 3 August 2023, the plaintiff filed an application for leave to appeal from the Orders I made in Ezekiel-Hart (No 2). In that document, the plaintiff named the ninth respondent as the “Commonwealth of Australia (as represented by the Australian Federal Police)”.

9․A somewhat similar set of circumstances occurred in Vatarescu v The Commonwealth of Australia [2008] ACTSC 57.

10․In those proceedings, the plaintiff commenced proceedings against the “Australian Federal Police (AFP)” and “the ACT Government” for malicious prosecution, wrongful arrest and false imprisonment, amongst other claims.

11․The matter came before Master Harper and his Honour said:

3. The plaintiff named the defendants as “the Australian Federal Police (AFP)” and “the ACT Government”. Both of these as it turns out, were incorrectly named, though I would not be critical of a litigant in person for either mistake. The Australian Federal Police was established as a statutory corporation under the Australian Federal Police Act 1979 (Cth) but the section constituting it as a legal entity in its own right has long since been repealed and the Australian Federal Police is now an instrumentality of the Commonwealth with no independent legal existence. Hence the correct first defendant is the Commonwealth of Australia.

4. Similarly, “the ACT Government” is not an entity known to the law. The correct second defendant is the Australian Capital Territory, which was established as a body politic under that name by section 7 of the Australian Capital Territory (Self-Government) Act 1988 (Cth).

5. These errors should have been corrected by amendment under Part 2.7 of the Court Procedures Rules 2006. As a matter of practicality, applications for amendment should have been made by each of the defendants. The defendants each filed a notice of intention to respond under Part 2.3 of the Rules. Rule 101 provides that such a notice must, if any particulars of the defendant stated in the originating process are incorrect, state the correct particulars. Where this is done, the rule provides that the court may amend the originating process accordingly. Parties should not expect that the Registrar will effect such an amendment of her own motion. A plaintiff served with such a notice may wish to be heard in relation to the proposed amendment. In circumstances of this kind, the defendant asserting that particulars are incorrect should apply to the court for the amendment. In a case such as the present one, where the action had been set down for a directions hearing before the Registrar immediately on filing of the notice of intention to respond, such an application could be made orally at the directions hearing, although it would be courteous to inform the other parties in advance by letter of the defendant’s intention to make such an application. The title of the proceeding is amended only once the order for amendment has been made by the court, and does not follow simply from the filing of the notice of intention to respond.

6. In the present case I am satisfied that the amendments should be made, and I order that the name of the first defendant be amended for the purpose of all subsequent documents to the Commonwealth of Australia, and that the name of the second defendant be amended for all subsequent documents to the Australian Capital Territory.

Decision

12․In my view, the name of the ninth defendant should be corrected pursuant to r 502(1) of the Court Procedures Rules2006 (ACT) for the same reasons as given by Master Harper in Vatarescu and pursuant to r 101(3) of the Court Procedures Rules.

13․Even though notice of this application was not given to the plaintiff prior to yesterday afternoon at the earliest, or this morning at the latest, there could be no prejudice to the plaintiff given the contents of the ninth defendant's Notice of Intention to Respond and Defence (referred to above) and the fact that the plaintiff has adopted the corrected name of the ninth defendant in various formal documents filed in these proceedings and filed in the Court of Appeal.

14․In the circumstances the affidavits referred to in [1] and [2] above were not necessary. Accordingly, they were not filed nor read on the application, and were returned to the ninth defendant.

Orders

15․I order:

(1)The name of the ninth defendant be amended so as to read “Commonwealth of Australia (as represented by the Australian Federal Police)”.

(2)Should there be any requirement in the rules for any steps to be taken in relation to Order 1 above about the name of the ninth defendant, I dispense with those requirements.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin.

Associate:

Date: