Ezekiel-Hart v The Council of the Law Society of the ACT (No 7)
[2024] ACTSC 12
•2 February 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ezekiel-Hart v The Council of the Law Society of the ACT (No 7) |
Citation: | [2024] ACTSC 12 |
Hearing Dates: | 7-8 August 2023 |
Decision Date: | 2 February 2024 |
Before: | Curtin AJ |
Decision: | (1) The statement of claim is struck out. (2) Judgment is entered in favour of the first to sixth defendants against the plaintiff. (3) The seventh and eight defendants are removed as parties to the proceedings. (4) I declare that Mr Emmanuel Ezekiel-Hart is a vexatious litigant. (5) The plaintiff is to pay the defendants’ costs of the applications and of the proceedings. |
Catchwords: | PRACTICE AND PROCEDURE – VEXATIOUS LITIGANTS – Where defendants seek declaration that the plaintiff be declared a vexatious litigant pursuant to s 67A of the Supreme Court Act 1933 (ACT) – whether plaintiff has instituted vexatious proceedings – whether plaintiff has done so frequently – whether the Court should exercise its discretion to make the order sought – plaintiff declared a vexatious litigant CIVIL LAW – PRACTICE AND PROCEDURE – Application to strike out statement of claim – application for summary judgment – lengthy history of litigation between the parties – failure by plaintiff to properly plead identifiable claims – proceedings instituted by plaintiff lacking reasonable grounds – no submissions filed by or on behalf of plaintiff – statement of claim struck out |
Legislation Cited: | Australian Human Rights Commission Act 1986 (Cth) s 46PO |
Cases Cited: | Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 |
Texts Cited: | Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 19 November 1998, 2653 (Gary Humphries, Attorney-General) |
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 Eighth Defendants) L Hilly (Ninth Defendant) |
| Solicitors No appearance ( Plaintiff) Thomson Geer ( First to Sixth Defendants) ACT Government Solicitor (Seventh and Eight Defendants) Minter Ellison (Ninth Defendant) | |
File Number: | SC 139 of 2023 |
Introduction
Background
Four general principles applicable to deciding whether a person is a vexatious litigant
The definition of vexatious proceedings
The purpose limb
The lacking reasonable grounds limb
Evidence of and from the plaintiff
Genesis of the litigation
The earlier proceedings said to have been vexatious
Proceedings #1 – not vexatious
Proceedings #2 – not vexatious
Proceedings #3 – not vexatious
Proceedings #4 – not vexatious
Proceedings #5 – not vexatious
Proceedings #6 – vexatious
Proceedings #7 – vexatious
Proceedings #8 – not vexatious
Proceedings #9 – vexatious
Proceedings #10 – vexatious
Proceedings #11, #12 and #13 – vexatious
Proceedings #14 – vexatious
Proceedings #15 – partially vexatious
Proceedings #16 – not vexatious
Proceedings #17 – vexatious
Proceedings #18 – vexatious
Proceedings #19 – vexatious
Proceedings #20 – vexatious
Proceedings #21 – vexatious
Proceedings #22 – not vexatious
Proceedings #23 – vexatious
Proceedings #24 – not vexatious
Proceedings #25 - vexatious
Proceedings #26 - vexatious
Proceedings #27 - vexatious
Proceedings #28 - vexatious
Proceedings #29 – not vexatious
Proceedings #30 - vexatious
Proceedings #31 – vexatious
Proceedings #32 – not vexatious
Proceedings #33 – vexatious
Proceedings #34 – vexatious
Proceedings #35 (the present proceedings) – vexatious
Proceedings #36 and #38 – vexatious
Proceedings #37 – not vexatious
The applications considered
Strike out application – Law Society defendants and the Commonwealth
The statement of claim
The submissionsDecision
Summary judgment - Law Society defendants
The issues and consideration
Decision
Removal application – Attorney-General and the DPP
The issues and consideration
Decision
Vexatious litigant application
Section 67A of the SCA
Frequency
Discretionary factorsDecision
Orders
CURTIN AJ:
Introduction
1․The plaintiff has commenced proceedings against, among others, the Council of the Law Society of the Australian Capital Territory, a number of the Law Society’s officers, a number of the Law Society’s solicitors, the Attorney-General of the Australian Capital Territory, the Director of Public Prosecutions of the Australian Capital Territory and the Commonwealth of Australia (as represented by the Australian Federal Police).
2․The plaintiff seeks relief and compensation in respect of, primarily, alleged breaches of his human rights. Other claims are made but need not be mentioned until later in this judgment.
3․On 13 June 2023, the first to sixth defendants (the Law Society defendants or the Society) filed an application in proceeding and sought the following orders:
1.an order pursuant to r 425(1) of the Court Procedures Rules 2006 (ACT) (the Rules) striking out the statement of claim filed on 11 April 2023;
2.an order pursuant to r 40 of the Rules setting aside the originating claim filed on 11 April 2023;
3.an order pursuant to the Court’s inherent jurisdiction that the notice to admit facts filed by the plaintiff on 12 May 2023 be set aside;
4.summary judgment pursuant to r 1147(2) of the Rules in favour of the Law Society defendants against the plaintiff;
5.a declaration pursuant to s 67A(2) of the Supreme Court Act 1933 (ACT) (the SCA) that the plaintiff is a vexatious litigant;
6.in the alternative to order 5, a declaration pursuant to ss 67A(2), (3) and (4) of the SCA that the plaintiff is a vexatious litigant, subject to a number of conditions; and
7.costs.
4․During oral submissions, counsel for the Society said that the Society no longer sought orders 2 and 3. Counsel for the Society submitted I should first order that the statement of claim be struck out, then order summary judgment in their favour, and then make an order declaring the plaintiff to be a vexatious litigant.
5․On 14 June 2023, the seventh and eighth defendants (the ACT defendants or the ACT) each filed an application in proceeding seeking an order that they be removed as parties to the proceeding and an order for costs.
6․On 17 July 2023, the ninth defendant (the Commonwealth) filed an application in proceeding and sought the following orders:
1.an order pursuant to r 425(1) of the Rules that the statement of claim filed by the plaintiff on 11 April 2023 be struck out in full;
2.refuse leave to replead; and
3.the plaintiff pay the ninth defendant’s costs of and incidental to the proceedings.
7․Mr Ezekiel Hart did not appear on the applications. He sought an adjournment of the hearing of the applications by email, but that application was refused: see Ezekiel-Hart v The Council of the Law Society of the ACT (No 3) [2023] ACTSC 216.
8․For the reasons that follow, the defendants’ applications should be granted.
Background
9․I shall set out the background to all applications in a combined fashion below to aid understanding and because:
(a)the ACT and the Commonwealth relied on the evidence tendered by the Society on their applications;
(b)some considerations relevant to the summary judgment application are best judged against the background of the preceding litigation relied on in the vexatious litigant application; and
(c)I ordered that all applications be heard together and that the evidence on one application be evidence in the others.
10․The substantial part of the background concerns the earlier proceedings relied upon by the Society on their application to declare the plaintiff a vexatious litigant.
11․I will also briefly say something about a number of applicable principles in order to frame the factual background and to explain at an early stage why the facts mentioned are relevant to the applications and particularly the application to declare the plaintiff a vexatious litigant.
12․In Ezekiel-Hart v Reis [2018] ACTSC 264 (Reis), McWilliam AsJ (as her Honour then was) said at [90] that there were three considerations relevant to an application to declare a person a vexatious litigant. In Collier v Attorney General (NSW) [2023] NSWCA 273 (Collier), Kirk JA, Ward P and Griffiths AJA agreeing, said at [45] that there were four considerations or steps, namely (adapting the language so that it refers to the SCA):
(a)first, identify the proceedings that are the subject of the application which are said to be vexatious;
(b)second, determine which, if any, of those proceedings was vexatious;
(c)third, determine whether the plaintiff has frequently instituted or conducted vexatious proceedings within the jurisdiction of any court or tribunal; and
(d)fourth, determine the manner in which the discretion granted by s 67A of the SCA is to be exercised (if at all).
13․There is no difference of substance between the three considerations mentioned in Reis and the four steps mentioned in Collier. The numerical difference is because the first consideration mentioned in Reis combined the first two considerations mentioned in Collier. Be that as it may, I shall follow Collier’s methodology.
14․The Society relied on approximately 38 earlier proceedings which they submitted were within the meaning of the term “vexatious proceedings”, as defined in s 67A(1) of the SCA. I am required to consider each of those 36 proceedings and determine whether each was vexatious.
15․When I set out the relevant facts of each of those 38 proceedings below as part of the background, I will also include my finding on whether each proceeding was a vexatious proceeding and my reasons for that finding.
16․The definition of “vexatious proceedings” in s 67A(1) of the SCA is:
vexatious proceedings means proceedings—
(a)the purpose of which is to harass or annoy, to cause delay or for some other ulterior purpose; or
(b)that lack reasonable grounds.
17․Because I will make findings whether each proceeding was vexatious in the below discussion, I should note four general principles applicable in this case, and decide what the word “purpose” means in the definition of “vexatious proceedings” in s 67A(1) of the SCA.
Four general principles applicable to deciding whether a person is a vexatious litigant
18․First, s 67A(1) of the SCA defines “proceedings” to mean any cause, matter, action, suit or proceeding of any other kind within the jurisdiction of any court or tribunal. The definition does not, in terms, confine proceedings to ACT courts and tribunals. Rather, the word used is “any” court or tribunal. Therefore, proceedings in the other states and territories, and the Commonwealth, may be considered.
19․Second, in NSW, there were a number of first instance decisions in which it was held that it was necessary for the court considering an application under the Vexatious Proceedings Act 2008 (NSW) to form its own judgment about each proceeding said to satisfy the definition of “vexatious proceedings”, but that in doing so the court may take into account the findings and views expressed by the judicial officers who resolved each of the proceedings.
20․Subsequently, in Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 (Teoh), at [53]-[54], the NSW Court of Appeal held that ordinarily the court that heard and decided the earlier proceedings will have been best placed to determine whether those proceedings were an abuse of process or instituted without reasonable grounds. However, the Court said that the seriousness of the consequences of making a vexatious proceedings order leaves it open to the court hearing an application for the declaration to depart from findings made in earlier proceedings. However, the Court said that in the ordinary course it would require very persuasive material to justify such a departure.
21․In my view that same approach should apply here. I note that McWilliam AsJ also adopted that approach in Reis, citing Teoh. McWilliam AsJ also cited Potier v Attorney-General in and for the State of New South Wales [2015] NSWCA 129; 89 NSWLR 284 (Potier) at [21]-[23] in support of that proposition, but I see no reference to that proposition in those paragraphs or elsewhere in that decision.
22․In this case, I have formed my own view of the earlier proceedings but have done so being informed by any relevant observations made by the judicial officers concerned.
23․Third, the Society had brought two earlier applications to have the plaintiff declared a vexatious litigant before the one with which I am concerned. Both applications failed: Reis and Ezekiel-Hart v Council of the Law Society of the ACT & Anor [2021] ACTSC 133. However, in neither application did McWilliam AsJ consider and decide whether any of the earlier proceedings relied upon amounted to vexatious proceedings. Therefore, there is no impediment to me doing so on this application.
24․Fourth, some of the earlier proceedings relied on by the Society were applications for leave to appeal and appeals.
25․Ordinarily, an application for leave to appeal is not a “proceeding”: Collins v R (1975) 133 CLR 120 at 122; Coulter v R (1988) 164 CLR 350 at 356; Preston v Dukes [2012] ACTCA 29 at [12]. However, in Jorgensen v Wilson [2023] ACTCA 45 at [214]-[234], I held that an application for leave to appeal was a “proceeding” within the meaning of that term when used in s 67A of the SCA. I adhere to that view. Thus, I shall take into consideration the various applications for leave to appeal discussed below.
26․Support for that view was given by Mossop M (as his Honour then was) in Vatarescu v Commonwealth of Australia and Australian Capital Territory [2013] ACTSC 270; 285 FLR 1 (Vatarescu) at 10 [40] in which his Honour held that “proceedings” included appeals. Thus, not only may appeals and applications for leave to appeal be considered as “proceedings” for the purposes of s 67A of the SCA, but a first instance decision and an appeal therefrom are to be regarded as two (separate) proceedings rather than one proceeding.
The definition of vexatious proceedings
27․The definition of vexatious proceedings in s 67A of the SCA is set out above. The definition has two limbs, and a proceeding may be vexatious if one or both limbs are satisfied. I shall examine each limb.
The purpose limb
28․The first limb provides that “vexatious proceedings” means proceedings the purpose of which is to harass or annoy, to cause delay, or for some other ulterior purpose.
29․Harass, annoy and delay are simple terms that need no detailed explanation.
30․The same can be said for the phrase “ulterior purpose”. An ulterior purpose is one other than the legitimate vindication of legal rights.
31․The issue which causes some difficulty is the meaning of “purpose” and whether purpose is to be assessed objectively or subjectively.
32․The word is not defined in the SCA nor is there anything in the Explanatory Memorandum or the Presentation Speech to the Supreme Court (Amendment) Bill (No 3) 1998 (ACT) (Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 19 November 1998, 2653), which introduced the vexatious litigant provisions, or other admissible extraneous material which assists in the interpretation of the word.
33․Dictionary definitions may be useful aids to statutory interpretation, although they are not determinative. One dictionary definition of “purpose” is “the reason for which something is done”: Shorter Oxford English Dictionary (6th ed, 2007). Another, the Oxford English Dictionary (online at 2 February 2024, n, def 2), defines it as “the reason for which something is done or made, or for which it exists; the result or effect intended or sought”.
34․Section 139 of the Legislation Act 2001 (ACT) says that in working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
35․In that regard, it is important to note that the policy behind vexatious litigant provisions is protective rather than punitive: Collier at [61], [66]. This means protective of both other litigants included in proceedings brought by vexatious litigants and of the Court. Protective of the Court really means protective of other users of the Court whose cases are delayed if the Court’s limited resources are employed in dealing with vexatious proceedings.
36․In Teoh at [56], citing Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (Gargan (No 2)), the purpose of the statutory power was said to:
…shield other litigants from harassment and to protect the court itself from the expense, burden and inconvenience of baseless and repetitious suits…
37․Mossop M said much the same in Vatarescu at 10 [41]:
Not only is that view compelled by the language of the definition, it is also consistent with the underlying purpose of s 67A. That purpose is to protect not only the potential defendants but also the time and resources of the Court in dealing with vexatious matters.
38․Other jurisdictions have examined “purpose” in their vexatious litigant provisions and whether that term involved an objective or subjective test.
39․In South Australia, the relevant equivalent provision is s 39(5)(a) of the Supreme Court Act 1935 (SA), which provides that proceedings are vexatious “if instituted to harass or annoy, to cause delay, or for any other ulterior purpose”.
40․In Attorney-General v Kowalski [2014] SASC 1 (AG v Kowalski), Blue J said that “purpose” should be assessed objectively, although a person’s subjective state of mind may be taken into account. Blue J said:
[1740] Section 39(5)(a) proceeds on the basis that proceedings are instituted for an ulterior purpose if their purpose is to harass or annoy or to cause delay. It proceeds on the basis that there are other types of ulterior purposes apart from harassment, annoyance or delay.
[1741] Section 39(5)(a) draws on common law concepts of abuse of process. Civil and criminal proceedings can be permanently stayed as an abuse of process if they are instituted for an ulterior purpose.
[1742] In the general law, there is a difference between motive and purpose. Motive refers to the person’s subjective reasons for seeking an objective. Purpose refers to the objective of the person engaged in the relevant conduct. Generally, a person’s purpose is ascertained by reference to the objective facts and circumstances. Evidence of the person’s subjective state of mind is relevant to, but not determinative of, purpose. There is a clear distinction between purpose and effect. Conduct may have various effects without their being the purpose of the person engaging in the conduct.
[1743] A similar approach applies to an assessment whether proceedings are instituted for an ulterior purpose within the meaning of s 39(5)(a).
(Citations omitted, emphasis added.)
41․In News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45; 215 CLR 563, Gleeson CJ made the same point at 573 [18] wherein his Honour said:
Purpose is to be distinguished from motive. The purpose of conduct is the end sought to be accomplished by the conduct. The motive for conduct is the reason for seeking that end.
42․In Western Australia the relevant provision is s 3 of the Vexatious Proceedings Restriction Act 2002 (WA). Section 3 says that “vexatious proceedings” means proceedings:
(a)which are an abuse of the process of a court or a tribunal;
(b)instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;
(c)instituted or pursued without reasonable ground; or
(d)conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.
43․Pritchard J said in St John of God Health Care Inc v Kezic (No 2) [2017] WASC 265:
[33] As EM Heenan observed in Granich Partners v Yap, the definition of ‘vexatious proceedings’ has the effect of:
characterising proceedings as vexatious if they are actively or intentionally instituted or pursued by the litigant for any of the identified or other wrongful purposes, so making the subjective intention of the litigant a material factor. However, proceedings will also be vexatious by an objective standard if they constitute an abuse of the process of the court or are brought or pursued without a reasonable ground… Hence, proceedings may be vexatious if they have any of these objective characteristics regardless of the personal intention, motive or state of mind of the litigant.
…
[35] In determining whether proceedings may properly be characterised as vexatious proceedings, it is also relevant to consider the effect of the proceedings overall, particularly where the same persons have been parties to numerous different actions. The pursuit of proceedings without reasonable ground, when that conduct is repeated, may become seriously and unfairly burdensome, and the repetition of such conduct may permit an inference of wrongful purpose to more readily be drawn.
(Citations omitted, emphasis added.)
44․In NSW, the position had not been settled by the Court of Appeal prior to legislative amendments in 2018 when the words “regardless of the subjective intention or motive of the person who instituted the proceedings” were added to s 6(d) of the Vexatious Proceedings Act 2008 (NSW) to make it clear that the subjective intention of the relevant person was not relevant. Several first instance decisions made prior to the amendment favoured the view that the test was objective. However, it must be noted that the NSW legislation is different to that in the ACT.
45․The relevant provision was s 6 of the Vexatious Proceedings Act 2008 (NSW), which defined “vexatious proceedings” as including:
(a)proceedings that are an abuse of the process of a court or tribunal, and
(b)proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
(c)proceedings instituted or pursued without reasonable ground, and
(d)proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
(Emphasis added.)
46․In Viavattene v Attorney-General (NSW) [2015] NSWCA 44 (Viavattene), Beazley P summarised the position as follows:
[1] I have had the advantage of reading in draft the reasons of Leeming JA. I agree with his Honour’s reasons and the orders he proposes. I have also had the opportunity of reading the additional remarks of Basten JA.
[2] Vexatious proceedings are defined in the Vexatious Proceedings Act 2008 (NSW) to include, relevantly, “proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or to achieve another wrongful purpose“: s 6(d).
[3] There are at least two first instance decisions in which para (d) has been construed as not requiring the court to determine whether the defendant in proceedings under the Act subjectively intended to act in such a way as to “harass or annoy, cause delay or detriment, or to achieve another wrongful purpose“: see Pascoe v Liprini [2011] NSWSC 1484 at [10] per Adamson J; Attorney-General v Tareq Altaranesi [2013] NSWSC 63 at [20] per Slattery J.
[4] Basten JA, at [22], has raised a question whether this is a correct construction of s 6(d). In particular, his Honour has indicated that the elements of “harass and annoy“ in s 6(d) would appear to require that subjective intent of the defendant to “harass and annoy“ be established. I do not consider that this is necessarily the correct construction of s 6(d). However, as his Honour states, if an intentional element is involved, intention may be inferred from the objective facts. I would only add that there may also be a question whether the descriptor in s 6(d) that describes proceedings conducted in a way so as to “achieve another wrongful purpose“ requires an intentional element.
[5] However, the construction of s 6(d) was not raised on the appeal and, therefore, as Basten JA points out, this is not the appropriate occasion to determine it.
(Emphasis added.)
47․In Attorney General for the State of New South Wales v Mohareb [2016] NSWSC 1823 (Mohareb), Schmidt J disagreed with what Basten JA said in Viavattene and instead said at [41]-[62] that s 6(b) involved a subjective test whilst s 6(d) involved an objective test.
48․Queensland defines vexatious proceedings in near identical terms to NSW: see Vexatious Proceedings Act 2005 (Qld) sch (definition of “vexatious proceeding”). In relation to that definition, Applegarth J said in Hambleton and Anor v Labaj [2010] QSC 124 at [11]:
Both parties cited Re Cameron which was decided in relation to the Vexatious Litigants Act 1981. Fitzgerald P stated:
Although there are sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court’s practices, procedures and rulings, persistent attempts to use the court’s processes to circumvent its decisions or other abuse of process, the wastage of public resources and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis.
I have regard to this “broad test”. Under the broad test, and under the statute, regard may be had to the motives or intent of the person against whom the order is sought. A proceeding that is instituted to harass or annoy, to cause delay or detriment, or for another unlawful purpose is a “vexatious proceeding”. However, an improper purpose is not necessary. As Toohey J stated in Jones v Cusack the question is whether the legal proceedings are vexatious, not whether they have been instituted vexatiously. It is not the respondent’s belief in the correctness of his arguments with which the court is concerned.
(Citations omitted, emphasis added.)
49․Cases which amount to an abuse of process may also amount to cases commenced to harass or annoy, to cause delay or for some other ulterior purpose.
50․In Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427, the plurality said the following about abuse of process at 452 [89]:
As the majority pointed out in Batistatos v Roads and Traffıc Authority (NSW), “[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories”. In Ridgeway v The Queen, Gaudron J noted that the concept extended to proceedings “instituted for an improper purpose”, and to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”. In Rogers v The Queen, McHugh J concluded that, although the categories of abuse of process are not closed, many cases of abuse can be identified as falling in to one of three categories: “(1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute.”
(Citations omitted, emphasis added.)
51․In Reis, McWilliam AsJ held at [91] that the words “some other ulterior purpose” in the definition were broad enough to encompass proceedings that were an abuse of process, albeit without explaining why her Honour came to that conclusion.
52․Abuse of process cases may also fall within the second limb of the test (proceedings that “lack reasonable grounds”), as discussed further below.
53․As mentioned earlier, the ACT provision is different to the NSW and Queensland provisions. Section 67A of the SCA simply refers to “purpose” and does not include the word “institutes” (which led Schmidt J to the conclusion in Mohareb that s 6(b) of the Vexatious Proceedings Act 2008 (NSW) involved a subjective test), nor does it include words like “proceedings conducted in a way so as to harass or annoy”.
54․In my view, the approach to “purpose” in s 67A should reflect that of Blue J in AG vKowalski, being that “purpose” refers to the objective of the litigation, which will be ascertained by the objective facts and circumstances. That is, after examining the objective facts and circumstances, can it be said that the objective of the litigation was to harass or annoy, to cause delay or for some other ulterior purpose? Evidence of the person’s subjective state of mind may be taken into account in determining the purpose or objective of the litigation, but that evidence would not be determinative.
55․It seems to me that such an approach is the one that best achieves the policy behind
s 67A of the SCA, namely, to protect potential defendants and the time and resources of the Court, accords with the dictionary definitions of “purpose”, and sits comfortably with the types of cases which amount to an abuse of process.56․This interpretation protects potential defendants and the Court (meaning other litigants waiting for their cases to be heard) both from those whose subjective intent is to harass or annoy (for example) and also the wholly misguided but indefatigable vexatious litigants who genuinely remain convinced of the righteousness of their causes despite all evidence to the contrary and the results of previous proceedings.
57․However pure may be the litigant’s subjective intention, the objective facts and circumstances may satisfy a judge that the objective of the litigation was the harassment or annoyance of the other parties, to cause delay, or for some ulterior purpose, being a purpose other than the legitimate pursuit of legal rights such as cases amounting to an abuse of process.
58․Thus, for example, a litigant who embarks on multiple proceedings essentially raising the same or very similar issues which have been dealt with in earlier proceedings, no matter their subjective belief in the righteousness of their actions, may be held to have commenced proceedings for an ulterior purpose, being the relitigation of issues already litigated.
The lacking reasonable grounds limb
59․The question whether proceedings lack reasonable grounds has universally been regarded in other jurisdictions as involving an objective test: see Collier at [57].
60․What lacking in “reasonable grounds” means is not capable of definition (and is not defined in the SCA).
61․There are two relevant ACT authorities as to the meaning of that term, but for the reasons that follow, and with great respect, I cannot agree with them (at least wholly, in relation to Vatarescu).
62․In Vatarescu, Mossop M held at 11 [44], picking up the formulation of Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 (Wentworth), that lacking reasonable grounds meant that the proceedings were so obviously untenable or manifestly groundless as to be utterly hopeless.
63․I agree with Mossop M that obviously untenable or manifestly groundless proceedings could amount to proceedings lacking reasonable grounds, but I would not confine the meaning of lacking reasonable grounds to that verbal formula (or similar formulations). That is because, in my respectful view, the provision Roden J considered in Wentworth was markedly different to s 67A of the SCA in one critical respect, and because lacking reasonable grounds has a wider meaning than obviously untenable or manifestly groundless.
64․In Wentworth, the relevant question was the meaning of s 84(1) of the Supreme Court Act 1970 (NSW), which said:
(1)Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings, whether in the Court or in any inferior court, and whether against the same person or against different persons, the Court may, on application by the Attorney General, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings in any court and that any legal proceedings instituted by the vexatious litigant in any court before the making of the order shall not be continued by him without leave of the Court.
(Emphasis added.)
65․There are three elements to that statutory formula:
(a)habitual and persistent;
(b)without reasonable grounds; and
(c)the institution of vexatious proceedings.
66․Importantly, the lack of reasonable grounds in s 84 is not, in terms of the wording of that section, a reason why proceedings may be regarded as vexatious. That is a marked difference from the terms of s 67A of the SCA. Section 67A says that proceedings may be vexatious if they lack reasonable grounds, whereas s 84 says that a person may be the subject of an order if they institute vexatious litigation habitually, persistently and without any reasonable ground.
67․This marked difference was made clear in Wentworth when Roden J said at 487.C-D:
If, as I believe must be the case, “habitually and persistently and without any reasonable ground institutes vexatious legal proceedings”, means something different from “habitually and persistently and without any reasonable ground institutes legal proceedings”, then relevant vexation cannot be found simply in the habitual or persistent manner in which legal proceedings are instituted, in a lack of reasonable ground for their institution, or in a combination of those factors. Something more is required. Similarly, the use of the words “without any reasonable ground”, implies that it would be possible to institute vexatious legal proceedings, and indeed to do so habitually and persistently, with reasonable ground.
(Emphasis added.)
68․In contrast to s 84(1) of the Supreme Court Act 1970 (NSW), s 67A of the SCA provides that a lack of reasonable grounds is sufficient for proceedings to be held to be vexatious. There is no “something more” that is required by the terms of s 67A as was required by s 84(1).
69․Adopting Roden J’s wording from the quote above, proceedings may be held to be vexatious under s 67A of the SCA simply because they do lack reasonable grounds. In that way, the bar set by parliament in the ACT is lower than that applicable in, for example, Gargan (No 2), in which the relevant provision applied was relevantly identical to s 84(1) of the Supreme Court Act 1970 (NSW).
70․In Vatarescu, reference was also made to Gargan (No 2). The applicable provision was O 21 r 1(1) of the Federal Court Rules 1979 (Cth) (since repealed), which provided:
(1)If a person institutes a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order:
…
(Emphasis added.)
71․In my view, statements from those authorities cannot be applied to s 67A of the SCA without taking into account the marked difference between the provisions considered in those authorities and s 67A of the SCA.
72․In Gargan (No 2), Perram J said:
[6] Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
[7] Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
73․Although Perram J began at [2] by saying that the following 11 principles applied to explaining what made a proceeding vexatious, it seems tolerably clear from his Honour’s language that [6] and [7] were devoted solely to what the term “reasonable grounds” meant.
74․As mentioned earlier, I agree with Mossop M that proceedings which were obviously untenable or manifestly groundless could amount to proceedings lacking reasonable grounds. I would agree with Perram J that proceedings which were manifestly hopeless or devoid of merit could amount to proceedings lacking reasonable grounds. But I would not confine the second limb of the definition of “vexatious proceedings” in s 67A of the SCA only to cases which fell within those narrower verbal formulations. Or, put indelicately, I would not substitute another verbal formulation for that provided by the statute. Amongst other reasons, those narrower formulations arguably exclude abuse of process cases.
75․I should mention Barlow v Law Society of the ACT [2018] ACTCA 16 (Barlow), in which Elkaim J, sitting as the Court of Appeal constituted by a single judge, heard an application by the respondents to have Ms Barlow declared a vexatious litigant. Elkaim J said the following about “reasonable grounds”:
[28] The Law Society referred me to the decision of Mossop AsJ (as he then was) in Vatarescu v Commonwealth and Australian Capital Territory [2013] ACTSC 270; 285 FLR 1 to indicate the principles that need to be applied in hearing an application under s 67A. It is apparent from the judgment that, while the bar may have been slightly lowered by the specific terms of s67A, it nevertheless remains very high.
…
[30] I am not, however, satisfied that each of the five proceedings is a vexatious proceeding. The fact that the proceedings are bound to be lost does not, of itself, mean that they were not based on reasonable grounds. I think the test requires something more so that, as stated by Perram J in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [6], the issues brought to the Court for determination are manifestly hopeless or devoid of merit.
76․In relation to [30] in Barlow, I would not cavil with his Honour in relation to the second sentence, in that there may be cases which are bound to be lost but which, on examination, did not lack reasonable grounds. But, with the greatest of respect, I cannot agree with his Honour in relation to the third sentence. I disagree for three reasons.
77․First, the statutory formula in s 67A(1) of the SCA is “that lack reasonable grounds” and is not “that are manifestly hopeless or devoid of merit”. If parliament desired that narrower test, then parliament would have used that narrower verbal formulation.
78․Second, there was no analysis or reasoning provided in Barlow supporting the conclusion that “something more” was required.
79․Third, account must be taken of the fact that the terms of the provisions considered in Gargan (No 2) and Wentworth are markedly different to the terms of s 67A of the SCA, as I have described above.
80․Section 67A of the SCA says that proceedings which lack reasonable grounds are vexatious proceedings. That is the statutory formula which must be applied.
81․Proceedings which are manifestly hopeless or devoid of merit, or proceedings which are obviously untenable or manifestly groundless, may both legitimately be considered as lacking reasonable grounds. But lacking reasonable grounds extends beyond cases answering those different verbal formulations.
82․The term “reasonable grounds” has a settled meaning in other areas of the law. In George v Rockett (1990) 170 CLR 104, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ said at 112:
When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
83․The terms of s 67A of the SCA do not require the establishment of a state of mind. The word “grounds” would extend to matters of law, matters of fact, or matters of mixed fact and law. But the essence of the second limb of the definition of “vexatious proceedings” in s 67A of the SCA is whether the subject proceedings, assessed objectively, lacked grounds (being matters of fact, matters of law, and matters of mixed fact and law) which were reasonable. If so, then those proceedings are vexatious for the purposes of that section.
84․The South Australian statute is substantially similar to s 67A of the SCA in terms of defining vexatious proceedings. Section 39(5) of the Supreme Court Act 1935 (SA) says:
(5)For the purposes of this section, proceedings are vexatious—
(a)if instituted to harass or annoy, to cause delay, or for any other ulterior purpose; or
(b)if instituted without reasonable ground.
85․As to “reasonable ground”, Bleby J said in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 (Mitsubishi v Kowalski) at [58]:
It is unhelpful to embark upon an analysis of what other courts have decided constitutes vexatious proceedings. Section 39(5) of the Supreme Court Act provides an exhaustive definition of what constitutes vexatious proceedings for the purpose of the section. Each paragraph of the definition requires the court to examine the circumstances surrounding the institution of the proceedings. It is not concerned with the manner in which the defendant conducted himself during the proceedings save to the extent that that may be an indicator of whether the proceedings were instituted for a purpose described in para(a) of subs (5), or in order to ascertain whether there was any reasonable ground for instituting the proceedings. If the proceedings are utterly hopeless they will satisfy that description: Attorney-General for the State of Victoria v Weston [2004] VSC 314 at [22]. If the proceedings have no prospect of success, or could have been or were in fact struck out as disclosing no reasonable cause of action, it is likely that they will be held to have been commenced vexatiously.
(Emphasis added.)
86․As I read that judgment, the examples given in the last sentence fall outside cases that may be regarded as obviously untenable or manifestly groundless.
87․Mitsubishi v Kowalski was followed by Layton J in Garrett v Mildara Blass Ltd [2009] SASC 19. In addition, Layton J held that certain principles should be applied to the South Australian provision. Those principles were set out at [113]-[117], and I have summarised them as follows:
(a)the proper approach for a court in considering whether proceedings were instituted without reasonable ground is to determine whether the proceedings instituted by the alleged vexatious litigant were “utterly hopeless or had no prospect of success”;
(b)to assist in reaching this conclusion, the Court may have regard to the reasons given; orders made; other observations made by the Court in those proceedings; and whether there has been a successful strike out of the proceedings as disclosing no reasonable cause of action;
(c)if the proceedings relied upon are vexatious then that ordinarily should be apparent upon a reading of the reasons and orders and, if it is not, there will usually be no sensible basis for relying upon them, except to the extent that they may form part of a relevant chain of events;
(d)the fact that a plaintiff fails in litigation does not demonstrate that the proceedings are vexatious, it is necessary to examine the reasons given in the judgment to determine whether the proceedings are properly to be characterised in that way;
(e)a successful strike-out application by the defendant, at least where not based upon technical points, may be reliable evidence in the circumstances of vexatiousness; and
(f)the manner in which a defendant conducts themselves may be a helpful gauge of whether the proceedings were instituted for the purposes outlined in s 39(5) of the Supreme Court Act 1935 (SA) in assessing whether there were reasonable grounds for instituting the proceedings.
88․In my view, those principles are applicable to s 67A of the SCA with the exception being the first. As I have already held, lacking reasonable grounds is, in my respectful view, a wider test than utterly hopeless or having no prospect of success.
89․An example of a case which may not be regarded as utterly hopeless or having no prospect of success are certain abuse of process cases or those cases in which a litigant pursues a claim already litigated in earlier proceedings (but which may not be caught by principles such as res judicata or Anshun estoppel, for example).
90․Other authorities have said that the pursuit of claims that have previously been determined adversely to the litigant are examples of proceedings instituted or pursued without reasonable ground.
91․One of those cases was Mohareb v Palmer (No 2) [2020] NSWCA 324 (Mohareb v Palmer (No 2)). In that case, Simpson AJA (with whom McCallum JA agreed) said the following about “reasonable grounds” at [126]:
Curiously enough, no simple test for determining whether a proceeding has been instituted without reasonable ground appears to have emerged. A number of statements have identified the pursuit of claims that have previously been determined adversely to the litigant as examples of proceedings instituted or pursued without reasonable ground: Kowalski; and, on appeal, Kowalski v Mitsubishi Motors Australia Ltd; Attorney-General of New South Wales v Croker [2010] NSWSC 942 at [17]; Singh v The Owners Strata Plan 11723 [2013] NSWSC 1595. Otherwise it has been suggested that proceedings that are “manifestly hopeless” or “devoid of merit” will fall within that category: Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [6]. Proceedings that have no reasonable prospects of success come within that category.
92․Perhaps it is not so curious that no simple test has emerged for determining whether a proceeding has been instituted without reasonable ground given the general law’s difficulty in providing a simple test for the word “reasonable” in, for example, concepts such as “reasonable care” and “reasonable doubt”.
93․Be that as it may, I think the phrase “that lacks reasonable grounds” in s 67A of the SCA is wider than “manifestly hopeless or devoid of merit” or “obviously untenable or manifestly groundless”. In my view, those formulations are narrower than lacking reasonable grounds, which extends, for example, to cases where issues have been previously determined or where there is a pattern of attempting to, in substance, relitigate previously litigated claims. I do not suggest that those may be the only examples, only that they are examples of cases lacking reasonable grounds that may not fit within descriptions such as “obviously untenable” or “manifestly groundless”.
94․The following authorities support my conclusion.
95․In Soden v Kowalski [2011] FCA 318, Stone J said at [52]:
As to what constitutes lack of reasonable grounds, the possibilities are endless. One point is clear and particularly relevant in the current proceeding and that is, where issues have previously been determined, the institution of proceedings with respect to them generally indicates a lack of reasonable grounds: see Jones Lang Lasalle (Qld) Pty Ltd v Dart [2005] FCA 1614 at [31] per Kiefel J and Granich & Associates v Yap [2004] FCA 1567 at [9] per French J.
(Emphasis added.)
96․On the unsuccessful appeal (cited in Mohareb v Palmer (No 2) in the quote above), Jacobson, Siopis and Nicholas JJ said in Kowalski v Mitsubishi Motors Australia Ltd [2011] FCAFC 159; 198 FCR 153 at 163-164 [66]:
Seventh, there may be some tautology in the language of the Rules because the requirement of absence of reasonable grounds adds little to the concept of a vexatious proceeding. The hallmark of a vexatious proceeding will often, although not always, be one which seeks to re-litigate an issue that has been authoritatively determined in other proceedings. Where issues have previously been determined, it will usually follow that the institution of fresh proceedings with respect to the same issue will lack reasonable grounds: Jones v Skyring at 309; Ramsey v Skyring at [57]; Jones Lang Lasalle at [31].
(Emphasis added.)
97․In Singh v Owners Strata Plan 11723 [2013] NSWSC 1595 (cited in Mohareb v Palmer (No 2) in the quote above), Slattery J said at [50]:
The Act’s, s 6(c) definition of “vexatious proceedings” as proceedings “without reasonable ground” is gauged objectively, and not from the perspective of the litigant said to be vexatious. This approach protects courts from litigants who genuinely but misguidedly are persuaded as to the correctness of their own conduct: Gargan (No 2) at [9]. One form of want of reasonable grounds is a failure or refusal on the part of the person instituting proceedings to understand the principles of finality of litigation: Gargan (No 2) at [7]. Thus, proceedings that lack reasonable grounds may also constitute an abuse of process. It will often be the case that proceedings with no prospect of success, or with no real prospect of a remedy of substance will also be brought without reasonable grounds.
(Emphasis added.)
98․In my view, cases involving an abuse of process may lack reasonable grounds (or be for an ulterior purpose) within the meaning of vexatious proceedings in s 67A of the SCA, as may cases which involve the pursuit of claims that have previously been determined adversely to the litigant. A successful strike-out application may be evidence of a lack of reasonable grounds, and the reasons given in a judgment may legitimately lead to a conclusion that the proceedings could properly be characterised as lacking reasonable grounds.
99․Of course, there is a degree of overlap between the two limbs of the definition of vexatious proceedings in s 67A of the SCA. The two limbs are not mutually exclusive.
Evidence of and from the plaintiff
100․I should note for completeness that the plaintiff did not lead any evidence of his subjective intentions, nor any other evidence on the defendants’ applications. Nor did he appear before me to make submissions. Thus, I am left to consider “purpose” in the absence of any evidence or submissions from the plaintiff.
101․It is important to note that in relation to what follows, I have taken into account the fact (which is not in dispute between the parties) that the plaintiff is and was a legally qualified litigant. Thus, his acts and omissions have to be judged in the context of having that qualification.
Genesis of the litigation
102․The plaintiff has been involved in litigation with the Council of the Law Society, amongst others, since 2009.
103․The genesis of much of the litigation that followed was summarised in Ezekiel Hart v Law Society of the Australian Capital Territory [2013] FCA 257. In that case, Foster J explained the starting point of much of what followed as follows:
[4] In 2002, the applicant graduated from the University of Tasmania with a law degree. Shortly thereafter, he moved to Canberra. In 2003, he was admitted as a solicitor in the Australian Capital Territory.
[5] In 2008, the applicant decided to establish his own law firm. In order to practise on his own account, the applicant was required to hold a current unrestricted practising certificate. By letter dated 11 August 2008 sent to the Law Society of the Australian Capital Territory (the Law Society), which is the first respondent in this proceeding, the applicant applied for an unrestricted practising certificate. In the period from about 2003 until August 2008, the applicant had worked as an employed solicitor with a restricted practising certificate.
[6] In September 2008, the Law Society refused to issue an unrestricted practising certificate to the applicant until such time as he had satisfactorily completed the Society’s Practice Management Course. The applicant had enrolled in the July/August 2008 Practice Management Course but had failed to complete that course to the satisfaction of the Law Society. The applicant contends that he should have been assessed as having passed that course but was unfairly prevented from doing so by those who ran the course.
[7] The applicant believes that he was denied a pass in the July/August 2008 Practice Management Course and then denied an unrestricted practising certificate for the 2008–2009 Practice Year because certain individuals (officers and employees of the Law Society) conspired to prevent him from being given an unrestricted practising certificate and otherwise acted unlawfully for the purpose of denying to him his legitimate entitlement to such a practising certificate. He has sued those individuals whom he holds responsible for what occurred: The second respondent (Mr Reis), who was employed by the Law Society as its Professional Standards Director; the third respondent (Mr King), who was employed by the Law Society as its Executive Director; and the fourth respondent (Mr Barnett), who was the Law Society’s President at the relevant time.
104․I shall now discuss the various proceedings upon which the Society relied for its application to declare the plaintiff a vexatious litigant, broadly in chronological order. I shall briefly describe each proceeding and whether it was a vexatious proceeding within the definition of that term in s 67A of the SCA, namely, whether the purpose of the proceedings was to harass or annoy, to cause delay or for some other ulterior purpose, or whether the proceeding lacked reasonable grounds.
105․In discussing these earlier proceedings, I will refer to Mr Ezekiel-Hart as the ‘plaintiff’ (as he is in the present proceedings) for ease of comprehension.
106․I will assign each earlier proceeding a number which will be used in the sub-heading for each proceeding. I will also include in that sub-heading my finding whether that proceeding was vexatious.
107․The table below shows which defendant/respondent parties were joined to each numbered proceeding. That is particularly relevant to the question whether the same or substantially the same issues have been raised or litigated in earlier proceedings and the exercise of the discretion to make the declaration sought.
Name
Proceeding
Organisations
Law Society of the Australian Capital Territory/ Council of the Law Society of the Australian Capital Territory
1, 2, 3, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19*, 22*, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36*, 37
Legal Aid Commission ACT
14
Australian Capital Territory
17, 19, 21, 22
Deputy Registrar of the Supreme Court of the Australian Capital Territory
24
The Supreme Court of the Australian Capital Territory
26
The Attorney General of the Australian Capital Territory
27**, 35
Director of Public Prosecution (ACT)
35
Commonwealth of Australia (as represented by the Australian Federal Police)/ACT Police Commissioner
35
Presidents of the Law Society
Rod Barnett
1, 2, 3, 6, 7, 8, 9, 10, 11, 12
Sarah Avery
17
President of the Law Society of the ACT
23, 24, 25, 26, 27, 28, 29
Farzana Choudhury
35
Staff of the Law Society
Larry King (Executive Director and CEO)
1, 2, 3, 6, 7, 8, 9, 10, 11, 12
Simone Carton (CEO)
35
Robert Reis (Professional Standards Manager)
1,2, 3, 6, 7, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19*, 22*, 35, 38*
Legal representatives for the Law Society
Katie Binstock
35
Samuel Harper
35
*Respondent in two proceedings heard together.
**Intervenor in proceeding.
108․As the reader will quickly appreciate, the Society has been a party to 32 proceedings, the various Presidents of the Society (collectively) have been parties to 19 proceedings, and officers of the Society (collectively) have been parties to 29 proceedings.
The earlier proceedings said to have been vexatious
Proceedings #1 – not vexatious
109․On 17 March 2009, the plaintiff commenced proceedings (SC 303 of 2009) in the Supreme Court of the ACT against the Law Society and its officers, Mr Reis, Mr King, and Mr Barnett, seeking various forms of relief arising from the Law Society’s refusal to grant the plaintiff an unrestricted practising certificate in September 2008.
110․On 31 August 2009, Higgins CJ struck out and dismissed the plaintiff’s claims with an order for costs.
111․For reasons not explained in the proceedings dismissed by Higgins CJ, or ever since, the plaintiff did not exercise his right of appeal from the decision of the Society to the Supreme Court as provided by s 81 of the Legal Profession Act 2006 (ACT) (the LPA).
112․Rather, as Gray P observed in the appeal from Higgins CJ’s orders (Ezekiel-Hart v Law Society of the Australian Capital Territory [2010] ACTCA 6; 173 ACTR 15 at 16), in the proceedings dismissed by Higgins CJ, the plaintiff had sought damages against the Society:
[4] … under generally unparticularised heading or headings that the defendants’ actions were:
… vexatious and oppressive, abuse of process, bad in faith, fraudulent, an abuse of power or, in the alternative, the act was degrading of the plaintiff’s person and, as such, racial and discriminatory, contrary to section 8 of the Human Rights Act 2004, sections 8 and 7 of the Discrimination Act 1991.
[5] That general pleading sets the tenor for a series of allegations of causing loss to the Commonwealth, discriminatory marking of the plaintiff’s script, discrimination against the plaintiff’s children and wrongful activities with respect to the ACT Vice Presidential Election, among other matters.
[6] The pleadings are in a form which readily lend themselves to a description of proceedings that would tend to prejudice or embarrass the fair trial of whatever cause of action might be the subject of them. I must say, on my reading of the pleadings, there is certainly no clearly discernible cause of action on which the claim for damages is based. The drawing of the pleadings in the form that they are presented, in my view, do not reflect at all well on Mr Ezekiel-Hart’s holding of an unrestricted practising certificate.
113․Strangely, the plaintiff commenced those proceedings despite the fact he had been granted an unrestricted practising certificate from 1 July 2009: Ezekiel-Hart v Law Society of the Australian Capital Territory [2010] ACTCA 6; 173 ACTR 15 at 15 [3]. Thus, as Gray P observed at 15 [3], much of the relief sought by the plaintiff would seem to have been futile in light of that particular circumstance.
114․There is insufficient evidence for me to find that the proceedings determined by Higgins CJ were vexatious. There is no judgment of Higgins CJ available, nor are the materials that were before his Honour.
Proceedings #2 – not vexatious
115․On 28 September 2009, the plaintiff filed an application (ACTCA 6 of 2009) in the Supreme Court of the ACT seeking leave to appeal the orders of Higgins CJ. President Gray, sitting as a single judge of the Court of Appeal, dismissed the application on 19 March 2010: Ezekiel-Hart v Law Society of the Australian Capital Territory [2010] ACTCA 6; 173 ACTR 15. His Honour dismissed the application on the basis that it was incompetent because it was an appeal from an interlocutory decision and leave to appeal had not been sought or obtained.
116․I would not find the appeal to be vexatious. A reading of Gray P’s judgment reveals that the plaintiff put forward an argument to the effect that leave to appeal was not required. That argument failed but was not so untenable that I would describe it as lacking reasonable grounds. There is no evidence establishing that the purpose of the appeal was to harass or annoy, to cause delay, or for some other ulterior purpose, or that it lacked reasonable grounds.
Proceedings #3 – not vexatious
117․On 21 May 2010, the plaintiff sought special leave to appeal to the High Court of Australia in respect of the decision of Gray P: see Ezekiel-Hart v Law Society of the Australian Capital Territory & Ors [2010] HCASL 210. Special leave was refused by Gummow and Kiefel JJ at [5] on the basis that there was “insufficient reason to doubt the correctness of the decision of the Court of Appeal”.
118․I am not satisfied that that application was vexatious. There is no evidence that the purpose of that application was to harass or annoy, to cause delay, or was brought for some other ulterior purpose, or that it lacked reasonable grounds.
Proceedings #4 – not vexatious
119․On 31 August 2011, the plaintiff filed two applications (SC 303 of 2009 and ACTCA 26 of 2009, collectively #4) in the Supreme Court of the ACT in which the plaintiff complained that the orders made by Higgins CJ on 31 August 2009 were obtained by fraud and misrepresentation. That application was dismissed by Higgins CJ on 2 September 2011. No reasons were provided.
120․Although there is a real possibility those proceedings lacked reasonable grounds, there is no evidence upon which I could make that finding.
Proceedings #5 – not vexatious
121․On 9 August 2013, the plaintiff filed an interim application (SC 303 of 2009) in the Supreme Court of the ACT which sought to clarify the meaning of certain orders made by Higgins CJ on 31 August 2009.
122․On 30 August 2013, Mossop M dismissed the application on the basis it was misconceived: Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] ACTSC 182.
123․However, despite describing it as “misconceived”, it is apparent from Mossop M’s judgment that there was an error in the bench sheet. His Honour said at [12]:
Given the fact that none of the documents prepared, namely, the associate’s bench sheet, the plaintiff’s filed version of the order, the defendants’ filed version of the order, accurately reflect the order made by the Chief Justice, I am satisfied that I should make an order which ensures that the record of the court accurately reflects the orders made by the Chief Justice.
124․Against that background, Mossop M dismissed the application for two reasons, which his Honour explained at [16]:
There are two reasons why the application must be dismissed. First, as I have explained above, the order of the court was that the plaintiff pays the costs “of and incidental” to the proceedings. The contentions of the plaintiff in the application that has been made are inconsistent with the orders of the court. Second, if there was to be a contest as to the amount permitted on assessment by the Registrar, the rules required that that be done by way of an application for reconsideration under r 1851 and by an application for review under r 1855 and not by a collateral process such as this. I see no reason why the procedures set out in the Court Procedures Rules should not be enforced in the present case.
125․I am not satisfied that that application was vexatious. There is no evidence that the purpose of that application was to harass or annoy, to cause delay, or was brought for some other ulterior purpose, or that it lacked reasonable grounds (given the error in the bench sheet).
Proceedings #6 – vexatious
126․On 7 September 2011, the plaintiff commenced proceedings (SC 640 of 2011) in the Supreme Court of the ACT against the Law Society, Mr Robert Reis, Mr Larry King, and Mr Rod Barnett, which sought various relief arising out of the Law Society’s refusal to grant the plaintiff an unrestricted practising certificate in September 2008. These proceedings were struck out and dismissed by Refshauge J on 29 June 2012: Ezekiel-Hart v Law Society of the Australian Capital Territory [2012] ACTSC 103.
127․A reading of his Honour’s judgment reveals how similar the allegations made in those proceedings were to the allegations made in the proceedings before me.
128․The basis of all the allegations was the refusal of the Society to grant the plaintiff a practising certificate. Allegations were made generally to the effect that the Society breached its duty of care to the plaintiff (although how was obscure), that the plaintiff was the subject of discrimination, and that his human rights were breached.
129․As recorded by Refshauge J at [127], allegations were made that the then second defendant (who is the second defendant before me) had engaged in conduct:
…that was “fraudulent, conscious [sic] and contumacious ... in total disregard to applicant (sic] Common law right, Statutory and Constitutional protected rights”.
130․Refshauge J observed at [127]-[129] that such allegations were very serious, unspecific, unsupported by any material facts, and thus failed to be pleaded with the specificity that the law required.
131․In relation to the claim for discrimination, Refshauge J said at [66]:
The Discrimination Act does not give Mr Ezekiel-Hart any remedy. Section 72 of that Act provides that the Act “does not give a person any right of action in relation to the doing of an act that is unlawful” under any conceivably relevant provision of the Act.
132․In relation to the claim under the Human Rights Act 2004 (ACT) (the HRA), Refshauge J said at [67]:
Finally, the s 40C(4) of the Human Rights Act provides that the Supreme Court may not make an award for damages in granting any relief under that Act.
133․Refshauge J, at [80], endorsed the observation of Gray P in Ezekiel-Hart v The Law Society of the Australian Capital Territory [2010] ACTCA 6 at [6] (quoted above), and said:
I respectfully endorse those comments with which I entirely agree and consider that they apply accurately to the current Statement of Claim.
134․At [81], his Honour observed about the plaintiff:
Not only does the drafting of the Statement of Claim reflect poorly on the legal ability of Mr Ezekiel-Hart, the oral and written submissions he made did not disclose such an understanding of the law or of advocacy as would be expected in the holder of an unrestricted practising certificate. The submissions were replete with irrelevant material and citations from authority taken out of context or unsupportive of any relevant proposition.
135․Having had the plaintiff appear before me more than once (although not on the hearing of this application), and having received some written material from him, I make the same observations about the plaintiff.
136․His Honour said at [116]-[117]:
In this case, the following relevant matters are important:
(1) despite attempts to appeal against the decision of the learned Chief Justice, to strike out the Statement of Claim, Mr Ezekiel-Hart has not been successful;
(2) the learned Chief Justice subsequently refused to set aside his order striking out the Statement of Claim, notwithstanding that it had been made ex parte;
(3) I have independently found that the current Statement of Claim discloses no reasonable cause of action; and
(4) I have also found that the causes of action pleaded in the current Statement of Claim are relevantly identical to causes of action pleaded in the Statement of Claim struck out by the learned Chief Justice.
In my view, these matters inevitably lead to the conclusion that the present proceedings are an abuse of process.
137․Given his Honour’s finding that the Statement of Claim disclosed no reasonable cause of action and was an abuse of process, and his Honour’s other findings that I have referred to above, I find that those proceedings were vexatious in that they lacked reasonable grounds.
138․In addition, assessed objectively, the proceedings were brought for an ulterior purpose, namely, to re-agitate matters which had previously been determined in proceedings #1.
Proceedings #7 – vexatious
139․On 16 July 2012, the plaintiff filed a notice of appeal (ACTCA 68 of 2012) in the Supreme Court of the ACT in respect of the orders made by Refshauge J in Ezekiel-Hart v The Law Society of the ACT [2012] ACTSC 103. These proceedings were stuck out as incompetent by Penfold J on 26 October 2012, with an order for indemnity costs.
140․Given the orders made, in the context of the decision at first instance by Refshauge J, and the contents of the Notice of Appeal, I find that this appeal was vexatious in that it lacked reasonable grounds. The appeal was so lacking in merit that Penfold J ordered indemnity costs.
Proceedings #8 – not vexatious
141․On 18 July 2012, the plaintiff commenced proceedings in the Federal Circuit Court of Australia (CAG 53 of 2012) against the Law Society, Mr Robert Reis, Mr Larry King, and Mr Rodney Barnett, seeking that a bankruptcy notice be set aside. That application was dismissed by the Registrar on 9 August 2012, with costs. No reasons were provided.
142․I am not satisfied that those proceedings were vexatious. There is no evidence that the purpose of those proceedings was to harass or annoy, to cause delay or was brought for some other ulterior purpose, or that they lacked reasonable grounds.
Proceedings #9 – vexatious
143․On 26 November 2012, the plaintiff commenced proceedings in the Federal Court of Australia (ACD 86 of 2012) against the Law Society, Mr Robert Reis, Mr Larry King, and Mr Rod Barnett, seeking various forms of relief arising from the Law Society’s refusal to grant the plaintiff an unrestricted practising certificate in September 2008.
144․That application was dismissed by Foster J on 25 March 2013 as an abuse of process, with an order for indemnity costs: Ezekiel-Hart vLaw Society of the Australian Capital Territory [2013] FCA 257.
145․Relevantly, his Honour said:
[60] Although there has been no trial in the ACT Supreme Court of the case which Mr Ezekiel-Hart seeks to have determined, that court has nonetheless determined that his fundamental complaint does not give rise to any arguable cause of action. That is the matter which has been twice determined against him. Given that I have come to the conclusion that the case which he seeks to litigate in this court is, in substance, the same case, it follows that the ACT Supreme Court has twice determined that the case which Mr Ezekiel-Hart seeks to litigate in this court has no prospects of success.
[61] In my judgment, although there has been no trial “on the merits”, the principles explained by French J in Spalla apply with equal force in the circumstances of the present case. It is an abuse of the processes of this court for Mr Ezekiel-Hart to engage this court’s jurisdiction for the purpose of relitigating a case which the ACT Supreme Court has twice held ought to be summarily dismissed because it has no prospect of succeeding.
[62] For these reasons, I propose to dismiss the whole of the present proceeding as an abuse of the process of this court.
…
[67] The respondents seek an order that their costs should be paid on an indemnity basis. I think that the respondents are entitled to have their costs assessed on that basis. The present case should never have been brought. It was bound to fail. In those circumstances, an indemnity costs order is warranted.
(Emphasis added.)
146․Given his Honour’s findings that I have set out above, and having considered the balance of his Honour’s judgment, I find that those proceedings were vexatious in that they lacked reasonable grounds.
147․Alternatively, they were brought for an ulterior purpose, which was to relitigate issues that had previously been determined in proceedings #1 and #6.
Proceedings #10 – vexatious
148․On 31 May 2013, the plaintiff commenced proceedings in the Federal Court of Australia (ACD 55 of 2013) seeking leave to appeal, and an extension of time within which to seek that leave, from the orders of Foster J in Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] FCA 257.
149․On 26 July 2013, Yates J dismissed the application, with costs: Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] FCA 725. His Honour said at [43]:
In my view, there is no real prospect that the applicant would be able to sustain any of the draft grounds of appeal.
150․It is relevant to consider Yates J’s observations at [38]:
There has been a judicial disposition of the controversy between the parties by the Supreme Court’s dismissal of the 2009 proceeding and, separately, of the 2011 proceeding. The applicant’s pleaded case, in each proceeding, disclosed no reasonable cause of action. In the 2011 proceeding, Refshauge J gave detailed consideration to the applicant’s pleaded claims and was satisfied that they could not be maintained. The applicant availed himself of avenues of appeal in each proceeding. He was unsuccessful in that pursuit. The applicant appears incapable of accepting these rulings, even though, as a legal practitioner with an unrestricted practising certificate, he should well-understand the nature and legal significance of them. The controversy embodied in the 2009 proceeding and the 2011 proceeding has been quelled as a matter of law. It did not require a hearing on the merits in order for it to be quelled. The applicant cannot now improve his position by simply “switching courts” to embark upon yet another attempt to litigate the same controversy. In my respectful view, the primary judge was correct to find that the commencement of the proceeding in this court in an attempt to relitigate the same controversy was an abuse of the court’s process.
151․Given his Honour’s observations that I have set out above, and having considered the balance of his Honour’s judgment, I find that that application for leave to appeal lacked reasonable grounds.
152․Alternatively, given his Honour’s observations quoted above, the application for leave to appeal was brought for an ulterior purpose, which was for the purpose of being able to relitigate issues that had previously been determined in proceedings #1 and #6.
364․Rule 406(1)(b) of the Rules requires (“must”) pleadings to contain a statement in a summary form of the material facts on which the party relies.
365․Rule 430 of the Rules requires (“must”) pleadings to include particulars necessary to define the issues for, and prevent surprise at, the trial, and to enable the opposite parties to identify the case that the pleading requires those parties to meet.
366․This pleading does not comply with those mandatory requirements in relation to the serious allegations made, or at all. It will be struck out.
367․The plaintiff did not appear on the applications and made no application in person or otherwise that he be given leave to replead. In any event, I am satisfied that no viable amended statement of claim would be produced even if the plaintiff were given leave to replead.
368․In my view the plaintiff lacks insight, lacks any ability to examine past events rationally and objectively, and lacks any ability to separate legal causes of action, and their elements, from his emotionally charged views and conclusions arising from past events.
369․In those circumstances, I will not grant leave to replead.
Summary judgment - Law Society defendants
The issues and consideration
370․The Society sought summary judgment in addition to an order striking out the statement of claim. It did so on two bases: first, if the statement of claim were struck out and there was no leave granted to replead; second, as an alternative to the strike out application.
371․As to the first basis, the Society relied on Mulcahy v Registrar-General, Office of Regulatory [2013] ACTSC 63 (Mulcahy), in which Harper M ordered summary judgment for the defendant where a statement of claim had been struck out for want of proper particularisation and where there was no grant of leave to replead.
372․In circumstances where I will order the statement of claim to be struck out, and where there is no leave granted to replead, I should follow Mulcahy and order summary dismissal pursuant to s 1147(2)(c) of the Rules (set out below) so that the proceedings are brought to an end.
373․In relation to the second basis, the Society relied on r 1147(2)(a) and (c) of the Rules.
374․Rule 1147 of the Rules says:
1147 Summary judgment—for defendant
(1)A defendant may apply to the court for summary judgment against a plaintiff at any time after filing a notice of intention to respond or defence.
…
(2)The court may give judgment for the defendant against the plaintiff for the plaintiff’s claim for relief (or part of it) if satisfied—
(a)that the claim (or part of it) is frivolous or vexatious; or
(b)that there is a good defence to the claim (or part of it) on the merits; or
(c)that the proceeding should be finally disposed of summarily or without pleadings.
(3)The court may make any other order it considers appropriate.
…
375․The oft-cited authority for summary judgment under this rule in the ACT is Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132; 19 ACTLR 238 (Galovac), in which Jagot J said at 239 [5]:
There was no dispute about the principles that apply:
(1) The party seeking summary judgment faces a “very high threshold” (Financial Integrity Group Pty Ltd v Farmer [2009] ACTSC 143 at [12]).
(2) The lack of a cause of action must be “clearly demonstrated” (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129).
(3) The procedure calls for “exceptional caution” (General Steel at 129).
(4) The necessity for argument, even extensive argument, is no bar. However, as soon as it appears that there is a “real question” to be determined on which relief depends, the summary judgment procedure is not available (General Steel at 130 citing Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91).
(5) Mere implausibility of the claim or improbability of success is insufficient; there must clearly be no real question to be tried in the sense that the claim is bound to fail (Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686 at [14] citing Lonrho plc v Fayed (No 2) [1992] 1 WLR 1 (Ch D) at 5; [1991] 4 All ER 961 at 965).
(6) The application is to be assessed on the assumption that every fact pleaded by the plaintiff is true (West v New South Wales [2007] ACTSC 43 at [9]).
(7) The application must be determined on the substance, not the mere form or expression, of the claim (Financial Integrity Group at [15]).
376․In relation to r 1147(2)(a) of the Rules, the Society relied on the decision in Re Cameron [1996] 2 Qd R 218 (Re Cameron) at 220, where Fitzgerald P said:
It is also necessary to decide what makes legal proceedings vexatious. Although there are sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court’s practices, procedures and rulings, persistent attempts to use the court’s processes to circumvent its decisions or other abuse of process, the wastage of public resources and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis…
(Citations omitted.)
377․The Society submitted that the above passage was quoted with approval by Mossop J in Jorgensen v Wilson (No 2) [2023] ACTSC 40. I disagree.
378․I do not accept the Society’s submission that the test to apply to “vexatious” in
r 1147(2)(a) of the Rules is that set out in Re Cameron.379․Re Cameron was a case concerned with the Vexatious Litigants Act 1981 (Qld) and the meaning of the word “vexatious” in s 3(1), namely whether a person had “frequently and without reasonable ground instituted vexatious legal proceedings”.
380․Mossop J did not hold, expressly or impliedly, that Re Cameron applied to the word “vexatious” in r 1147(2)(a) of the Rules. All his Honour was doing when setting out the quote from Re Cameron relied on by the Society was noting the defendants’ submission. The relevant paragraphs of his Honour’s judgment relied upon, being [32]-[33], appear under the heading “The grounds relied on by the defendants”.
381․Ultimately, his Honour did not need to decide that submission. Mossop J noted at [34] that the approach of the defendants was to treat vexatious proceedings and proceedings amounting to an abuse of process as being generally interchangeable concepts. At [53], Mossop J decided that the proceedings amounted to an abuse of process as a result of their lack of merit and the extent to which they sought to relitigate matters the subject of previous proceedings.
382․“Vexatious” in r 1147(2)(a) of the Rules has a different meaning to “vexatious” in s 67A of the SCA.
383․In r 1147(2)(a) of the Rules, the word “vexatious” has the meaning described by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (General Steel Industries) at 129-30. The full passage needs to be read to place the word “vexatious” in its proper context.
384․Barwick CJ said:
I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action—if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal—is clearly demonstrated. The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or “so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”; “so to speak apparent at a glance”.
As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners where he says: “A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.” Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.
(Citations omitted, emphasis added.)
385․That is, in terms of r 1147(2)(a) of the Rules, the Court may give judgment for the defendant against the plaintiff for the plaintiff’s claim for relief (or part of it) if satisfied that the claim is “vexatious” because, to summarise what Barwick CJ said in General Steel Industries, it is so obviously untenable that it cannot possibly succeed, is manifestly groundless, is so manifestly faulty that it does not admit of argument, it discloses a case which the Court is satisfied cannot succeed, that under no possibility could there be a good cause of action, or if it was manifest that to allow the pleadings to stand would involve useless expense.
386․“Vexation”, as relied upon by the Society, is a question of abuse of process under the Court’s inherent jurisdiction rather than under r 1147(2)(a) of the Rules.
387․Although I have not accepted the Society’s construction of r 1147(2)(a), I should nevertheless consider the application based on that rule (properly construed) and the other rule relied upon, namely r 1147(2)(c) of the Rules.
388․The Society advanced six submissions as to why summary judgment should be granted.
389․First, it submitted that the evidence would persuade me that the plaintiff had commenced the proceedings for an illegitimate purpose, namely to disrupt the Law Society’s consideration of an outstanding complaint made against him, and the conduct of any disciplinary proceedings resulting from the complaint, to use these proceedings as leverage against the Law Society to have the complaint and any resulting the disciplinary proceedings dismissed, and/or otherwise to launch a collateral attack on the complaint and any disciplinary proceedings.
390․Second, the Society submitted that the statement of claim demonstrated the plaintiff’s steadfast refusal to comply with the Rules, the authorities, the practices of the Court and the ethical obligations imposed on lawyers in relation to pleading allegations of serious impropriety.
391․Third, the Society submitted that the plaintiff's inability to particularise his allegations of serious impropriety and his unwillingness to do so compels an inference that he has no reasonable grounds to make those allegations.
392․Fourth, the Society submitted that the plaintiff's repeated use of court processes to make allegations of serious improper conduct against the Society, without being able to particularise or substantiate such allegations, is an abuse of process.
393․Fifth, the Society submitted that the plaintiff's claim is also an abuse of process to the extent that it arises from the exercise of functions under the LPA. The Society pointed out that s 587A(1)(a) of the LPA provides that a person is not civilly liable for anything done or omitted to be done honestly and without recklessness in the exercise of a function under the LPA or in the reasonable belief that the act was in the exercise of a function under this LPA.
394․The Society submitted that the plaintiff was required to clearly plead the material facts relied upon as to why s 587A of the LPA did not apply. The Society submitted that the plaintiff had not done so, despite having previously been informed of this requirement: see Ezekiel-Hart v Council of the Law Society of the ACT [2022] ACTSC 300 at [57]-[59].
395․Sixth, the Society submitted that the statement of claim made allegations of serious misconduct against the persons comprising the Law Society and other persons associated with the Society. In the modern era, the courts are astute to recognise the strain and inconvenience which litigation places on individuals: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 per Gummow, Hayne, Crennan, Kiefel and Bell JJ at 214 [100]-[101]. That strain and inconvenience becomes more egregious when the litigation involves allegations of serious impropriety without proper particularisation in the manner required by the rules and practices of the Court and the ethical obligations of lawyers in making allegations of grave impropriety. It is even more egregious in the present circumstances where certain persons against whom such allegations are made were also faced with allegations of the same nature in proceeding SC 239 of 2020 (proceedings #23 above).
396․I am satisfied on the evidence that the plaintiff commenced these proceedings for the illegitimate purpose identified and generally for the reasons I have given under the heading “Proceedings #35 (The present proceedings) – vexatious” above.
397․It is apparent to me that the plaintiff genuinely feels wronged in various ways, and genuinely holds the belief that his litigation will provide him with vindication. But those feelings and beliefs are entirely misplaced, and the plaintiff lacks any objective legal and factual insight into the causes of his present situation, and he seeks to attack the Society by commencing these proceedings, but not for the purpose of vindicating in a legitimate way whatever legal rights he may have.
398․As stated in Galovac, I must decide this application for summary dismissal on the substance of the plaintiff’s claim, not its form. I must assess the application on the assumption that every fact pleaded by the plaintiff is true. I may only order summary judgment if the claim is bound to fail and may not dismiss the application if the plaintiff’s claim is merely implausible or improbable. I may only order summary judgment if I, exercising exceptional caution, consider the lack of a viable claim is clearly demonstrated.
Decision
399․In my view, summary dismissal is justified.
400․The contents of the statement of claim amount to a diffuse smorgasbord of overlapping allegations of fraud of various kinds (some involving allegations against persons not named in substantive paragraphs of the pleading) which lack any (required) material facts, contain claims which are fundamentally flawed, and are based upon an erroneous understanding of relevant legal principles. Many paragraphs are conclusory or completely unspecific as to when and in what way the alleged acts of dishonesty occurred.
401․Those matters, together with the ulterior purpose identified, lead me to conclude that these proceedings are an abuse of process.
402․As I have found earlier, the statement of claim is wholly defective and does not comply with the Rules.
403․I note that the ACT defendants made an oral application for summary judgment at the hearing of the application. I did not allow that application to be made in the absence of any notice of that application being given to the plaintiff. Be that as it may, as I will order the removal of those defendants from the proceedings, they need no further relief.
Removal application – Attorney-General and the DPP
The issues and consideration
404․The ACT defendants sought an order pursuant to r 230 of the Rules that they be removed as parties to the proceeding.
405․Rule 230 of the Rules says:
230 Removing parties
(1)The court may order that a person be removed as a party to a proceeding if the person—
(a)has been inappropriately or unnecessarily included as a party; or
(b)has stopped being an appropriate or necessary party.
(2)The court may make an order under this rule—
(a)at any stage of the proceeding; and
(b)on application by a party to the proceeding or on its own initiative; and
(c)whether the person to be removed is a plaintiff or defendant.
…
406․The ACT defendants submit that they are unable to discern any allegations of material facts made against them nor are they able to distinguish such facts to the extent that any of the allegations relate to the ACT defendants.
407․I agree.
408․Paragraph 8 of the preamble to the statement of claim pleads that the ACT defendants:
[A]dminister the law under which the Law Society of the Australian Capital Territory operate and or to keep the peace arising from operation of the law, a public body and instrumentality of the Australian Capital Territory.
409․There are no subsequent paragraphs alleging any material facts or identifiable cause of action against those defendants.
410․There are some generalised statements (which include all defendants) to the effect that the defendants (as a group) weaponised their regulatory powers to allegedly do various things, but those statements do not amount to proper pleadings as they do not comply with, inter alia, rr 406(1)(b) and 430 of the Rules.
Decision
411․I find that the ACT defendants have been inappropriately and, alternatively, unnecessarily, included as parties to the proceedings, and will order that they be removed.
Vexatious litigant application
Section 67A of the SCA
412․Section 67A of the SCA says:
67A Vexatious litigants
(1)In this section:
aggrieved person, in relation to proceedings, means a person aggrieved by the institution of those proceedings.
proceedings means any cause, matter, action, suit or proceeding of any other kind within the jurisdiction of any court or tribunal and includes any proceeding taken in connection with any such legal proceedings pending before any court or tribunal.
vexatious proceedings means proceedings—
(a)the purpose of which is to harass or annoy, to cause delay or for some other ulterior purpose; or
(b)that lack reasonable grounds.
(2)If, on the application of the Attorney-General or an aggrieved person, the court is satisfied that a person has frequently instituted vexatious proceedings, the court may declare the person to be a vexatious litigant.
(3)A declaration may be expressed to apply only in relation to a particular type of matter.
(4)A declaration may be expressed to be subject to the conditions the court considers appropriate.
(5)If a person is declared to be a vexatious litigant—
(a)the person, or a person acting in concert with the person, shall not institute or continue any proceedings or, for a declaration expressed to apply only in relation to a particular type of matter, proceedings of that type, without the leave of the court; and
(b)any proceedings pending at the time of the declaration or, for a declaration expressed to apply only in relation to a particular type of matter, proceedings of that type, are stayed subject to any order of the court in relation to those proceedings.
(6)If the court gives leave to a person for subsection (3) (a), it may impose the conditions it considers appropriate.
(7)Conditions imposed under subsection (4) in relation to proceedings may include conditions—
(a)relating to security for costs in the proceedings; and
(b)specifying matters relating to the issue of process in the proceedings.
(8)Unless expressed to remain in force until the end of a date specified in the declaration, a declaration remains in force until revoked by the court.
(9)The court may vary a declaration.
(10)Subject to any order of the court, a declaration, or a variation or revocation of a declaration, is a notifiable instrument.
Note Power to make a notifiable instrument includes power to make different provision in relation to different matters or different classes of matters, and to make an instrument that applies differently by reference to stated exceptions or factors (see Legislation Act, s 48).
(11)If proceedings are instituted by a person in contravention of this section, the proceedings shall be taken to have been permanently stayed.
(12)If practicable, any documents filed or lodged with a court or tribunal by a person in proceedings referred to in subsection (9) shall be returned to the person by the registrar or similar officer of a court or tribunal.
(13)Notwithstanding subsection (3), a person declared to be a vexatious litigant may, without the leave of the court, apply to the court for the revocation or variation of the declaration or of any conditions to which the declaration is subject.
413․Subsections (3) and (4) of s 67A have since been omitted, and subsection (10) varied in an immaterial way, on and from 11 December 2023: Justice and Community Safety Legislation Amendment Act 2023 (No 3) (ACT).
414․I have earlier mentioned various relevant principles to be applied.
415․I have identified the proceedings relied on by the Society and made findings which of those were vexatious.
416․I now must determine whether the plaintiff has frequently instituted or conducted vexatious proceedings and, if the answer to that question is in the affirmative, determine the manner in which the discretion granted by s 67A is to be exercised (if at all).
Frequency
417․As to frequency, McWilliam AsJ said in Reis at [98]:
The statutory term ‘frequently’ is a relative term and must be looked at in the context of the litigation being considered: Wilson at [12]–[14]. The issue is not to be assessed merely by an arithmetic calculation: Viavattene at [49] per Leeming JA. The number of proceedings considered may be small if the proceedings are an attempt to re-litigate an issue already determined against the person. The court must examine the nature of the applications to determine whether they are simply a consequential aspect of the original proceedings, or something different. The court may be more willing to conclude that vexatious proceedings are brought frequently where the proceedings are brought against the same person or involve the same subject matter: see Wilson at [12]; Croker at [22]; Attorney General v Gargan at [7]; Siteberg v Maples [2010] NSWSC 1344 (Maples) at [31]–[32]; and Potier at [114]–[118].
418․That passage was quoted with apparent approval by Mossop J in Jorgensen v Wilson (No 2) [2023] ACTSC 40 at [57].
419․In Potier, Leeming JA, with whom Basten and Meagher JJA agreed, held at [114]-[120] that “frequently” was a “relatively low threshold”. Leeming JA went on to hold that the proportion of proceedings instituted by a person being found to be vexatious was not relevant to whether the threshold condition was satisfied, but that proportion was highly relevant to the exercise of discretion to make an order. I agree the same principle should apply to s 67A of the SCA for the reasons his Honour gave.
420․In this case, I find that the plaintiff has frequently instituted vexatious proceedings.
421․Out of a total of 38 proceedings relied upon, I have found that 25 were vexatious proceedings and one proceeding was partly vexatious. I shall ignore the partially vexatious proceeding in what follows.
422․Out of the 33 proceedings in which the first defendant (the Law Society) was a party, I have found that 24 were vexatious (being proceedings #6, #7, #9-14, #17-19, #21, #23, #25-28, #30, #31, #33-36 and #38). Various Presidents of the Law Society were parties to 13 of those vexatious proceedings (out of a total of 19 proceedings in which a Law Society President was a party). Staff of the Law Society were parties to 19 of the vexatious proceedings (out of a total of 27 proceedings in which they were named as parties).
423․Out of the proceedings I have found to be vexatious, 22 of them (being proceedings #6, #7, #9-14, #17-19, #21, #23, #25-28, #30, #31 and #33-35) involved the plaintiff attempting to litigate his complaints about the Law Society’s refusal to grant him one or more practising certificates, including appeals and applications for leave to appeal. The present proceedings are the latest proceedings in which the plaintiff seeks to air his perceived grievances stemming from those foundational events.
424․In my view, those proceedings demonstrate that the plaintiff has frequently instituted vexatious proceedings, many of which concerned the same foundational facts, and which gave rise to the plaintiff’s perceived grievances.
Discretionary factors
425․The plaintiff elected not to appear to put any submissions against the application.
426․Notwithstanding that non-appearance, the making of a vexatious litigant declaration curtails an important liberty enjoyed by all citizens. As Kirk JA said in Collier at [61]:
Being able to access courts to assert legal rights and claim legal remedies is a fundamental legal liberty: note eg Williams v Spautz (1992) 174 CLR 509 at 519; [1992] HCA 34. In Potier Leeming JA described it as an “important civil right” (at [48]), and Basten JA spoke of “the important principle of open access to justice” (at [17]).
427․Having said that, as Kirk JA further observed in Collier at [61]:
That legal liberty is capable of regulation and restriction, and it is clear that the Act is directed to doing so.
428․In Gargan (No 2) Perram J set out some general principles relevant to the exercise of the discretion. His Honour said:
[2] A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established. First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made.
[3] Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the court itself, whose limited resources needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.
[4] Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this court or in other Australian courts.
[5] Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent.
[6] Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
[7] Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
[8] Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant’s conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.
[9] Eighthly, each of these notions — the want of reasonable grounds, habitual institution and persistent institution — are to be gauged objectively. But this does not mean that a litigant’s own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.
[10] Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto — so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).
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[12] Finally, once it is concluded that the court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest — although not determine — a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.
Decision
429․In my view, the plaintiff should be declared to be a vexatious litigant.
430․The plaintiff has frequently commenced vexatious proceedings, most of which concern the Society’s refusal to grant him practising certificates.
431․The plaintiff has never exercised his right of appeal from such decisions under s 81 of the LPA, but has elected instead to make multiple, serious, and florid claims against the Society involving allegations ranging from racial discrimination, defamation, abuse of power, fraud, and alleged breaches of the plaintiff’s human rights. Those claims have all been struck out and dismissed, many for reasons relating to substantive defects in the pleadings and the inability to properly plead such claims in a way which fairly identifies the case the defendants were supposed to meet.
432․Along the way, the plaintiff has joined Presidents of the Society, some of its officers and solicitors, and occasionally the Attorney-General, the DPP and other agencies on some supposed basis of oversight of the Society’s actions.
433․As observed by Neville J, Refshauge J, Yates J, Crowe AJ, Murrell CJ, Kennett J, Berman AJ, and McCallum CJ, amongst others, the plaintiff has commenced many proceedings which lacked reasonable grounds (expressed in different ways).
434․The plaintiff lacks any insight, lacks any objectivity, and refuses to accept the finality of litigation. Unless stopped, I anticipate the plaintiff will continue to attempt to air the same or much the same grievances again in the same (largely incomprehensible) manner as he has to date. His zeal to right perceived wrongs illustrates a lack of insight into his own actions in repetitively litigating matters where there is no reasonable ground for doing so.
435․In my view, the defendants (and particularly the Law Society defendants) and the Court (by which I mean other litigants waiting for their cases to be heard), should be protected by the making of a declaration that the plaintiff is a vexatious litigant.
436․I have given some thought to whether the order should be temporary (as suggested by Basten JA in Potier at [18]). But the plaintiff has been litigating many of the same issues since 2009 and shows no sign of stopping. In those circumstances, I will not make the order temporary. I note that in Collier at [82], the NSW Court of Appeal did not regard it as erroneous to fail to make the order temporary in similar circumstances of many years of litigation.
437․Costs should follow the event.
Orders
438․I make the following orders:
(1)The statement of claim is struck out.
(2)Judgment is entered in favour of the first to sixth defendants against the plaintiff.
(3)The seventh and eight defendants are removed as parties to the proceedings.
(4)I declare that Mr Emmanuel Ezekiel-Hart is a vexatious litigant.
(5)The plaintiff is to pay the defendants’ costs of the applications and of the proceedings.
| I certify that the preceding four hundred and thirty-eight [438] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin Associate: Date: |
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