Ezekiel-Hart v The Council of the Law Society of the Act (No 8)

[2025] ACTSC 394

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Ezekiel-Hart v The Council of the Law Society of the ACT (No 8)

Citation: 

[2025] ACTSC 394

Hearing Date: 

6 March 2025

Decision Date: 

2 September 2025

Before:

Burns AJ

Decision: 

(1)    The application is dismissed.

(2)    The plaintiff is to pay the defendants’ costs of the application as agreed or assessed on a party/party basis unless an application is made for a different order within 14 days of the publication of these orders and reasons.

Catchwords: 

CIVIL LAW – PRACTICE AND PROCEDURE – Vexatious Litigant – Plaintiff declared a vexatious litigant – application to set aside orders which declared the plaintiff as a vexatious litigant – consideration of legislative intention regarding nature of applications under s 67A(11) of the Supreme Court Act 1933 (ACT)

Legislation Cited: 

Charter of Human Rights and Responsibilities Act 2006 (Vic), s 24

Human Rights Act 2004 (ACT), ss 21, 28, 30, 32, Pts 3, 3A

Legal Profession Act 2006 (ACT)

Legislation Act 2001 (ACT), ss 138, 139(1), 140, 141(1), 142

Supreme Court (Amendment) Act (No 2) 1998 (ACT), s 6

Supreme Court (Amendment) Bill (No 3) 1998 (ACT)

Supreme Court Act 1933 (ACT), ss 37E(4), 67A(2), 67A(3), 67A(11)

Supreme Court Act 1986 (Vic), s 21

Vexatious Litigants Act 1981 (Qld)

Vexatious Proceedings Act 2008 (NSW), s 9

Cases Cited: 

Attorney-General for the State of Victoria v Kay [2009] VSC 337

Blair v Curran [1939] HCA 23; 62 CLR 464

Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44

Ebert v Official Receiver [2001] EWCA Civ 340; [2002] 1 WLR 320

Ezekiel-Hart v Council for the Law Society of the Act [2024] ACTCA 2

Ezekiel-Hart v The Council of the Law Society of the ACT(No 7) [2024] ACTSC 12

Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630

Hoystead v Commissioner of Taxation [1925] HCA 51; 37 CLR 290

Jorgensen v Wilson [2023] ACTCA 45; 383 FLR 312

Kay v Attorney-General (Vic) [2000] VSCA 176; 2 VR 436

O'Toole v Charles David Pty Ltd [1991] HCA 14; 171 CLR 232

Proietti v Proietti [2025] NSWCA 11

R v Inhabitants of the Township of Hartington Middle Quarter (1855) 4 E. & B. 780; 119 ER 288

Re Skyring [2013] QSC 197

Texts Cited:

JD Heydon, Cross on Evidence (online, LexisNexis, 2025)

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)

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

Representation: 

Counsel

Self-represented ( Plaintiff)

D Moujalli with N Olson ( First to Sixth Defendants)

Solicitors

Self-represented ( Plaintiff)

Thomson Geer ( First to Sixth Defendants)

File Number:

SC 139 of 2023  

BURNS AJ:   

1․On 2 February 2024, Curtin AJ made an order declaring the plaintiff a vexatious litigant pursuant to s 67A(2) of the Supreme Court Act 1933 (ACT) (SCA) (the declaration). By an application dated 5 June 2024 the plaintiff seeks the following relief:

“That where required leave be granted to review the decision and orders of the Honourable Acting Justice Curtin on 2 February 2024 in SC139 of 2023 pursuant to section 67A(11) SCA 1933”.

2․The grounds of the application as pleaded are sometimes expressed in scandalous or offensive terms alleging racial discrimination against him.  In substance, the grounds are:

(a)Substantial injustice has been done to the plaintiff by the making of the declaration which was made in his absence in circumstances where he was sick. This injustice has already manifested in the rejection of an application for judicial review and the rejection of an internal appeal in the ACT Administrative Tribunal (ACAT).

(b)The effect of the declaration is to deprive the plaintiff of his human rights to seek redress on matters where he is entitled to redress.

(c)The declaration was sought for the ulterior motive of frustrating the plaintiff’s right to a fair hearing in the ACAT.

(d)The declaration was sought without the leave of the Court in circumstances where the Court had rejected the application for the same relief by the same parties.

(e)The declaration denied the plaintiff “incidental equity” vis a vis the defendants because they can seek redress from the courts without obtaining leave to commence proceedings and he cannot.

(a)There are questions of law to be answered in the public interest in the application.

(b)The First, Second, Third, Fourth, Fifth and Sixth defendants “failed to comply with the public interest requirement in the rule to answer specifically in response to the Court document to Notice to Admit Facts, and in my absence may have not addressed the Court appropriately about the Notice to Admit Facts under rule 491”.

3․The plaintiff is a legal practitioner, albeit that he has not held a practising certificate for some time.  He was admitted to practise in 2003.  He has been engaged in litigation against the Law Society, members of that Society, lawyers acting on behalf of the Society, officers of the Society and diverse others since 2009, often attempting to relitigate issues that have been authoritatively determined in earlier proceedings.  The history of the plaintiff’s claims is referred to in the judgment of Curtin AJ: Ezekiel-Hart v The Council of the Law Society of the ACT (No 7) [2024] ACTSC 12.

4․In the present proceeding, as in that before Curtin AJ, the plaintiff is not represented by a legal practitioner.  He is self-represented.  It is a curious feature of the plaintiff’s approach to litigation, particularly in the light of him being a trained lawyer, that he does not ordinarily seek to utilise any right of appeal that he may have from a decision that does not go in his favour; he simply commences new proceedings.  As will be seen, the plaintiff did commence proceedings in the Court of Appeal which had the appearance of seeking to appeal from the decision of Curtin AJ but regarding which the plaintiff disavowed any intention to exercise any right of appeal or to seek leave to appeal.

5․The present application filed by the plaintiff is filed in proceeding SC 139 of 2023, being the proceeding in which Curtin AJ made the declaration. The effect of the declaration is, subject to the provisions of s 67A(11), that the plaintiff is not permitted to continue those proceedings without the leave of the Court.

6․The evidence relied upon by the plaintiff in this application are affidavits affirmed by him on 30 August 2024 and 31 January 2025.  Those affidavits are prolix and largely legally incoherent.  What does emerge from the affidavits, however, is the plaintiff’s abiding belief that a wrong has been done to him by the Law Society and others involved in the decisions of the Law Society not to grant him a practising certificate.  Much of the plaintiff’s affidavits is given over to reiterating complaints made by him in earlier unsuccessful litigation and regarding the circumstances in which the declaration was made.  

7․In addition, the plaintiff tendered three volumes of documents, most of which were only relevant to the merits of the applicant's long-standing dispute with the defendants in general, and the Law Society in particular. For the reasons that follow, those documents were largely irrelevant.

8․While the relief sought by the plaintiff in the present proceeding is expressed to be for leave to commence proceedings under s 67A(11) of the SCA, it is accepted by the defendants that no leave is required by the plaintiff to commence such proceedings. The parties approached the hearing before me as a hearing of the substantive merits of the application to review the declaration. The significant issue between the parties is the legislative intention regarding the nature of an application for revocation of a declaration as permitted by s67A(11) of the SCA.

9․It is convenient at this point to set out the terms of s 67A of the SCA:

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)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.

(4)If the court gives leave to a person for subsection (3) (a), it may impose the conditions it considers appropriate.

(5)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.

(6)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.

(7)The court may vary a declaration.

(8)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).

(9)If proceedings are instituted by a person in contravention of this section, the proceedings shall be taken to have been permanently stayed.

(10)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.

(11)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.

10․The effect of being declared a vexatious litigant is, relevantly for present purposes, that the plaintiff cannot institute or continue any proceedings without the leave of the Court. Any proceedings pending at the time of the making of the declaration were stayed subject to any order of the Court: s 67A(3) of the SCA.

11․It is clear from the terms of s 67A(11) that an application for revocation or variation of a declaration that a person is a vexatious litigant may be made without the leave of the Court. The issue of substance which has arisen in the present application is the scope of such an application; in particular, does it require or permit the Court to go behind the declaration and make an independent assessment of the plaintiff’s conduct relied upon in the making of the declaration and, in doing so, make its own assessment of whether the declaration should have been made. The plaintiff submits that I am required to do so, and the defendants submit that I am not permitted to do so. The defendants submit that s 67A(11) permits the Court to revoke the declaration where it is no longer required.

12․For the reasons that follow, I accept the submission of the defendants and reject that of the plaintiff.

13․The issue is one of statutory interpretation. What is the legislative intention regarding the scope of an application for revocation of a declaration as permitted by s 67A(11)? More particularly, is it open to this Court on an application to revoke a declaration under s 67A to reconsider the facts determined by the court in making the declaration and make my own determination of those facts for the purpose of making my own determination of whether a declaration should have been made?

14․Two submissions were made by the plaintiff in support of his contention. First, the terms of s 67A(11) do not on their face confine the scope of the provision to considering such an application only where there has been a change in circumstances since the declaration was made. Secondly, that the ACT is a “human rights jurisdiction” and it is open to him to come to the Court by such an application for the Court to decide whether the making of the declaration was consistent with his human rights.

15․While it has not been suggested by either party that an application for revocation under s 67A(11) is in the nature of an appeal from the decision of Curtin AJ to make the declaration, some assistance in determining the legislative intention to be found in the section may be derived from considering what avenues existed for the plaintiff to challenge the declaration made by Curtin AJ.

16․As I earlier observed, before commencing the present proceedings the plaintiff commenced proceedings in the Court of Appeal which had the appearance of being a purported appeal from the decision of Curtin AJ: Ezekiel-Hart v Council of the Law Society of the ACT [2024] ACTCA 2. I say “purported” because the notice of appeal filed by the plaintiff was not filed with the leave of the Court as required by s 67A(3)(a) of the SCA: see Jorgensen v Wilson [2023] ACTCA 45; 383 FLR 312. As noted by McCallum CJ in striking out the plaintiff’s appeal as incompetent, a declaration that a person is a vexatious litigant is an interlocutory order and pursuant to s 37E(4) of the SCA, an appeal may be brought against an interlocutory order only with the leave of the Court of Appeal. No leave was sought or granted.

17․What emerges from the ruins of this foray by the plaintiff into the Court of Appeal, however, is that the plaintiff had available to him a means of challenging the declaration that was made by Curtin AJ.  The plaintiff had a right to seek the leave of the Court to commence proceedings seeking leave to appeal from the declaration.  Undoubtedly, in both the application for leave to commence proceedings and any application for leave to appeal, the merits of the plaintiff’s contentions that he had been denied procedural fairness by the making of the declaration in his absence and his contentions regarding whether the grounds existed for the making of a declaration would have been central issues.

18․What also emerges is that the plaintiff must have been aware that this was a means available to him to challenge the making of the declaration. It is apparent that the plaintiff chose to eschew that course in favour of commencing proceedings under s 67A(11) of the SCA.

19․The availability of a conventional right of appeal (albeit subject to grants of leave) from the making of the declaration does not, of itself, establish that an application for revocation of a declaration under s 67A(11) neither requires nor permits a rehearing of the application for a declaration with a view to obtaining a different judicial ruling on the matter. The availability of a conventional right of appeal is relevant to determining the extent to which the plaintiff may have been without a means of challenging the declaration other than by an application under s 67A(11). It may be taken that the legislature was aware of this conventional means of challenging a declaration at the time it introduced s 67A of the SCA.

20․In working out the meaning of an Act, or part of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred over any other interpretation: s 139(1) Legislation Act 2001 (ACT) (Legislation Act). Under s 138 of the Legislation Act, “Working out the meaning of an Act”, or part of an Act, means:

(a)resolving an ambiguous or obscure provision of the Act; or

(b)confirming or displacing the apparent meaning of the Act; or

(c)finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or

(d)finding the meaning of the Act in any other case.

21․In working out the meaning of an Act, the Court may take into account material that does not form part of the Act: s 141(1) of the Legislation Act. This includes any Explanatory Statement of a Bill that became the Act, and the presentation speech made to the Legislative Assembly: s 142 of the Legislation Act. S 67A was introduced into the SCA by s 6 of the Supreme Court (Amendment) Act (No 2)1998 (ACT) (the amending Act). At that time, what is now s 67A(11) was s 67A(13). The Bill which became the amending Act was the Supreme Court (Amendment) Bill (No 3) 1998 (ACT) (the Bill). The Explanatory Statement accompanying the Bill is not helpful, effectively paraphrasing the terms of the Bill. The presentation speech made by the then Attorney-General is also unhelpful. In working out the meaning of s 67A(11) it is therefore necessary to take a more general approach.

22․An important function of the courts has always been the authoritative determination of the rights of individuals or entities and the resolution of disputes regarding those rights.  To that end, the common law developed principles designed to provide certainty in the outcome of litigation and finality regarding the issues litigated.  One of those principles is estoppel by record.  As the learned editors of Cross on Evidence, online ed, (Cross) acknowledge, at [5001], where such an estoppel operates to bind a party to litigation “that party is prevented from placing reliance on or denying the existence of certain facts”.

23․Cross goes on to state, at [5005]:

The principles underlying estoppel by record are interest rei publicae ut sit finis litium (it is for the common good that there should be an end to litigation) and nemo debet bis vexari pro eadem causa (no one should be harassed twice for the same cause).

24․A form of estoppel by record is issue estoppel.  The operation of issue estoppel was described by Dixon J in Blair v Curran (1939) 62 CLR 464 at pages 531-532 in these terms:

A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.  The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared.  The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

25․The principles expressed by Dixon J were by no means novel in 1939.  I will simply mention in passing that his Honour cited in support of these principles the decisions in R v Inhabitants of the Township of Hartington Middle Quarter (1855) 4 E. & B. 780 at 794; 119 ER 288 at 293, and Hoystead v Commissioner of Taxation (1926) AC 155.

26․Before making the declaration against the plaintiff, Curtin AJ was required to make determinations of fact essential to making the declaration, the most important of which was that the plaintiff had frequently instituted vexatious proceedings. This determination required other determinations of fact to be made. Regarding each proceeding considered by Curtin AJ before making the declaration, his Honour was required to determine that the proceeding was instigated by the plaintiff and that each was vexatious in the sense of lacking reasonable grounds or instigated for the purpose of harassing or annoying, to cause delay or for some other ulterior purpose.  Curtin AJ examined 38 proceedings commenced by the plaintiff and determined that 25 of them were vexatious and another was partly vexatious. These essential findings of fact, or mixed fact and law, have not been challenged on appeal, let alone set aside.

27․I noted earlier that a declaration that a person is a vexatious litigant is an interlocutory order. In my opinion, that fact does not presently affect the operation of the principles of issue estoppel. In O’Toole v Charles David Pty Ltd [1991] HCA 14; 171 CLR 232, Brennan J quoted with approval, at 260, the following passage from the judgment of Diplock LJ in Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at page 642:

Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues.  Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue.  They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined.  Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to adduce further evidence …

This is but an example of a specific application of the general rule of public policy, nemo debet bis vexari pro una et eadem causa. The determination of the issue between the parties gives rise to what I ventured to call in Thoday v Thoday [1964] P 181 an “issue estoppel”. It operates in subsequent suits between the same parties in which the same issue arises. A fortiori it operates in any subsequent proceedings in the same suit in which the issue has been determined …

28․Nothing precludes the legislature from legislating to the effect that these longstanding principles do not apply in particular circumstances. The fact that these principles are longstanding and directed towards achieving a fundamental objective of the legal system (finality in litigation) means that it would be expected that if the legislature intended to negate these principles in s 67A(11) of the SCA it would have done so in very clear words. The terms of the section do not make it clear that this was the legislative intention.

29․In interpreting a provision of an Act, the provision must be read in the context of the Act as a whole: s 140 of the Legislation Act. This means that in interpreting s 67A(11) it is necessary to consider its meaning by reference to other provisions of the SCA, including the other subsections of s 67A. There can be no argument that the legislative intention in introducing s67A was to enable this Court to stop a person who has frequently instituted proceedings for an ulterior purpose or without reasonable cause from continuing to harass the subjects of those proceedings and wasting public resources.

30․In my opinion, the interpretation of s 67A(11) advanced by the plaintiff would not only not achieve that purpose, but would, in fact, allow the provision to be utilised as a tool of oppression by vexatious litigants. If the plaintiff’s suggested interpretation of s 67A(11) were correct, he would be entitled (subject to any issue of abuse of process), without the need to seek leave, to commence serial proceedings seeking the same orders against the same defendants based on the same grounds until he was able to convince a judge to make the orders he seeks. This proposition was, indeed, warmly embraced by the plaintiff in oral argument.

31․The defendants drew my attention to a number of decisions of courts in other jurisdictions and in the ACT.  The first such decision is that of the Court of Appeal of the Supreme Court of New South Wales in Proietti v Proietti [2025] NSWCA 11 (Proietti) which addressed a cognate provision to s 67A of the SCA, being s 9 of the Vexatious Proceedings Act 2008 (NSW) (VPA) which provides, regarding vexatious proceeding orders (VPO) made against a person under that Act:

9   Order may be varied or set aside

(1)An authorised court may, by order, vary or set aside a vexatious proceedings order that the court has made.

(2)An authorised court may make the order of its own motion or on the application of—

(a)the person subject to the vexatious proceedings order, or

(b)a person referred to in section 8 (4).

(3)An application may be made by a person referred to in section 8 (4) (e) only with the leave of the authorised court.

(4)An authorised court may decline to consider an application to vary or set aside a vexatious proceedings order made by the person subject to the order if the court is not satisfied that the application is materially different from an earlier application to vary or set aside the same order that was not successful.

32․Section 9 of the VPA is similar in effect to s 67A(11) of the SCA. It permits an authorised court to “vary or set aside” a VPO made against an individual which would otherwise have the effect of requiring the individual to obtain leave of the court before commencing proceedings. I see no practical difference for present purposes between the words “revoke” and “set aside” as used in the respective statutes.

33․In a joint judgment, the Court in Proietti (Bell CJ, Kirk and Stern JJA) stated, at [20], that it “is plain” that an application to set aside a VPO “is not to be used as a means of ventilating a de facto appeal from such an order”. The Court observed that a VPO is an interlocutory order and that in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44, McLelland J said regarding interlocutory orders of a substantive nature:

[T]he ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application.

34․The next decision is that of the Court of Appeal of the Supreme Court of Victoria in Kay v Attorney-General (Vic) [2000] VSCA 176 where the Court considered the provisions of s 21 of the Supreme Court Act 1986 (Vic) as they were at that time. That provision permitted the Court to make an order declaring a person to be a vexatious litigant on grounds specified in the section. Those grounds are in effect the same provided for the making of a declaration under s 67A of the SCA. Section 21(5) of the Victorian Act provided that the Court may, at any time, set aside or revoke such an order if it considers it proper to do so. Chernov JA, with whom Ormiston and Batt JJA agreed, observed, at [23], that s 21(5) is not a substitute for an appeal from the order making the declaration, but “is confined in its operation to cases where there has been a change in the relevant circumstances since the making of the original order such as to make it appropriate that the order be varied, set aside or revoked”. This is consistent with the approach taken by Mullins J to a similar provision in the Vexatious Litigants Act 1981 (QLD): see Re Skyring [2013] QSC 197.

35․The plaintiff submitted that these decisions are distinguishable because the ACT is “a human rights jurisdiction”.  By that submission, I take the plaintiff to assert that the application of the Human Rights Act 2004 (ACT) (HRA) in the ACT dictates a different approach to the interpretation of s 67A(11) of the SCA to that taken by the Court of Appeal with regard to s 9 of the VPA in Proietti.

36․By virtue of s 30 of the HRA, I am obliged to interpret the provisions of the SCA, including s 67A, so far as it is possible to do so consistent with the purpose of the SCA, in a way that is compatible with human rights. The term “human rights” in this context means the civil and political rights in Part 3 of the HRA and the economic, social and cultural rights in Part 3A of that Act.

37․The plaintiff’s complaint, as I understand it, is that the making of the declaration interferes with his right to access courts and tribunals for the purpose of asserting his rights under law. The plaintiff has a right guaranteed by s 21 of the HRA to have “rights and obligations recognised by law decided by a competent, independent and impartial court or tribunal after a fair and public hearing”. The interpretation which should be attributed to s 67A(11), it is said, should be that which best upholds this right.

38․The starting point in considering this submission is to acknowledge that the human rights guaranteed by the HRA are not without limits. The provisions of s 28 of the HRA are relevant:

Human rights may be limited

(1)Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.

(2)In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:

(a)the nature of the right affected;

(b)the importance of the purpose of the limitation;

(c)the nature and extent of the limitation;

(d)the relationship between the limitation and its purpose;

(e)any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

39․There can be no doubt that the declaration under s 67A of the SCA limits the plaintiff’s otherwise unfettered right to commence proceedings in an appropriate court or tribunal to have his rights determined.  The express legislative intention in s 67A is to limit that right in circumstances where the right is being abused.

40․Access to a competent, unbiased body with the jurisdiction to authoritatively determine the rights of an individual and to make orders allowing for the enforcement of those rights is an important right in any democracy.  It is fundamental to the rule of law. Indeed, the absence of such a right is a hallmark of a dictatorship.

41․But there are others whose rights must also be considered. The defendants to the present application, who have been burdened by being forced to participate in earlier proceedings (and often multiple earlier proceedings) commenced by the plaintiff without reasonable grounds or for an improper purpose should not continue to be vexed by a continuation of this conduct.  Continued prosecution of vexatious claims is stressful to those forced to defend the claims, expensive and wasteful of scarce public resources.  These legitimate public and private interests are recognised in the power vested in this Court by s 67A to declare a person to be a vexatious litigant.

42․The plaintiff has not sought a declaration that the terms of s 67A are not consistent with a human right recognised by the HRA: s 32 of the HRA. Such an application would in any event be futile. In the present application, the use that the plaintiff seeks to make of the HRA is limited to the application of the principle in s 30 of the HRA to the proper interpretation of s 67A(11) of the SCA. The application of that principle does not require that the plaintiff’s suggested interpretation of s 67A of the SCA be accepted.

43․The provisions of s 67A of the SCA seek to achieve a balance between the rights of an individual to have unfettered access to courts and tribunals, on the one hand, and the public and private rights to which I have referred in cases where a person has demonstrably abused such access frequently in the past. It would be perverse to determine that the legislature intended in s 67A(11) to enable a vexatious litigant to continue that abuse by permitting relitigating issues already authoritatively determined either in the hearing of the application for a declaration under s. 67A or in earlier proceedings which were considered by the Court in making the declaration.

44․Interestingly, in the case of Attorney-General for the State of Victoria v Kay [2009] VSC 337, Cavanough J considered a submission akin to that raised by the present plaintiff and arguing that a vexatious litigant order made under the Victorian legislation violated Mr Kay’s right of access to the courts under s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). In rejecting that submission, at [11] Cavanough J adopted the response of Nettle JA in Mr Kay’s submissions to the Court of Appeal:

… European and English decisions establish that a right of access of the kind which is enshrined in s 24 of the Charter may be subjected to reasonable restrictions aimed at achieving legitimate objectives if the means used to achieve those objectives are proportionate thereto: Golder v United Kingdom (1975) 1 EHRR 524; Ebert v Official Receiver [2001] EWCA Civ 340; [2002] 1 WLR 320. Since a right of access of the kind enshrined in s 24 of the Charter is informed and limited by the ‘needs and resources of the community and individuals’ it is recognised that it is in the interests of justice and thus a legitimate aim to restrict the access of vexatious litigants: Ashingdane v United Kingdom [1985] ECHR 8225/78; (1985) 7 EHRR 528. Consequently, in England, where the procedures for the declaration of vexatious litigants and for review and appeal are not dissimilar to those which apply in this State, it has been accepted that the general system relating to vexatious litigants complies with the requirements of the European Convention for the Protection of Human Rights: Ebert v Official Receiver [2001] EWCA Civ 340; [2002] 1 WLR 320, 323 [6]-[9]. Similarly, in my view, the procedures in this State which govern the making of an order to declare a litigant vexatious, and the rights of appeal and review to which such an order is subject are consistent with s 24 of the Charter.

45․In his submissions, the plaintiff, no doubt in order to impress upon me the desirability of interpreting s 67A(11) as he suggested, referred to the effect of the refusal of the Law Society to issue him an unrestricted practising certificate as depriving him of his ability to earn a living. This is incorrect. The refusal of the Law Society to issue the plaintiff an unrestricted practising certificate only precludes the plaintiff from engaging in the professional activities of a legal practitioner which require such a certificate. A diverse range of roles, not requiring a practising certificate under the Legal Profession Act 2006 (ACT), exist in both public and private enterprise for those with legal qualifications.

46․In support of his suggested interpretation of s 67A(11), the plaintiff asserted that the declaration made by Curtin AJ precluded him from defending certain proceedings that have been commenced against him in the ACAT. This submission was based on the proposition that by defending those proceedings he would be in breach of s 67A(3)(a) of the SCA because by agreeing to go to the ACAT he would be “acting in concert” with the party who commenced the proceeding. This, of course, is nonsense.

47․The declaration made by Curtin AJ precludes the plaintiff personally, or acting in concert with another person, from commencing or continuing proceedings.  Where the plaintiff is the defendant or respondent to proceedings commenced by another without the collusion of the plaintiff then the plaintiff is not precluded by the declaration from defending those proceedings.  Nor does his participation as a defendant in such a proceeding amount to him continuing the proceeding.

48․In my opinion, it is abundantly clear that the legislative intention underpinning s 67A(11) is to provide a mechanism for the removal of a declaration that a person is a vexatious litigant where the original reasons for the making of the declaration no longer exist or that circumstances have otherwise changed such that the declaration is no longer needed; see Ezekiel-Hart v Council of the Law Society of the ACT [2024] ACTCA 2 at [10].

49․Another matter raised by the plaintiff was an assertion by the plaintiff that the second defendant to the present application had admitted to giving incorrect evidence in one of the proceedings taken into account by Curtin AJ in making the declaration. Assuming for present purposes that this admission was not known to the plaintiff before the proceedings before Curtin AJ, it is entirely unclear how the plaintiff asserts that this fact, if accurate, is relevant. Is it relevant only to the credit of the second defendant or is it in some way said to be relevant to the determination of Curtin AJ that particular proceedings he determined to be vexatious were not so? If it be alleged that a judgment against the plaintiff was obtained by fraud, he has the right to apply for leave to have the judgment set aside: see Cross, at [5005]. Doubtless, the plaintiff would need to adduce evidence of any such alleged fraud in such an application.

50․Another, and possibly interconnected, issue raised by the plaintiff is the fact that he was not present at the time the application for a declaration was made by Curtin AJ. This is not a matter that is relevant to an application under s 67A(11) of the SCA. If it were alleged that Curtin AJ wrongly exercised his Honour’s discretion by refusing to adjourn the proceeding and determining the application for a declaration in the plaintiff’s absence, the plaintiff’s remedy was to seek leave to commence proceedings in the Court of Appeal challenging those decisions. Similarly, many of the grounds pleaded by the plaintiff in the present application are effectively complaints that the declaration should not have been made by Curtin AJ. The plaintiff’s remedy was to seek leave to commence proceedings in the Court of Appeal challenging that decision. The plaintiff apparently chose not to adopt that course.

51․There is nothing in the material adduced by the plaintiff in the present proceeding which would suggest that the declaration made by Curtin AJ is no longer required for the purposes for which it was imposed.  In fact, the present proceedings demonstrate why the declaration should remain in force.

Order

52․For these reasons,

(1)The application is dismissed.

(2)The plaintiff is to pay the defendants’ costs of the application as agreed or assessed on a party/party basis unless an application is made for a different order within 14 days of the publication of these orders and reasons.

I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Burns.

Associate:

Date: 2 September 2025