FEDERAL CIRCUIT COURT OF AUSTRALIA
| EZEKIEL-HART v THE LAW SOCIETY OF THE ACT & ANOR | [2014] FCCA 658 |
| Catchwords: HUMAN RIGHTS – Claims of racial discrimination against Law Society for failure to issue unrestricted practising certificate – same factual matrix the basis for multiple earlier proceedings in superior courts – all previous proceedings dismissed against the applicant with adverse costs orders – no evidence filed by or on behalf of applicant in support of claims – considerations regarding summary dismissal – considerations in relation to abuse of process – vexatious proceedings order – declaration of vexatious litigant. |
| Legislation: Australian Human Rights Commission Act 1986, s.46PO(6) Racial Discrimination Act 1975, ss.6A(1), 9, 13, 18A, 18C Federal Circuit Court Rules2001, r.13.01 |
| Applicant: | EMMANUEL EZEKIEL-HART |
| First Respondent: | THE LAW SOCIETY OF THE ACT |
| Second Respondent: | LEGAL AID COMMISSION ACT |
| File Number: | CAG 55 of 2013 |
| Judgment of: | Judge Neville |
| Hearing date: | 4 December 2013 |
| Date of Last Submission: | 18 December 2013 |
| Delivered at: | Canberra |
| Delivered on: | 4 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Counsel for the First Respondent: | Mr N Beaumont SC |
| Solicitors for the First Respondent: | Phelps Reid |
| Counsel for the Second Respondent: | Mr J Pappas |
| Solicitors for the Second Respondent: | ACT Government Solicitor |
ORDERS
The Application filed on 11th September 2013 be dismissed.
The Application in a Case filed on 24th October 2013 be dismissed
the Applicant be prohibited from instituting any further proceedings in this Court that (a) relate to or arise out of the First Respondent Law Society’s refusal to issue him with an unrestricted practising certificate, and (b) names any of the parties in the current matters (or their servants or agents) and which relate to or arise out of the same refusal to issue the said certificate.
The Applicant is to pay to each of the Respondents the costs of and incidental to both of the Applications that have been summarily dismissed this day by the Court, such costs to be determined or assessed on a party-party basis.
THE COURT DECLARES THAT
Pursuant to s.88Q of the Federal Circuit Court of Australia Act 1999, the Applicant, Mr Ezekiel-Hart, is a vexatious litigant.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 55 of 2013
| EMMANUEL EZEKIEL-HART |
Applicant
And
| THE LAW SOCIETY OF THE ACT |
First Respondent
| LEGAL AID COMMISSION ACT |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In a recent High Court judgment, Heydon and Crennan JJ rather balefully described the litigation before the Court as “lamentable and ill-starred.”[1] Unfortunately, such a description applies similarly to the current litigation between these same parties, who have been embroiled in litigious contest for many years, and in many different courts. For ease of reference, the history of that litigation is set out in detail later in these reasons in tabular form.[2]
[1] See Byrnes v Kendle (2011) 243 CLR 253 at [90].
[2] The following is a list of the more recent skirmishes in the Supreme Court of the ACT and in the Federal Court of Australia: Ezekiel-Hart v Law Society of the Australian Capital Territory [2012] ACTSC 103; Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] FCA 257 (Foster J); Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] FCA 725 (Yates J); and Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] ACTSC 182. The full litigious history is set out in “Appendix A” to these reasons.
The current contest, in much abbreviated form, seeks relief in relation to alleged racially discriminatory action against Mr Ezekiel-Hart by both of the Respondents.[3]
[3] For a general discussion regarding the requirements to be satisfied for such a claim, see the discussion by the Full Court of the Federal Court of Australia in Qantas Airways Ltd v Gama (2008) 167 FCR 537.
Also in very abbreviated form, for the reasons that follow, all of the Applications filed by Mr Ezekiel-Hart must be dismissed. In short, he has not made out his case, and equally (or in the alternative), as submitted by the Respondents, there is no foundation or “underlying basis” for the orders sought. Accordingly, on either ground (including pursuant to s.17A of the Federal Circuit Court of Australia Act1999 (“the FCCA Act”)), all applications (and matters incidental thereto) must be dismissed with costs, as agreed or taxed.
Further, for the following reasons, orders should also be made, pursuant to S88Q of the FCCA Act, that the Applicant be declared a vexatious litigant.
Procedural History
By Application filed on 11th September 2013, Mr Ezekiel-Hart sought orders including an apology from both Respondents, as well as compensation for ‘damage to his reputation and to his business [as a lawyer]’, and for bullying, which the Respondents are said to have inflicted on him. The Applicant contends, among other things, that his distress has been caused [primarily] for two reasons: (a) he has been discriminated against because of his ‘race and ethnicity’, and (b) he has been discriminated against in the with-holding of a practising certificate which (he contends) is because of his “descent and colour.”
No affidavit was ever filed in support of the original Application.
By an Application in a Case, filed on 24th October 2013, Mr Ezekiel-Hart sought further relief against the First Respondent (“the Law Society”) to restrain its servants and agents from harassing, intimidating or bullying him, “or procuring its allies to do any of the conduct prohibited”, as well as a no less strangely worded order sought in the following terms:
The 1st Respondent, its servants or agents be prohibited from calling for or entertaining any complaints by its selves, its agents or servants concerning any matter that has connection with the conduct of the matters between the parties now and previously after my application now before the Court was filed in this Court under the Australian Human Rights Commission Act 1986.
A brief affidavit was filed by the Applicant on 24th October in support of his Application in a Case.
By a Response, filed 1st November 2013, the Law Society sought orders to have the Application in a Case dismissed, together with an order for costs. It will be immediately noticed that no orders were sought in the Response by the Law Society in relation to the original Application, filed in September 2013.
The Second Respondent (“the Commission”) sought orders in a Response, filed 6th November 2013, inter alia, that the [September] Application be dismissed, with costs. The Commission denied that any conduct by or on its behalf was in breach of s.9 of the Racial Discrimination Act 1975.
On 8th November 2013, the Law Society filed an Application in a Case, which sought orders to strike out the [principal] Application. In detail, the orders sought were:
1. An order pursuant to rule 16.21(1) of the Federal Court Rules 2011 (made applicable by rule 1.05(3)(b) and Part 2 of Schedule 3 of the Federal Circuit Court Rules 2001) that the whole of the application filed 11 September 2013 in these proceedings be struck out.
2. An order pursuant to rule 13.10 of the Federal Circuit Court Rules 2001, or alternatively, pursuant to section 88Q(2)(a) of the Federal Circuit Court of Australia Act 1999 (Cth) (the Act), that the proceedings be dismissed in their entirety;
3. An order pursuant to section 17A(2) of the Act that there be judgment for the Society against the Applicant.
4. An order pursuant to section 88Q(2)(b) of the Act that the Applicant must not start or continue any other proceeding in the Court against the First Respondent or its officers, servants or agents without the leave of the Court.
5. Further, or in the alternative, an order that the proceedings be stayed until such time as the Applicant has paid the costs which are owing by him to the Society in respect of all outstanding costs orders made by the Supreme Court of the Australian Capital Territory against the Applicant and in favour of the Society.
6. An order that the Applicant pay the Society’s costs of these proceedings on an indemnity basis.
7. Such further or other order as the Court thinks fit.
On 13th November 2013, the Commission filed an Application in a Case, largely in terms identical to those sought by the Law Society. In detail, the orders sought were:
1. An Order pursuant to rule 16.21(1) of the Federal Court Rules 2011 (made applicable by rule 1.05(3)(b) and Part 2 of Schedule 3 of the Federal Circuit Court Rules 2001) that the whole of the application filed 11 September 2013 in these proceedings be struck out.
2. An order pursuant to rule 13.10 of the Federal Circuit Court Rules 2001, or alternatively, pursuant to section 88Q(2)(a) of the Federal Circuit Court of Australia Act 1999 (Cth) (the Act), that the proceedings be dismissed in their entirety.
3. An order pursuant to section 17A(2) of the Act that there be judgment for the Legal Aid Commission Australian Capital Territory against the Applicant.
4. An order that the Applicant pay the second respondent’s costs of these proceedings on an indemnity basis.
5. Such further or other order as the Court thinks fit.
On 2nd December, the Law Society filed a Response to the principal Application filed by Mr Ezekiel-Hart in September 2013 (why it was filed so late was not explained). The orders sought included having the Application dismissed, and judgment entered in favour of the Law Society, as well as an order for costs (like the Commission) on an indemnity basis.
Also like the Commission, the Law Society denied that any acts by or on its behalf breached, or were contrary to, ss.9(1), 13, 18A or 18C of the Racial Discrimination Act 1975.
On 4th December, the Law Society filed in Court an Amended Application in a Case. As relevantly amended, the Law Society sought additional orders to have Mr Ezekiel-Hart declared a vexatious litigant, and/or in the alternative that (a) the current proceedings be stayed until all previous costs owed by him (pursuant to orders in other named courts) were paid, and/or (b) Mr Ezekiel-Hart be restrained from instituting (or continuing) any other proceeding in the Court against the Law Society (or its officers, servants or agents) until all previously awarded costs have been paid.
Evidence of Mr Ezekiel-Hart
I have already noted that Mr Ezekiel-Hart filed no affidavit in support of his substantive application. That Application annexed to it a large amount of material, including documents that were filed in his application to the Australian Human Rights Commission (“the HR Commission”), as well as that Commission’s decision (described as “attachment A” to his initiating Application). Although not formally before the Court as sworn evidence, I will consider summarily, and only in so far as might be relevant (as opposed to a detailed analysis of each ‘attachment’), the documents attached to his Application before turning to the only affidavit evidence provided by the Applicant, filed 24th October 2013.
Page 7 of the Application is the Notice of Termination issued by the HR Commission, dated 16th August 2013, in which it determined that, in relation to aspects of the claim against the Law Society, it was more than 12 months after the alleged unlawful discrimination took place. The HR Commission was satisfied that there was no reasonable prospect of the matter being resolved by conciliation.
In relation to the claim against the Legal Aid Commission, the HR Commission determined to terminate the complaint against it because “it was lacking in substance.”
Of significance is that the HR Commission’s letter to Mr Ezekiel-Hart (also dated 16th August 2013) noted (at p.4 of the letter; p.11 of the attachments to the Application)
(a)that the Applicant’s complaints against both Respondents (but particularly the Law Society) dated from the decision in 2008 not issue him with an unrestricted practising certificate;
(b)the number of actions commenced in the Supreme Court of the ACT and in the Federal Court of Australia (which matters are set out in the letter) in all of which the issue of the denial of an unrestricted practising certificate had been raised and determined adversely to the Applicant;
(c)in some of the matters before the superior courts mentioned, the HR Commission further observed that Mr Ezekiel-Hart had also alleged that he had been racially discriminated against by the Law Society;
(d)in relation to his claims against the [Legal Aid] Commission, the HR Commission determined (at p.6 of its letter; p.13 of the attachments to the Application) that, apart from his dissatisfaction with various decisions regarding the awarding of grants of legal aid, Mr Ezekiel-Hart had provided no (or did not point to any) information to support his claim.
Page 20 of the attachments to the Application is part of the documentation lodged with the HR Commission. There Mr Ezekiel-Hart outlined his allegations against certain named persons who, he said, used the Law Society to prevent him engaging in legal practice “because of my colour and descent.” He also there set out a denial by a member of the Law Society in the following terms: “Rest assured your so called “Blackman” status has nothing whatsoever to do with the Law Society’s dealings with you in the past, the present, or the future.”
At pp.34 and 35 of the attachments, Mr Ezekiel-Hart set out the circumstances which he asserts establish discrimination against him by the Commission in the failure to award grants of legal aid between December 2009 and July 2013 to persons represented by Mr Ezekiel-Hart.
At p.37 of his attached documents, Mr Ezekiel-Hart confirmed to the HR Commission that he sought an outcome, among others, whereby the Law Society “should be encouraged to train regularly its members of Council and staff on effect [sic] of racism, bully [sic], harassment and victimization and intimidation” and “produce my unrestricted practising certificate.”
Finally, among the remaining documents attached to his Application are (a) obviously incomplete correspondence between the Applicant and the Law Society (and/or its solicitors) from as long ago as August 2008,[4] and (b) an email to the President of the Law Society, dated 5th April 2013, in which Mr Ezekiel-Hart proposed “three options” for the payment of the costs awarded against him. That email stated, in part: “I am prepared to pay inclusive of the unjust and just costs and do not wish to negotiate reduction of the cost said to be owed whether or not my insurer wish to conclude reimbursement at a later date.”
[4] The correspondence relates, almost exclusively, to the Law Society issuing (or not) an unrestricted practicing certificate to Mr Ezekiel-Hart.
Affidavit of Mr Ezekiel-Hart (24th October 2013): As previously noted, this affidavit was in support of his Application in a Case, filed 24th October 2013. The affidavit was very brief.
At the outset, Mr Ezekiel-Hart confirmed that he had filed proceedings seeking relief under the Australian Human Rights Commission Act 1986 (“AHRC Act”) for his ‘fear of victimization’ and to restrain the Law Society from “continuous intimidation, bullying, harassment and victimization adopted from 18 September 2013…”
Mr Ezekiel-Hart then deposed that he had filed the Application under the AHRC Act in this Court on 11th September 2013, and served it on the Law Society the following day. On that day, he said that he again provided to the Law Society a copy of his “Withdrawal of Renewal of Unrestricted Practising Certificate” due to “oppression and unfavourable treatment.” His cheque for that renewal was returned by the Law Society to him on 17th September.
Annexure 2 to this affidavit is a letter from the Law Society to Mr Ezekiel-Hart, dated 18th September 2013 (marked ‘private and confidential’). The letter was from Mr Reid, the Chair of the Law Society’s Complaints Committee. The letter from Mr Reid -
(a) referred to a complaint lodged with the Law Society against Mr Ezekiel-Hart by Mr Larry King,
(b) enclosed a copy of Mr King’s letter of complaint, dated 17th September 2013 (unfortunately, Mr Ezekiel-Hart’s annexure did not include the letter of complaint from Mr King),
(c) set out the three grounds of complaint, namely (i) vexatious proceedings, (ii) communications with the Court and Judicial Criticism, and (iii) threatening communications,
(d) provided a time-frame for Mr Ezekiel-Hart’s response to the complaint by Mr King, and set out (i) procedural options for possible resolution (e.g. mediation), (ii) the role of the Complaints Committee, and (iii) the availability of advisers for Mr Ezekiel-Hart.
Mr Ezekiel-Hart deposed that the action of the Law Society, by its ‘servants and agents’ (in this case Mr King) were harassing him (among other things) with a view to forcing him to abandon his [primary] Application before this Court, or risk being “banned from practise before [his] matter is determined….” He further deposed to his “belief” about his need to have his case determined by the Court in order that “solid justice” was achieved between the parties.
Mr Ezekiel-Hart confirmed that this affidavit was in support of his Application in a Case, filed 24th October 2013.
The Law Society’s Evidence
Affidavit of Mr Reis (1st November 2013): Mr Reis is the Professional Standards Manager for the Law Society. He deposed as follows.
First, he denied that he, or anyone else within the Law Society (to the best of his knowledge), had engaged in any conduct towards Mr Ezekiel-Hart that could be regarded as threatening, harassing, bullying, victimising or intimidating.
Secondly, Mr Reis referred to a number of annexures to his affidavit. They are:
(a)The Applicant’s letter to the Law Society: 10th September 2013 (the Applicant’s withdrawal of his application to renew for an unrestricted practising certificate);
(b)Annexure B to this affidavit is a copy of the original letter of complaint by Mr King to the Law Society (dated 17th September 2013), together with all of its attachments, referred to in, but omitted from, Mr Ezekiel-Hart’s affidavit filed on 24th October 2013;
(c)Annexure C is a copy of a letter Mr King sent to Mr Ezekiel-Hart: 19th September 2013;
(d)Annexure D is Mr Ezekiel-Hart’s response to Mr King’s letter: 1st October 2013.
Mr Reis confirmed that, as at the date of the swearing of his affidavit, the Law Society had received no response from Mr Ezekiel-Hart to its letter to him dated 18th September.[5]
[5] See [27] of these reasons for further reference to this letter.
I note that among the documents that formed part of Mr King’s letter of complaint to the Law Society, dated 17th September 2013, there is
(a)a letter from Mr Ezekiel-Hart addressed to the President of the ACT Law Society, dated 10th September 2013, which included a postscript, which Mr King confirmed he took as a threat. That postscript reads: “It is important to note that I may not wait for rule of law but will call for protest or pay advert of my matter with the society, or don’t I have that Right. [sic]”
(b)an email from Mr Ezekiel-Hart to Mr Reis’s solicitor (Mr Lucas) dated 4th June 2013, which is entitled “Re: vexatious black lawyer hunter”;
(c)Mr Lucas’s objection, by email dated 11th June, to certain threats made in Mr Ezekiel-Hart’s earlier letter under reply;
(d)correspondence between Mr Ezekiel-Hart and the Associate to Foster J of the Federal Court of Australia (dated 26 & 27 March 2013), and from Mr Phelps, the solicitor for the Law Society, who wrote to the Applicant on 3rd April to protest about the correspondence with Foster J’s Associate and that such matters may be taken into account regarding the renewal of an unrestricted practising certificate;
(e)there is also detailed correspondence between Mr Ezekiel-Hart and the Law Society over a number of years including (i) an undated note (pp.29-31 of Mr Reis’s affidavit) from Mr Ezekiel-Hart headed: “Let no lawyer say that he or she is not aware of injustice, inequity and oppression heaved on black lawyer Emmanuel and the consequences of self-help to oppose oppression”; (ii) a letter from Mr King (as executive director of the Law Society), dated 10th August 2011, to the Applicant regarding allegations against the Law Society in relation to the fabrication and falsification of documents; and (iii) an email from the Applicant to, among others, Mr King and Mr Reis, dated 1st October 2013, which includes comments such as: “Since the ethnic cleansing perpetrated by the Law Society against me and all black lawyers as dictated by you [Mr King] and Mr Reis … You have chased all my clients away I do not have any current file. As you know I do not hold trust money, and do not owe anyone. I am currently on holidays overseas and studying language for my new advisory job. Thank you, enjoy your frustrated selves.”
On 8th November 2013, the solicitor for the Law Society, Mr Phelps, filed a voluminous affidavit which included 168 pages of annexures, to which was later ‘added’ a “supplementary exhibit bundle”, filed on 29th November 2013, of some 145 pages or thereabouts. Mr Phelps confirmed that his affidavit was in support of orders sought by the Law Society to strike out Mr Ezekiel-Hart’s Application, as well as other orders sought, such as to preclude any further proceedings being instituted by the Applicant in this Court against the Law Society and its officers, servants or agents.
Mr Phelps deposed that the current proceedings essentially focus on or arise out of Mr Ezekiel-Hart’s pursuit of and the Law Society’s refusal to grant an unrestricted practising certificate in 2008, and the damage(s) which the Applicant contends he has suffered as a result of this refusal.
Mr Phelps further deposed that such or similar proceedings had been ventilated and struck out in the Supreme Court of the ACT and in the Federal Court of Australia, following which incompetent appeals had followed in each matter.
At par.9 of his affidavit, Mr Phelps referred to Mr Ezekiel-Hart’s application to the Australian Human Rights Commission and that Commission’s comments on the numerous pieces of litigation in which he has ventilated the same issue, including that he had been the subject of racial discrimination by the Law Society but had not, until filing the complaint with the HR Commission, made any formal claim of racial discrimination.
Mr Phelps then summarised, and documented, each of the proceedings. He also provided copies of the sealed orders from each of the proceedings. Pages 1-2 of the annexures to Mr Phelps’ affidavit (styled “Index to Exhibit MJP-1”) conveniently provides a table of relevant orders and matters before each court mentioned, including Mr Ezekiel-Hart’s failed application for leave to appeal to the High Court.[6]
[6] See p.26 of these annexures.
Given how much paper and much else besides has been expended in the prosecution of each of the matters, and given how detailed is the documentation in Mr Phelps’ affidavit (and annexures and supplementary exhibit bundle), it is sufficient to note that the proceedings were filed as follows:[7]
(a)ACT Supreme Court: 17th March 2009;
(b)ACT Supreme Court: 7th September 2011;
(c)Federal Court of Australia: 26th November 2012;
(d)Federal Court of Australia: 26th July 2013
[7] As noted earlier in these reasons, the citations of the relevant matters is as follows: Ezekiel-Hart v Law Society of the Australian Capital Territory [2012] ACTSC 103; Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] FCA 257 (Foster J); Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] FCA 725 (Yates J); and Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] ACTSC 182. Further details of the history of the litigation between the parties are set out in “Appendix A” to these reasons.
In each case, the central issue related to Mr Ezekiel-Hart’s attempt to obtain an unrestricted practising certificate and his claim for damages for the injury he claims to have suffered by the Law Society’s refusal to accede to his application. In each case, costs have been awarded against Mr Ezekiel-Hart. Those awards for costs have resulted in bankruptcy proceedings in this Court, which were disposed of by me on 6th March 2014, adversely to the Applicant.
In several of the proceedings in the superior courts mentioned, regularly there has been reference to the duplication of claims dealt with in earlier proceedings, and or (notably in the Federal Court of Australia) to claims under the Racial Discrimination Act1975. For example, in the matter of Ezekiel-Hart v Law Society of the Australian Capital Territory [2012] ACTSC 103, Refshauge J referred to:[8]
(a)The Law Society’s statutory obligation to consider applications for the issuance of an unrestricted practising certificate (reasons at [55] ff);
(b)The immunity from suit of the Respondents named in those proceedings under the Legal Profession Act 2006 (ACT), ss.576 and 587A, the relevant Respondents there being the Law Society, Mr Reis, Mr King and Mr Barnett (reasons at [59] ff);
(c)Mr Ezekiel-Hart’s failure to establish any basis for claims under ACT human rights legislation (as well as under the Constitution) (reasons at [64] – [69]);
(d)The striking similarity between the pleadings before his Honour and those filed in earlier proceedings (reasons at [78] – [82]), concluding (at [82]) that the Statement of Claim should be struck out as disclosing no cause of action;
(e)Abuse of process considerations (at [109] – [115]) and concluded, at [116], that the causes of action pleaded in the current statement of claim are relevantly identical to causes of action pleaded in an earlier statement of claim that had been struck out in previous proceedings. Accordingly, his Honour held, at [117], that the proceedings before him were an abuse of process.
[8] The reasons of Refshauge J, in [2012] ACTSC 103, are at pp.43-77 of the annexures to Mr Phelps’ affidavit.
The details of Mr Ezekiel-Hart’s claim in the Federal Court of Australia (ACD 86 of 2012), naming the same Respondents as those named in the proceedings before Refshauge J in the Supreme Court of the ACT, are found at pp.90-101 of the annexures to Mr Phelps’ affidavit. Relevantly at p.91, under the heading of “Details of Claim”, Mr Ezekiel-Hart referred to a claim for damages “for breach of common law duty of care, breach of s.117 of the Commonwealth Constitution … and s.9 Racial Discrimination Act 1975 (Cth).” In his statement of claim filed in the Federal Court, there is no mention of “race.” Pursuant to reasons delivered on 25th March 2013, Foster J dismissed the entirety of the Applicant’s application before that Court, with costs on an indemnity basis.
At [10] in the reasons of Foster J, his Honour referred to Mr Ezekiel-Hart relying “upon the same essential facts and substantially the same claims and causes of action which he has twice sought to litigate in the ACT Supreme Court.” At [35] – [39], Foster J set out the relevant detail of Mr Ezekiel-Hart’s application before the Federal Court. Ultimately, his Honour found that (a) there was no substance to the claim(s) by Mr Ezekiel-Hart, and (b) the issues raised in, and the parties to, the earlier proceedings were identical.
Not insignificantly, Foster J declined to make, at that stage, an order declaring the Applicant to be a vexatious litigant. However, at [65], his Honour indicated that such a view may change “should Mr Ezekiel-Hart bring a fresh proceeding in this Court based upon the same facts and matters or substantially the same facts and matters as have been relied upon by him in the present proceeding.”
His Honour made a costs order on an indemnity basis, for the reasons (at [67]) that, in his view, (a) the proceeding should never have been brought, and (b) it was doomed to fail.
The further application to the Federal Court of Australia (ACD 55 of 2013; [2013] FCA 725), before Yates J, failed with a further adverse costs order against Mr Ezekiel-Hart.[9]
[9] The judgment of Yates J in [2013] FCA 725 is at pp.133-149 of the annexures to Mr Phelps’ affidavit.
In the circumstances outlined in Mr Phelps’ affidavit, he contends that the matters set out by Mr Ezekiel-Hart in the current Application disclose no reasonable cause of action, and otherwise (a) constitute an abuse of process, (b) are vexatious, and (c) should, accordingly, be struck out. Mr Phelps also formally notes that Mr Ezekiel-Hart filed no affidavit evidence in support of his [primary] Application.
The Supplementary Exhibit Bundle, filed 29th November 2013, contains, inter alia, copies of further applications made in the ACT Supreme Court by Mr Ezekiel-Hart, and further correspondence between the Law Society and the Applicant. Among this material is correspondence whereby Mr Ezekiel-Hart confirmed, by email dated 28th June 2013 addressed to Mr Reis, that he had made arrangements with his insurer to pay the outstanding costs to the Law Society. In the same email, (p.192 of the Supplementary Exhibit Bundle), he again claimed that he had been discriminated against by the Law Society: he said, “… I am a Blackman and that form [sic] the basis of your maltreatment, discriminatory and disadvantage [sic] treatment towards me since 2008.” Mr Reis replied on the same day (p.193 of the Supplementary Exhibit Bundle) to confirm, among other things, that “… your so called “Blackman” status has nothing whatsoever to do with the Law Society’s dealings with you in the past, the present, or the future.”
Crucially, in the Supplementary Exhibit Bundle are copies of three letters, each of them from the Law Society to Mr Ezekiel-Hart. They are dated, respectively, 18th and 19th June 2013, and 16th August 2013.[10] They are crucial precisely because they particularise the grounds of concern by the Law Society in relation to Mr Ezekiel-Hart’s application for an unrestricted practising certificate, and they confirm, in clear terms, that the claims of harassment, bullying and victimisation and the like bear no resemblance to the reality of the situation.
[10] The letters referred to are at pp.182-183, 184-185, and 252-253 of the Supplementary Exhibit Bundle.
For example, in the letter dated 18th June 2013, the Law Society outlined the concerns it [then] had about whether the Applicant was a ‘fit and proper person’, under the Legal Profession Act 2006 (ACT), to continue to hold an unrestricted practising certificate. The concerns were particularised as three-fold: (a) vexatious proceedings, (b) communications with the court and judicial criticism, and (c) threatening communications. Relevant details of each of these matters were provided to Mr Ezekiel-Hart. Further particulars were provided by the Law Society in its letter of 19th June 2013.
The letter of 16th August 2013 set out the Law Society’s “provisional view” regarding granting Mr Ezekiel-Hart an unrestricted practising certificate. That view was adverse to him. The Law Society gave Mr Ezekiel-Hart an opportunity, within a prescribed time-frame, to put further submissions to it in the light of the matters set out in that letter. In addition to the matters raised in the June letters, the Law Society highlighted in its August letter its concerns about the conduct of proceedings against it which it considered to be vexatious; relevant details were provided. Finally, the Law Society detailed from Mr Ezekiel-Hart’s correspondence with it statements which it viewed as constituting threats of violence.
For the reasons set out in its letter of 16th August, the provisional view of the Law Society was that Mr Ezekiel-Hart was not a ‘fit and proper person’, under the Legal Profession Act 2006 (ACT) to hold an unrestricted practising certificate.
In none of the correspondence to which I have referred is there any hint of conduct that could remotely, let alone reasonably, sustain – by inference or otherwise – the claims asserted by Mr Ezekiel-Hart. Indeed, the letters point to the exact opposite conclusion, as does all other correspondence, including repeated formal denials by relevant officers of the Law Society that Mr Ezekiel-Hart’s skin colour was or ever has been a relevant consideration by the Law Society regarding the attempts by the Applicant to obtain an unrestricted practising certificate.
The [Legal Aid] Commission’s Evidence
Mr Bayliss is a lawyer with the ACT Government Solicitor’s office who has carriage of the matter on behalf of the Second Respondent (“the Commission”). His affidavit, filed 14th November 2013, annexed a copy of the Legal Assistance Guidelines for Legal Aid ACT (“the Guidelines”). A copy of those Guidelines became Exhibit A.
Mr Bayliss deposed that his instructions were that, in accordance with the Guidelines, legal assistance is rarely approved for Counsel to appear in criminal proceedings in the Magistrates Court or the Children’s Court, and that it is never provided for a practitioner to appear as both solicitor and counsel in the same case. He also deposed as to the requirement for there to be sufficient “merit” in a particular case for the grant of legal aid. If sufficient justification is not forthcoming, then legal aid is limited “to a fee and please [sic] of guilty rates.”
Mr Bayliss also deposed that the Applicant simply or only repeated provisions of the Racial Discrimination Act1975, and alleged no facts that would give rise to any allegation of discrimination against the Commission. Otherwise, Mr Bayliss pointed out that no evidence had been provided by Mr Ezekiel-Hart in support of his Application.
It is apposite here simply to note, without discussion, the following sections from the Guidelines (Exhibit A): “Payment of costs awarded to legally assisted persons” (pp.72-73); and “Allocation of Work” (pp.75-77).
Submissions
The Applicant’s Submissions
Mr Ezekiel-Hart filed three sets of submissions on the dates noted:
(a)Application in Proceeding: 6th November 2013 (58 pars; 8 pages);
(b)Applicant’s Written Submissions in relation to Originating Application and First Respondent’s Application in a Case: 28th November 2013 (112 pars; 14 pages);
(c)Applicant’s Written Submissions in relation to Originating Application and Second Respondent’s Application in a Case: 28th November 2013 (92 pars; 14 pages);
(d)Mr Ezekiel-Hart also provided written submissions, post the hearing, specifically in relation to the Law Society’s Amended Application in a Case. They were filed on 18th December 2013. Because of their specific focus, these submissions are considered at the end of these reasons.
By way of general comment: leaving to one side for the moment the post-hearing submissions, all the submissions filed by the Applicant (a) have a large component of exhortation to the Court ‘to do justice’, (b) mix submission with a regurgitation of facts as alleged by the Applicant, and (c) assert matters of either law and/or fact without reference to relevant evidence. The latter was hardly surprising given the lack of evidence provided by Mr Ezekiel-Hart, as well as the abundant documentary evidence provided by the Respondents to confirm why the Applicant’s claims were without merit.
As briefly as possible, the following may be gleaned (I use the word advisedly) from the submissions. Because of the significant overlap between them, I will treat all of the submissions together and simply note where there is any relevant difference between them.
The first submissions, filed 6th November 2013, assert essentially two things: (a) that the affidavit of Mr Reis, and to some extent “the submissions of Mr Phelps”, are untrue. Mr Ezekiel-Hart referred to Mr Reis’s affidavit as “perjured”, and that there was, at times, a “cover up” of matters within the Law Society to which Mr Phelps was a party. The matters to which the Applicant refers relate essentially to the receipt of certain documents by the Law Society. They do not, in my view, go to any substantive matter.
The remainder of the initial submission repeats, primarily by way of assertions of bullying and “oppression”, claims regarding the Law Society, including its procedures, whereby it determined not to issue the Applicant with an unrestricted practising certificate.
These submissions are, at times, embarrassing.
In the reasons of Foster J in [2013] FCA 257, at [38], his Honour cautioned the Applicant against making allegations of “dishonesty or recklessness against Mr Reis” without providing detailed particulars of that allegation. Respectfully, I adopt his Honour’s comments and again caution Mr Ezekiel-Hart against making such grave allegations which he has failed to particularise, or to provide relevant evidence to support them. The accusations made in the current matter against Mr Reis should not have been made.
Further, the claims or assertions made in these submissions regarding his practising certificate have been ventilated on numerous occasions in the superior Courts to which I have referred. It was completely otiose and improper to raise them again here. Moreover, as already noted, no fresh or relevant evidence was provided by the Applicant to support his unsupported interpretation of historical events that have been trawled through and rejected in earlier proceedings, and which have led, on each previous occasion, to orders adverse to the Applicant.
The final matter to note in relation to the first submissions concerns par.55. There the Applicant asserts that he was owed a statutory duty by “the [unidentified] Respondent” but who must be the Legal Aid Commission. He contended that he was owed a statutory duty to ensure that he had “job distribution” under the Legal Aid Act 2006 (ACT), and that the Commission should have seen that no legal aid work had been distributed to “any African Descent Law firm owner in the ACT, and in particular none was given to me, they never questioned the distribution because I am a Blackman and the distribution favours firms of their interest.”
Again, this is simply an unsubstantiated assertion on the part of the Applicant. Mr Bayliss confirmed, by reference to the Legal Aid Guidelines that were before the Court, the criteria upon which grants of legal aid occur. Absent any relevant evidence from Mr Ezekiel-Hart, or reference to relevant authority, there is no basis for the assertion he makes regarding an alleged statutory duty. In my view, no such duty exists.
There is significant duplication in the other two sets of submissions, which may conveniently be divided between (a) aspersions on the moral and legal failings of character of “the Respondents” - presumably Mr Ezekiel-Hart intends to refer to office holders of each of the Respondents; (b) contentions in relation to “abuse of process”; (c) claims regarding racial discrimination; and (d) considerations regarding summary dismissal.
First, the comments and reasons given in relation to his original submissions regarding allegations against Mr Reis (and Mr Phelps) apply equally to contentions regarding “the timbre and calibre of the Respondents” and “the minimal personality character of the Respondents…” Such comments/submissions are, at least, embarrassing – legally and otherwise – as well as offensive. They are untenable; there is no evidentiary foundation for them. They are contemptuous, leaving aside how one attributes (legally or philosophically) character traits to institutions.
Secondly, in what could be described as a blancmange of assertions, unsupported by evidence or relevant principle, Mr Ezekiel-Hart embarks upon a discursive narrative through a wide-ranging number of authorities which have no relevance to the matters before the Court. No less tellingly, in relation to ‘abuse of process’, nowhere does he refer to or otherwise deal with the number of superior court decisions (to which I have referred) which have dealt with his claims regarding the Law Society not issuing him with an unrestricted practising certificate, refusing any relief for same, and awarding costs against him. To rehearse, again, in this Court the same matter(s), in my view, brings the current proceeding squarely into the realm of principle that relates to abuse of process.[11]
[11] Generally, see the detailed discussion of principle regarding abuse of process in Williams v Spautz (1992) 174 CLR 509. Among other places, see the comments of Brennan J, at p.537: “… an abuse of process occurs when the only substantial intention of a plaintiff is to obtain an advantage or other benefit, to impose a burden or to create a situation that is not reasonably related to a verdict that might be returned or an order that might be made in the proceeding.” His Honour’s comments apply readily to the current proceeding where, having regard to the earlier decisions in superior courts, there is, in my view, no reasonable prospect that the relief sought by the Applicant can or should be made.
The same general comment applies to Mr Ezekiel-Hart’s claims in relation to his alleged unfavourable treatment because of his colour and ethnic background. There is no evidence to support such a claim. Mr Ezekiel-Hart in fact concedes (e.g. par.82 of the submissions directed to the First Respondent) that it is open to the Court to find that the officers of the Law Society acted lawfully in relation to him under the Legal Profession Act. He submits, however, that such lawful action does not preclude a relevant inference being drawn that would suffice for the purposes of the Court finding that there was discrimination under the Racial Discrimination Act 1975.
On the evidence provided by the Law Society, no such inference is possible. Indeed, as I have already noted, the letters of the Law Society to the Applicant in June and then August directly contradict any such inference. Again, the Applicant filed no evidence in support of his assertions. Moreover, he referred, at par.105-108 (submission directed to First Respondent), specifically to the refusal (or denial) to issue an unrestricted practising certificate as the foundation for his claim for unlawful racial discrimination. Having raised the non-issuance of an unrestricted practising certificate since 2009, and it having been litigated repeatedly in other proceedings, as the HR Commission observed, it is rather late in the day to be raising it as a basis to found a claim for racial discrimination in 2013. The claim of alleged racial discrimination must fail.
The penultimate matter to note relates to the Applicant’s submissions regarding summary dismissal. It is sufficient to note that he correctly refers to the relevant High Court discussion in Spencer v Commonwealth.[12] From that case and others cited he submits the need for the Court to proceed cautiously, particularly where there is a “real issue of fact or law to be decided.”
[12] (2010) 241 CLR 118.
Finally, for the sake of completeness, the Applicant’s submissions regarding the Second Respondent proceed on the basis that, in order to have any prospect of success, the Court must draw an inference that the denial of any legally aided work to Mr Ezekiel-Hart must have been solely on the basis of his race or ethnic background.
Because (a) he provided no evidence to support his claim, and (b) there was more than sufficient evidence as to the basis upon which the Commission determines either to grant aid (or not), it is not possible to draw the adverse inference the Applicant seeks. Moreover, just as in the earlier proceedings in the superior courts, just so here - the fundamental complaint by Mr Ezekiel-Hart remains the same: the Law Society refused to grant him an unrestricted practising certificate, and has done so, among other reasons, (he says) because of the colour of his skin and because of his ethnicity. In such circumstances the claim is in all relevant respects the same as has been litigated in the courts earlier mentioned. In my view, it matters not, especially in the absence of relevant evidence, that it is brought under a different legislative banner. Both Justices in the Federal Court made similar observations.[13]
The Respondents’ Submissions
[13] See Foster J in [2013] FCA 257 at ]42], and Yates J in [2013] FCA 725 at [38].
The First Respondent’s Submissions: The First Respondent filed three separate submissions on the dates noted:
(a)Submission in response to the Applicant’s Application in a Case: 1st November 2013;
(b)Outline of Submissions on the Law Society’s Strike Out Application: 28th November 2013;
(c)Outline of Submissions regarding the substantive Application: 2nd December 2013.
The Second Respondent filed submissions on 29th November 2013.
Logically, it is more appropriate to deal at the outset with the submissions that concern the strike out/summary dismissal application.
Briefly stated, the Law Society submitted that the same fundamental complaint was raised in the proceeding in this Court as had been raised in all of the other proceedings, namely the refusal to issue Mr Ezekiel-Hart with an unrestricted practising certificate and the alleged “damage” suffered by him as a consequence.
The Law Society (unsurprisingly) relied upon each of the earlier judgments of the superior Courts to which I have referred. It said that those decisions compelled this Court to come to the same conclusion, namely that the claim(s) against the Law Society are an abuse of process. In particular, the Law Society referred to and relied upon the respective findings and orders by Refshauge J in the ACT Supreme Court and by Foster J in the Federal Court of Australia. I need not repeat the particular findings and references as set out in the submissions, and noted earlier in these reasons.
Further, the Law Society confirmed that the Applicant had not paid anything pursuant to any of the costs orders made against him, in consequence of which, as a bare minimum, it sought that the Applications before the Court be stayed until all of the outstanding costs orders had been paid.
In relation to the claim under the Australian Human Rights Commission Act 1986, the Law Society submitted that the nature of the claim was nonetheless [factually] identical to all previous claims. Further, it was submitted the fact that the claim, although factually identical to earlier claims, was now brought under different legislation, only heightened or made more patent the abuse of the process undertaken by the Applicant in relation to the non issuance of an unrestricted practising certificate. The fundamental complaint remained the same.
Finally, the Law Society sought an order, under s.88Q(1)(a) and (b), that the Applicant be declared a vexatious litigant and the proceedings themselves to be declared vexatious. It relied in particular on the comments by Foster J (to which I have earlier referred) about not making such an order, but that his Honour would likely re-visit it in the event that similar proceedings were instituted again by the Applicant. The Law Society submitted that this is precisely what has occurred in the proceedings in this Court.
In relation to both the interlocutory Application and the substantive Application, the Law Society submitted as follows.
In relation to the former, again summarily stated, the Law Society submitted that it has statutory duties, under the Legal Profession Act 2006 (ACT), to deal with any complaint lodged against a practitioner. In short, the Law Society submitted that (a) it had no choice, under the legislation referred to, other than to deal with the complaint lodged by Mr King on 17th September 2013, and (b) once lodged, to give notice of it to Mr Ezekiel-Hart. It submitted further that the complaint was lodged prior to it becoming aware of the [substantive] Application having been filed by Mr Ezekiel-Hart on 11th September 2013.
The Law Society submitted that compliance with the Legal Aid Act 2006 (ACT) in relation to a complaint regularly lodged does not, and could not, constitute bullying, harassment or victimisation. Rather, the Law Society was simply fulfilling its regulatory function. Further, in so performing its said functions, the Applicant was treated no differently to any other practitioner.
Finally, in relation to the interlocutory Application, the Law Society submitted that the Applicant had not provided any evidence to support his Application. Rather, Mr Ezekiel-Hart had provided only a series of “bald assertions.”
In relation to the substantive Application, the Law Society submitted that Mr Ezekiel-Hart had provided no sworn affidavit in support of his Application, and otherwise there was no evidence that the Council of the Law Society had acted in any way other than ‘properly’ and in accordance with the Legal Profession Act 2006.
Further, even if the Law Society had made an improper decision in refusing the Applicant an unrestricted practising certificate in 2008, the appropriate course for him was to appeal the merits of the decision in the ACT Supreme Court for a hearing de novo under s.81 of the Legal Profession Act. Amidst the significant number of challenges mounted by Mr Ezekiel-Hart, that statutory course outlined under the Act to challenge the Law Society’s 2008 decision was never taken.[14]
[14] See further the comments in this regard by Refshauge J in [2012] ACTSC 103 among other places at [70] – [77].
Moreover, despite the claim of the Applicant to have been harassed by the Law Society since 2008, from 2009 the Law Society issued him with a practising certificate until he voluntarily withdrew his application for an unrestricted practising certificate on 10th September 2013.
In all the circumstances, and primarily the history of litigation between the parties over the same issue, the Law Society submitted that the substantive Application should be dismissed with costs.
The Second Respondent’s Submissions: The Commission’s submissions were in three parts.
The first submission was that the Applicant had filed no evidence in support of the [primary] Application, and nothing filed in opposition to the Commission’s summary dismissal application, in which case the proceedings generally should be summarily dismissed.
Secondly, in addition to supporting and relying upon the Law Society’s submissions and evidence, by reference to Spencer v Commonwealth (at [52] – [53] and [56] in the reasons of Hayne, Crennan, Kiefel and Bell JJ), the Commission submitted that the Court should exercise its power, under s.17A of the Federal Circuit Court of Australia Act1999 and summarily dismiss the proceedings.
The Commission also relied upon observations by Gordon J in Jefferson Ford (doubtlessly inadvertently referring to her Honour in the submissions on a couple of occasions as “his Honour”) for criteria to be considered as to whether a proceeding has no reasonable prospects of success.
Thirdly, as noted in the correspondence earlier referred to, the Commission observed that the Applicant’s contentions in relation to being discriminated against on grounds of race or ethnicity date back to 2009 and 2010, with one exception. That exception related to a case involving a Mr Field, who was previously granted legal aid when represented by another practitioner. It was contended by the Applicant that when a further application was sought by Mr Field for legal aid and the relevant form had the Applicant listed as the legal practitioner, legal aid was denied him.
The Commission submitted that in the circumstances regarding Mr Field, at its highest, it was (in my words) an assertion coupled with an inference, but still with no evidence produced or provided by the Applicant. This is insufficient to sustain the contention(s) of the Applicant.
As earlier noted, the Commission submitted that, in the absence of any evidence (relevant or otherwise) from the Applicant, none of the claims for relief could or should be granted. For example, the Commission submitted (par.22) that:
The Applicant’s allegation of racial discrimination never rises above an incantation that things were done or left undone so as to disadvantage him, cause him hardship, cause him frustration, to spite him and to chase him away because he is an “unwanted Black African descent private lawyer.”
There was no evidence provided to the Court in relation to (a) the precise nature, extent or the quality of the work the Applicant undertook for legally aided clients; (b) the estimated losses claimed by the Applicant; and (c) any psychological harm or anxiety suffered by the Applicant.
Consideration
In Three Rivers District Council v Governor and Company of the Bank of England (No.3) (“Three Rivers”),[15] which was cited with obvious approval by French CJ and Gummow J in their joint judgment in Spencer v Commonwealth,[16] Lord Hope said (internal citations omitted; emphasis added):
The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, ... that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.
[15] [2003] 2 AC 1 at p.260-261 [95].
[16] (2010) 241 CLR 118 at pp.130 & 132 [21] & [26].
Each of the highlighted sections from Lord Hope’s judgment in Three Rivers aptly describes the Applications currently before the Court. This is to say that -
(a)even if Mr Ezekiel-Hart were able to establish all the facts he alleges (which he patently cannot), I do not see how he can succeed as a matter of law;
(b)in circumstances where, as here, there is no evidence provided by the Applicant, and abundant evidence provided (primarily by the Law Society) that disproves the contentions advanced by the Applicant, together with the very significant litigious history of adverse rulings against the Applicant where those matters dealt with essentially identical factual and other issues that are resurrected [again] in the instant applications, the factual bases of the claims are fanciful and without substance;
(c)because of the matters just noted, it is perfectly proper that, pursuant to s.17A of the FCCA Act, the proceedings in their entirety be summarily dismissed because they are “not fit for trial at all.”
The statutory basis upon which the Court exercises such a course is located in s.17A of the Federal Circuit Court of Australia Act 1999. That section states:[17]
[17] S.17A of the Federal Circuit Court of Australia Act 1999 mirrors s.31A of the Federal Court of Australia Act 1976. Thus, the jurisprudence in relation to s.31A is relevant to the consideration of s.17A.
(1) The Federal Circuit Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Circuit Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Circuit Court has apart from this section.
Rule 13.10 of this Court’s Rules relevantly provides as follows:[18]
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; …
[18] This Rule also provides for the summary dismissal of matters where they are considered to be frivolous or vexatious, or an abuse of process.
The following is a short list or representative selection of decisions that have considered relevant principle regarding summary dismissal applications: White Industries Australia Ltd v Federal Commissioner of Taxation, Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd, Australian Securities and Investments Commission v Cassimatis, and the Full Court decisions in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Polar Aviation Pty Ltd v Civil Aviation Safety Authority.[19]
[19] White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 (Lindgren J), Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 (Rares J), Australian Securities and Investments Commission v Cassimatis (2013) 302 ALR 671 (Reeves J), and the Full Court decision in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 (Finkelstein, Rares & Gordon JJ). In the latter case, see especially the six principles set out by Gordon J at [123] – [134]. I take note also of Finkelstein J’s helpful, and rather direct, discussion of Jefferson Ford in Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41. See his “dialogue”, especially at [7] – [9], of the distinction between summary judgment and strike out applications. In a non-statutory context, see also the principles set out by Kirby J in Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 at [14]. More recently still, the Full Court (Perram, Dodds-Streeton & Griffiths JJ) has discussed many of these earlier authorities in Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325.
For current purposes, the following from Sundberg J’s comments in Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd provides a convenient summary of principle, where his Honour said, at [37]:[20]
[37] In applying s 31A, the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial: see Jefferson Ford 167 FCR at [23] (Finkelstein J), [74] (Rares J) and [130] (Gordon J); see also Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257 at [28] (Emmett J); Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6] (Finkelstein J). Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial.
o In assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences (but only reasonable inferences) in favour of the non-moving party: see Jefferson Ford 167 FCR at [132] (Gordon J). Moreover, where the evidence on a summary judgment application is of an ambivalent character, there will be a real issue of fact and therefore reasonable prospects of success for the purposes of s 31A: see Boston 236 ALR at [45]; Jefferson Ford 167 FCR at [73] (Rares J) and [130] (Gordon J).
o The moving party bears the onus of persuading the court that its opponent has no reasonable prospects of success: see Jefferson Ford 167 FCR at [127] (Gordon J); Boston 236 ALR at [45]. However, where the moving party establishes a prima facie case for summary judgment, the opposing party must be able to point to “specific factual or evidentiary disputes that make a trial necessary”: see Jefferson Ford 167 FCR at [127] (Gordon J).
o As s 31A requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim: see Jefferson Ford 167 FCR at [20] (Finkelstein J); Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] (Gilmour J).
[20] Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499. My summary of principle, using the cases mentioned, is set out in Amalgamated Commercial Holdings Pty Ltd v Compas Pty Ltd and Australian Competition and Consumer Commission (2011) 203 IR 411.
Sundberg J’s remarks have been endorsed in subsequent cases, some of which are post the High Court judgment in Spencer v Commonwealth (noted below). Thus: Kenny J in Deputy Commissioner of Taxation v Southgate Investments Funds Limited, and Ryan J in Helal v McConnell Dowell Constructors (Aust) Pty Ltd.[21]
[21] Respectively, [2010] FCA 129 at [22], and [2010] FCA 1462 at [12]. See also the comments of Bennett J in Australian Competition and Consumer Commission and Another v Link Solutions Pty Ltd (CAN 126 049 214) and Others (No 2) [2010] FCA 919.
In Spencer v Commonwealth, French CJ and Gummow J said, at [24]: “The exercise of powers to summarily terminate proceedings must always be attended with caution.” Their Honours further advised, at [25] – [26] (internal citations omitted: emphasis added):[22]
[25] Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "”fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
[26] Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.
[22] See also the detailed observations by Hayne, Crennan, Kiefel and Bell JJ at [51] – [60]. See, too, the earlier comments of Gleeson CJ, Gummow, Hayne & Crennan JJ in Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at p.275 [46] (internal citations omitted): “Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." These remarks from Batistatos were cited with approval in Spencer at pp.131-132 [24].
To the above, I simply note the Full Court’s brief observation in Davis v Insolvency and Trustee Service Australia,[23] at [18]: “… we do not read Spencer as requiring that summary relief be withheld where there are factual disputes about matters which are not material to the resolution of the litigation.”
[23] [2010] FCAFC 141.
On a number of occasions in the course of these reasons I have noted the signal failure of Mr Ezekiel-Hart to file any evidence in support of his primary Application. The very limited affidavit he filed in relation to his interlocutory Application provided little, or no, assistance to the Court in support of it. Like his submissions, the matter was unfortunately prosecuted by the Applicant on the basis of extravagant assertions, wholly unsupported by evidence, and in the face of abundant documentary evidence from the Respondents, which clearly disproved his contentions. And further to this, there is the oft-referred to litigious history where the same issues have been traversed in the ACT Supreme Court and in the Federal Court of Australia, all of them adversely to the Applicant.
In such circumstances, all Applications filed by the Applicant, in my view, have no prospect of success at all. They should be summarily dismissed. The Applicant should pay all relevant costs associated with those Applications.
The Application Under s.88Q: A Vexatious Litigant?
One further matter remains: namely, whether the Court should declare the Applicant a vexatious litigant, pursuant to s.88Q of the FCCA Act. That section relevantly provides:
(1) This section applies if the Federal Circuit Court of Australia is satisfied:
(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.
(2) The Federal Circuit Court of Australia may make any or all of the following orders:
(a) an order staying or dismissing all or part of any proceedings in the Federal Circuit Court of Australia already instituted by the person;
(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Federal Circuit Court of Australia;
(c) any other order the Federal Circuit Court of Australia considers appropriate in relation to the person.
…
(4) The Federal Circuit Court of Australia may make a vexatious proceedings order on its own initiative or on the application of any of the following:
(a) the Attorney‑General of the Commonwealth or of a State or Territory;
(b) the Chief Executive Officer;
(c) a person against whom another person has instituted or conducted a vexatious proceeding;
(d) a person who has a sufficient interest in the matter.
(5) The Federal Circuit Court of Australia must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(6) An order made under paragraph (2)(a) or (b) is a final order.
(7) For the purposes of subsection (1), the Federal Circuit Court of Australia may have regard to:
(a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b) orders made by any Australian court or tribunal; and
(c) the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
In Freeman (A Bankrupt) v National Australia Bank, the Full Court of the Federal Court of Australia set out some basic principles in relation to a court determining whether a litigant is vexatious.[24] It will readily be seen that a number of the Full Court’s considerations are statutorily enshrined in s.88Q. In Freeman v NAB, the Court (Sundberg and Kenny JJ; Gyles J agreeing) said, at [24] (emphasis added):
(a) in determining whether particular proceedings instituted in the Court are in fact vexatious, it may be appropriate to take account of proceedings in other courts where, for example, they have authoritatively resolved the particular issue against the person instituting the proceedings;
(b) the expression "”habitually and persistently” implies more than "”frequently”; “habitually” suggests that the institution of a proceeding occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; “persistently” suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness;
(c) whether a person “without any reasonable ground institutes a vexatious proceeding” is to be determined objectively, and it is therefore immaterial that the person may believe in the justice of his or her argument and may not understand that the argument has been authoritatively rejected;
(d) where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings to enforce such decision, which is in substance an attempt to re-litigate what has already been decided, is the institution of legal proceedings for the purposes of the rule.
[24] Freeman (A Bankrupt) v National Australia Bank (2006) 203 ALR 225. See also the more recent Full Court decision in Kowalski v Mitsubishi Motors Australia Ltd (2011) 198 FCR 153 at [142] – [154].
Respectfully, the criteria set out by the Full Court in Freeman v NAB applies to the consistent and persistent litigation by Mr Ezekiel-Hart, which has now been traversed in three courts, and more than once in the superior courts, arising out of the same factual circumstance. The matters before this Court have been authoritatively determined in the superior Courts to which I have referred repeatedly in these reasons. It matters not, as I have said, that the particular [statutory] guise under which they are presented in this Court is slightly different to the guise used in the other courts.
In my view, Mr Ezekiel-Hart has stubbornly refused to accept the decisions of the superior courts mentioned, and has essentially sought to re-litigate the same matters now in this Court. In his appeal in the Federal Court of Australia, Yates J said, at [38]: “The Applicant appears incapable of accepting these [earlier] rulings, even though, as a legal practitioner with an unrestricted practising certificate, he should well-understand the nature and legal significance of them.” His Honour went on (in the same place), to say:[25]
The controversy embodied in the 2009 proceeding and in 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 simply by “switching courts” to embark upon yet another attempt to litigate the same controversy.
Respectfully, I adopt his Honour’s comments as applicable to the Applications brought by Mr Ezekiel-Hart before this Court.
In the words of Gyles J in Freeman v NAB, at [53], Mr Ezekiel-Hart has a “strong sense of grievance.” Unfortunately, in my view, such a sense has overwhelmed any proper sense of perspective or proportion, and certainly any objective assessment of the issues, the evidence and the decisions previously – and consistently – made against him. He has been blinded by his sense of grievance, as well as an unjustified sense of entitlement. Respectfully, the Applicant’s case was not assisted by the often unintelligible and clearly unsubstantiated submissions filed in the proceedings in this Court. Justices in other Court have made similar remarks, with Yates J (for example) describing one particular submission by the Applicant as “bizarre and unexplained.”[26] Mr Ezekiel-Hart may also have under-estimated the resolve of the Law Society (and the Commission to the degree relevant) to resist the ongoing applications filed against it, and to follow the procedures prescribed by the Legal Profession Act 2006.
[26] See [2013] FCA 725 at [40]. See too the comments by Refshauge J in [2012] ACTSC 103 at [119] regarding the poverty and difficulty of the Applicant’s submissions, and at [127] – [134] in relation to the Applicant making unsubstantiated allegations.
His written submissions, filed on 18th December 2013, essentially re-visit topics or submissions previously made. The submissions refer to:
(a) the ‘justice” of the distribution of work by the Legal Aid Commission,
(b) the ‘injustice’ of excluding Mr Ezekiel-Hart from this work, which (he submits) is because he is a “Blackman”,
(c) the current matter before this Court is “new” (in my view, it is not),
(d) the allegation (pars. 21, 22, 26, 27, 28 & 56) that both Respondents “tell lies under oath to a court of law” and have misled the Court,
(e) the contention (pars. 37 & 38) that in the ACT Supreme Court, Refshauge J “misapprehended the issues” because his Honour was “misled”,
(f) alleged distinctions made by Foster J in the Federal Court of Australia in the proceeding before his Honour,
(g) the contention that ‘four cases in six years’ is insufficient to found an order that the Applicant be declared a vexatious litigant.
First, a number of the submissions noted are grossly disrespectful, completely inappropriate and should never have been made.
Secondly, the submissions do not consider or grapple with either the terms of s.88Q, the significant history of the litigious contests between the parties, or relevant authority. In short, they do not assist the Applicant at all. Indeed, if anything, they only strengthen the argument for the order sought because nowhere does Mr Ezekiel-Hart give any indication that he will relent in his pursuit of the Respondents, or that he appreciates the resolution of his claim(s) in the superior courts. To transfer his animus and litigious energies to the forum of this Court is little more than an exercise in forum shopping under a different badge, albeit that his fundamental objections remain the same. And in any event, as I have earlier observed, he has raised the issue of racial discrimination in earlier proceedings.
Thirdly, the number of matters or ‘pieces of litigation’, as suggested by Mr Ezekiel-Hart, is not, in my view, an over-riding criterion in making an order pursuant to s.88Q. The ‘volume’ of litigation is but one consideration. In the circumstances of the current matter it is more (a) the persistence and similarity of the matters litigated, (b) the similarity of the claims and the same basic factual matrix, and (c) very significantly, as the judgments in the Federal Court of Australia make plain, the inability or refusal of Mr Ezekiel-Hart to accept or recognise that his claims have been quelled, legally speaking, which are the telling factors in making the order under s.88Q. The contest has to cease, and the consumption of scarce court resources needs to be staunched.
While not a consideration in a summary dismissal application per se, but which may be, in my view, a relevant consideration under the s.88Q application by the Law Society, to state the obvious, extensive if not exorbitant court resources have obviously been expended now across three courts by applications filed by Mr Ezekiel-Hart arising out of the same factual matrix and involving essentially the same issues of contest.
Having regard to the High Court’s clear admonition in Aon Risk Services Australia Ltd v Australian National University about the efficient use of court resources, and the public interest considerations to bring finality to proceedings at the earliest possible time (including that parties should not be “twice [or more] vexed”),[27] in my view, the Court should properly ensure that no further resources are expended in relation to the repetitious ventilation of the same claims, particularly where, as here, they have previously been considered in other courts, and have foundered on the same erroneous factual base.
[27] (2009) 239 CLR 175. Among other places, see the discussion by French CJ at [24] ff.
In an earlier High Court decision concerning orders sought for a person to be declared a vexatious litigant, Toohey J (sitting alone) indicated similar considerations in Jones v Skyring, where his Honour said (emphasis added):[28]
The rule sustains an order that the person shall not, without the leave of the Court or a Justice, begin any action, appeal or other proceeding in the Court; that leave shall not be given unless the Court or a Justice "is satisfied that the proceedings are not an abuse of the process of the Court and that there is prima facie ground for the proceedings". Read in its entirety, the rule is concerned with practice and procedure, reinforcing the power of the Court to protect its own process against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance.
[28] Jones v Skyring (1992) 66 ALJR 810 at 814. I have already referred to the general discussion in Williams v Spautz (1992) 174 CLR 509 in relation to abuse of process considerations. More recently, see the comments of Gageler J in Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 . Abuse of process was an argument considered in the superior court judgments noted earlier (see especially the judgment of Foster J in [2013] FCA 257 at [54] ff.), and featured to some degree in submissions in this Court. However, because of the considerations outlined already, it is unnecessary to traverse this aspect further here, save to record that, on the evidence before the Court, a formal finding, if such be necessary, may confidently be made that the current proceedings filed in this Court by the Applicant, in my view, constitute an abuse of process.
Although recorded earlier in these reasons, I note formally that the Law Society set out in its submissions, filed 28th November 2013, at pars.16-20, its intention to seek, and the reasons for doing so, a vexatious proceedings order under s.88Q.[29] In accordance with s.88Q(5) of the FCCA Act, I also note that Mr Ezekiel-Hart had the opportunity at the hearing of the matter to make submissions in relation to this order sought by the Law Society. Post the hearing, with the Court’s leave, he filed further written submissions. In my view, these opportunities satisfy the procedural fairness requirements of s.88Q(5).
[29] The formal orders sought in this regard are set out in its Amended Application in a Case, filed in Court on 4th December 2013.
The fundamental and most telling fact against Mr Ezekiel-Hart is, whatever is set out in his submissions, the reality of his persistent litigation over many years in many different courts against the Law Society in terms – factually and legally – that are essentially identical and which have been determined on each occasion against him. Moreover, it is not as though he has been prevented from pursuing his chosen profession, because he has been issued with a practising certificate, albeit that it has not been unrestricted as he has sought. The features of his quest against the Law Society are characterised by the same basic factual matrix, and the same general claims of discrimination of one kind or another. On no occasion in any court have any of his claims been sustained. In my view, the litigation must be brought to an end. In all of the circumstances, for the purposes of proceedings or matters in this Court, in my view now the only way this can and should occur is to make the orders sought by the Law Society pursuant to s.88Q of the FCCA.
Disposition
For the above reasons, and (as I have repeatedly said) in particular the frequency of proceedings determined adversely to the Applicant in the superior courts noted, and essentially the same matter (or matters) Mr Ezekiel-Hart has sought to litigate in this Court, there should be a declaration, pursuant to s.88Q, that Mr Ezekiel-Hart is a vexatious litigant. As a consequence of this declaration, and in addition to the reasons earlier given in relation to s.17A of the FCCA Act, all current applications filed by him in this Court must be dismissed.
Further, pursuant to s.88Q(2), there should be orders to the following effect, namely, that the Applicant be prohibited from instituting any further proceedings in this Court that (a) relate to or arise out of the Law Society’s refusal to issue him with an unrestricted practising certificate, and (b) name any of the parties in the current matters (or their servants or agents) and which relate to or arise out of the same refusal to issue the said certificate.
Appreciating the severity of the orders now made against Mr Ezekiel-Hart, and having regard to the wide discretion of the Court in such matters, in my view, it is sufficient in all the circumstances that each of the Respondents should have orders in their favour for all relevant costs concerning, and incidental to, all of the Applications that have now been dismissed, but only on a party-party basis.
I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 04 April 2014
“APPENDIX A”
Schedule of litigation commenced by Mr Ezekiel-Hart against the ACT Law Society
| Date | Matter No | Proceedings/ application | Outcome | |
| 1. | 17/03/09 | SC 303 of 2009 | First round of proceedings commenced by Mr Ezekiel-Hart against the Society, Robert Reis, Larry King and Rod Barnett in the ACT Supreme Court | Proceedings struck out and dismissed by Higgins CJ on 31/8/09, with an order for costs |
| 2. | 28/09/09 | ACTCA 6 of 2009 | Notice of appeal filed by Mr Ezekiel-Hart in the ACT Court of Appeal in respect of the orders of Higgins CJ in SC 303 of 2009 | Struck out as incompetent by Gray P on 19/3/10, with an order for costs |
| 3. | 21/05/10 | C3 of 2010 | Special leave application filed by Mr Ezekiel-Hart in the High Court | Dismissed by Gummow and Kiefel JJ on 29/9/10 |
| 4. | 31/08/11 | SC 303 of 2009 and ACTCA 26 of 2009 | Application filed by Mr Ezekiel-Hart complaining that the orders of Higgins CJ were obtained by fraud and misrepresentation and ought not to be made and that it would be oppressive and contrary to the interests of justice if the costs of the proceedings were to be assessed | Dismissed by Higgins CJ on 2/9/11 |
| 5. | 07/09/11 | SC 640 of 2011 | Second round of proceedings commenced by Mr Ezekiel-Hart against the Society, Robert Reis, Larry King and Rod Barnett in the ACT Supreme Court | Proceedings struck out and dismissed by Refshauge J on 29/6/12 as disclosing no reasonable cause of action and an abuse of process |
| 6. | 28/11/11 | SC 640 of 2011 | Appeal filed by Mr Ezekiel-Hart appealing from orders of Registrar Glover of 21 November 2011 setting aside default judgment | See item 8 |
| 7. | 02/12/11 | SC 604 of 2011, SC 303 of 2009 and ACTCA 26 of 2009 | Application filed by Mr Ezkiel-Hart seeking orders restraining/prohibiting the Defendants from victimising, threatening, intimidating or harassing Mr Ezekiel-Hart | See item 8 |
| 8. | 16/07/12 | ACTCA 68 of 2012 | Notice of appeal filed by Mr Ezekiel-Hart in the ACT Court of Appeal in respect of the orders of Refshauge J in SC 640 of 2011 | Struck out as incompetent by Penfold J on 26/10/12, with an order for indemnity costs |
| 9. | 18/07/12 | CAG 53 of 2012 | Application filed by Mr Ezekiel-Hart in the Federal Circuit Court seeking that the bankruptcy notice be set aside | Dismissed by Registrar Hedge on 9/8/12 with an order for costs |
| 10. | 26/11/12 | ACD 86 of 2012 | Third round of proceedings commenced by Mr Ezekiel-Hart against the Society, Robert Reis, Larry King and Rod Barnett in the Federal Court of Australia | Struck out and dismissed by Foster J as an abuse of process with an order for indemnity costs |
| 11. | 31/05/13 | CAG 53 of 2012 | Application filed by Mr Ezekiel-Hart in the Federal Circuit Court seeking to set aside the orders of Registrar Hedge of 9/8/12 and seeking to set aside the bankruptcy notice | Heard by Judge Neville on 1/8/13 – judgment currently reserved |
| 12. | 07/06/13 | CAG 92 of 2012 | Application filed by Mr Ezekiel-Hart in the Federal Circuit Court seeking a stay of the sequestration order made by Registrar Wall on 6/6/13 | Heard by Judge Neville on 1/8/13 – judgment currently reserved |
| 13. | 01/07/13 | 2013-10354 | Complaint form filed by Mr Ezekiel-Hart in the Australian Human Rights Commission against the Society and the ACT Legal Air Commission | Complaint terminated by a delegate of the Commissioner on 16/8/13 |
| 14. | 30/07/13 | CAG 53 of 2012 | Application filed by Mr Ezekiel-Hart in the Federal Circuit Court seeking that the matters listed for 1/8/13 be stayed and that the applications in CAG 92 and 53 of 2012 be heard separately | Heard by Judge Neville on 1/8/13 |
| 15. | 09/08/13 | SC 303 of 2009 | Application filed by Mr Ezekiel-Hart in first set of ACT Supreme Court proceedings in relation to the interpretation of the costs orders made by Higgins CJ | Dismissed by Master Mossop on 23/8/13 but amended orders issued 28/8/13 |
| 16. | 11/09/13 | CAG 55 of 2013 | Fourth (current) round of proceedings against the Society commenced by Mr Ezekiel-Hart in the Federal Circuit Court | Current proceedings |
| 17. | 24/10/13 | CAG 55 of 2013 | Interlocutory application filed by Mr Ezekiel-Hart in the current proceedings seeking orders prohibiting the Society from harassing, intimidating, bullying, victimising or threatening him | Heard by Judge Neville on the papers, judgment reserved |
- AGLC
- Ezekiel-Hart v The Law Society of the Act [2014] FCCA 658
- Case
- [2014] FCCA 658
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether Mr Ezekiel-Hart's proceedings had no reasonable prospect of success, thereby justifying their summary dismissal pursuant to s 17A of the *Federal Circuit Court of Australia Act 1999* (Cth). This involved considering whether, even if all alleged facts were proven, Mr Ezekiel-Hart could succeed as a matter of law, and whether the factual basis for his claims was fanciful and without substance, particularly in light of the absence of supporting evidence from the applicant and the presence of contradictory evidence from the respondents, coupled with a history of adverse rulings on similar issues.
Judge Neville applied the principles articulated in *Three Rivers District Council v Governor and Company of the Bank of England (No.3)* and *Spencer v Commonwealth*, which permit summary dismissal where a trial of the facts would be a waste of time and money because a party cannot succeed as a matter of law, or where the factual basis for a claim is entirely without substance. The Court found that Mr Ezekiel-Hart's claims met these criteria. The judge noted that there was no evidence provided by the applicant, while the respondents had provided abundant evidence disproving the applicant's contentions. Furthermore, the significant litigious history of adverse rulings against Mr Ezekiel-Hart on essentially identical issues reinforced the conclusion that the claims were fanciful and without substance, and therefore not fit for trial.
The Court ordered that the proceedings be summarily dismissed in their entirety.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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