Ezekiel-Hart v The Law Society of the Australian Capital Territory

[2014] FCCA 400

FEDERAL CIRCUIT COURT OF AUSTRALIA

EZEKIEL-HART v THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY & ORS [2014] FCCA 400

Catchwords:
BANKRUPTCY – Review of separate decisions by registrars (regarding bankruptcy notice and sequestration order) – questions of delay by debtor – disqualification application on basis of decision made in family law proceedings considered by debtor to be adverse to him – prior consent of Applicant to consolidate review proceedings.

Legislation:

Bankruptcy Act 1966, ss.47(1), 52(1)

Federal Circuit Court of Australia Act1999, s.104(2)

Federal Circuit Court Rules 2001, Division 20.2
Federal Circuit Court (Bankruptcy) Rules 2006, r.2.03(1)

Australia & New Zealand Banking Group Limited v Foyster [2000] FCA 400
Australian Securities and Investments Commission v Forge (2003) 133 FCR 487
Re Capel; Ex parte Caram Finance Australia Ltd [1998] FCA 372
Coleman v Lazy Days Investments Pty Ltd (1994) 55 FCR 297
Corney v Brien (1951) 84 CLR 343
Daly v Watson (1994) 50 FCR 544; 128 ALR 309
Dowling v The Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509
ICM Agriculture Pty Ltd v Young (2009) 260 ALR 515
Joosse v Deputy Commissioner of Taxation (2004) 137 FCR 576
Kyriackou v Shield Mercantile Pty Ltd (2004) 138 FCR 324
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427
Pattison v Hadjimouris (2006) 155 FCR 226
Re Sterling; Ex parte Esanda Ltd (1980) 44 FLR 125

Russell v Polites Investments Pty Ltd [2012] FCA 11
Totev v Sfar (2008) 167 FCR 193
Trojan v Corporation of Hindmarsh (1987) 16 FCR 37
Wren v Mahoney (1972) 126 CLR 212

Applicant: EMMANUEL TAM EZEKIEL-HART

First Respondent: THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

Second Respondent:

Third Respondent:

Fourth Respondent:

ROBERT REIS

LARRY KING

ROD BARNETT

File Numbers:

CAG 53 of 2012

CAG 92 of 2012

Judgment of: Judge Neville

Hearing date: 1 August 2013

Date of Last Submission: 27 August 2013

Delivered at: Canberra

Delivered on: 6 March 2014

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Mr N Beaumont

Solicitors for the Respondents: Phelps Reid Lawyers, Canberra

ORDERS

1. Interim Application, filed 30^th July 2013, be dismissed.

2. The Application for Review in matter CAG 53 of 2012, filed 31^st May 2013, be dismissed.

3. The Application for Review in matter CAG 92 of 2012, filed 7^th June 2013, be dismissed.

4. Because of the order for the consolidated determination of both review applications, there is to be only one amount of costs payable by the Applicant, either as agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 53 of 2012

CAG 92 of 2012

EMMANUEL TAM EZEKIEL-HART

Applicant

And

THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

First Respondent

ROBERT REIS

Second Respondent

LARRY KING

Third Respondent

ROD BARNETT

Fourth Respondent

REASONS FOR JUDGMENT

Introduction

1. The Court has before it three applications.  The primary applications are to review decisions by two Registrars, the first in relation to a bankruptcy notice, the second in relation to a sequestration order.  The dates of the review Applications and the decisions sought to be reviewed are as follows:

   (i)Application for review, filed 31^st May 2013, of a decision of Registrar Hedge, dated 9^th August 2012, dismissing an application to set aside a bankruptcy notice (CAG 53/2012);

   (ii)Application for review, filed 7^th June 2013, of a decision of Registrar Wall, dated 6^th June 2013, to make a sequestration order (CAG 92/2012).

2. The third application is an Interim Application filed by Mr Ezekiel-Hart on 30^th July 2013 to seek a stay of proceedings in this Court pending a “review application” in the ACT Supreme Court.  The details of that application are set out further below.

3. The current proceedings are seemingly part of a litigious war of attrition that has been conducted between the parties over a considerable period of time and in a diverse range of Courts – Supreme Court of the Australian Capital Territory, the Federal Court of Australia and now in this Court.  Save for what is noted later in these reasons I need not recount any of the past bellicose entanglements; they are recounted in judgments from the Courts to which I have referred.[1] 

   [1] See, for example, 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. For current purposes, the judgments of Foster J and Yates J are perhaps the most immediately relevant for the helpful overview of the various aspects of the contests between the parties.

4. It is, however, sufficient to note that the on-going imbroglio concerns, at its basal level, Mr Ezekiel-Hart’s attempts to secure an unrestricted practising certificate as a legal practitioner in the Australian Capital Territory and the First Respondent’s resistance to this occurring.  The consequential fall-out of the various legal contests has been, among other things, various costs orders against the Applicant.

5. The first decision challenged or sought to be reviewed in this Court by Mr Ezekiel-Hart was made by Registrar Hedge on 9^th August 2012, who dismissed an Application, on an interim basis, to extend the time of a bankruptcy notice, and on a final basis, to set aside the same notice.  The Application to review the Registrar’s order was filed on 31^st May 2013. 

6. It will be immediately obvious that the time between the making of Registrar Hedge’s order and the filing of the review Application is some 10 months or thereabouts.

7. The second decision under review was made by Registrar Wall on 6^th June 2013, who ordered that a sequestration order be made against the Applicant’s estate, and that fixed costs of $3905.45 be paid out of it.  On that date, the Registrar noted the date of the act of bankruptcy as 9^th August 2012.

8. The Application to review Registrar Wall’s decision was filed on 7^th June 2013.

9. For the reasons that follow, all three Applications must be dismissed with costs, albeit in a somewhat revised, or refined, form.

10. These reasons proceed as follows: (a) procedural history; (b) the Interim Application; (c) outline of principle in relation to review applications; (d) the review applications; (e) discussion and resolution.

A.           Procedural History

1. On 14^th June 2013, the Applicant confirmed that –

   (i)It was appropriate that both review Applications be dealt with together.  In the light of procedural contests which seem to arise not infrequently, it is appropriate to set out the exchange with the Bench in full (emphasis added):[2]

   HIS HONOUR: … one of my questions which is obviously addressed to both sides, is whether or not it would be [a] more efficient use of everyone’s time if both applications were heard together.  Mr Ezekiel-Hart, what do you say?

   MR EZEKIEL-HART:   Your Honour, that is very reasonable and that was actually what I was so proposed before this particular review, that there was a review already before the court, that it would be a duplication of the same matter if we move from another review on related matter.  So it’s sensible, your Honour, to put the two matters in the same day because they are related, your Honour.

   (ii)One single affidavit on behalf of the Applicant, filed on 31^st May 2013 in proceeding CAG 53 of 2012, was relied upon in both review Applications.  It should also be noted that Mr Ezekiel-Hart’s affidavit also dealt with his Application to file out of time the review of Registrar Hedge’s decision (of August 2012);[3]

   (iii)The same affidavit is relied upon by the Applicant in relation to his review Applications and regarding a stay of the sequestration order made by Registrar Wall on 6^th June 2013

   [2] Transcript (14^th June 2013) p.3 (hereafter “T” followed by page number).  The Respondent agreed with this course: T 8.

   [3] T 9-10.

2. Also on 14^th June, at the conclusion of the matter, Mr Ezekiel-Hart made an oral application that I recuse myself from dealing with the review Applications.  The grounds for this application were twofold: (a) because I had granted the First Respondent time to put on material in response to his review Applications; and (b) because I had dealt briefly, and I should note, only on an interim basis, with a family law matter involving him and his family in 2009.  In relation to both grounds, Mr Ezekiel-Hart said that I had not dealt with him, or would not now deal with him, “fairly.”  In his words, on 14^th June 2013, he said:[4]

   [4] T 14.

   HIS HONOUR:   Thank you, Mr Ezekiel-Hart.  If you make that application, we will deal with that in due course. 

   MR EZEKIEL-HART:   I have made the application now, your Honour.

   HIS HONOUR:   Thank you.  On what basis?

   MR EZEKIEL-HART:   On the basis that your Honour has been inclined towards whatever my friend has said.  He has this matter before him.  We have been before Registrar Wall, so all the informations are before you.  He decided to send him to come and refuse those who have to claim permission to be able to deal with this matter.  Now, your Honour decided to make it more painful on me as an individual to remain without certificate until whenever they decided.  That is not fair, and having been with your Honour earlier in matter that consigned me directly, your Honour was not fair to me, and I don’t see how your Honour will be fair to me now, especially in this circumstances where there is no evidence that suggests that there is prejudice, yet your Honour had decided that you’re not going to put a stay when your Honour will have the review.  That, in my respectful submission, is a clear indication of oppression, and I do not accept.  I will seek that your Honour vacate from hearing this matter.  That’s my submission.

3. In more regular terminology, I took Mr Ezekiel-Hart’s application to be founded upon apprehended bias, rather than “prejudice”, “oppression” and “fairness”. 

4. After the Respondent indicated that it had no submission to make on the recusal application I delivered reasons, following which I dismissed the Application that I recuse myself from dealing with the review Applications.

5. In substance, and by specific reference to the principles summarised by the High Court in Michael Wilson & Partners Limited v Nicholls in relation to apprehended bias, in my view, on “an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided”, granting a party time to file material in response to an application before the Court, does not, and cannot, constitute apprehended bias.[5]  Similarly, having made parenting orders some four years ago involving a party currently before the Court (in unrelated proceedings), and where, upon review of that file, that decision was based on an expert’s report but which also involved no adverse finding against the current Applicant, does not and cannot, objectively viewed, constitute apprehended bias.

   [5] Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427, especially at [31] – [33], [63], [67] & [69].

6. For completeness, I note that the decision to dismiss the recusal Application was not appealed, and subject to what is noted below, nor in any of the subsequent Court events (in the current proceedings and in other litigation before this Court) has it been renewed.

7. On 21^st June 2013, following some contested correspondence from the parties, the matter was re-listed.  The Applicant again appeared on his own behalf and Mr Hijazi appeared for the Respondents.

8. The first matter addressed on that occasion was confirmation that, in relation to the stay sought by Mr Ezekiel-Hart, Mr Hijazi (solicitor for the Respondents) confirmed that the Law Society of the ACT would take no action regarding the Applicant’s practising certificate based on the sequestration order made by Registrar Wall.[6]

   [6] Transcript (21^st June 2013) p.2.

9. Secondly, Mr Hijazi submitted that the stay application and the review Applications should be dealt with at the same time.

10. Thirdly, on the basis of the review Applications being listed together for hearing on 1^st August, Mr Ezekiel-Hart submitted that his stay application should, as a matter of course, be granted up until the review applications were heard/determined.  He also confirmed that in correspondence with the Law Society of the ACT and the Court he had put his submissions regarding the propriety of, and necessity for, a stay.

11. In the result, on 21^st June, (in summary) the Court formally ordered that (a) the two review applications be consolidated; (b) the review Applications be heard together on 1^st August 2013; (c) on the basis that Mr Ezekiel-Hart had provided “submissions” by letter regarding his oral application for a stay of Registrar Wall’s orders of 6^th June, the Respondents were to file written submissions (of no more than 3 pages) in reply to the stay application; (d) a time-table was ordered for the filing of written submissions regarding the review Applications (limited to 2 pages for each decision under review); and (e) a stay was granted of Registrar Wall’s orders until the Court had the benefit of the Respondent’s submissions in relation to it.

12. On 28^th June, the Respondents filed an Amended Response to the Applications for Review in both matters.

13. On 29^th July, in matter CAG 92/2012, Mr Ezekiel-Hart filed further submissions. In those submissions he raised issues (summarily stated) (a) in relation to s.117 of the Constitution regarding “disability or discrimination”; (b) his ability to pay the debt owed to the ACT Law Society; (c) that the bankruptcy proceedings are an abuse of process; (d) there are on foot civil proceedings which may provide Mr Ezekiel-Hart with an award of damages greater than the amount the subject of the bankruptcy proceedings; (e) there are on foot appeal proceedings in the Federal Court of Australia in relation to the bankruptcy notice; and (f) the Applicant claimed that he had been “oppressed” by the ACT Law Society because he is a “black man.”

B.            The Interim Application: 30^th July 2013

1. On 30^th July, the Applicant filed an Interim Application in which he sought the following orders:

   (i) That the matter listed for 1 August be stayed till the determination of question of law [sic] pivotal to the grounds in an application before the ACT Supreme Court;

   (ii) That the Application for review CAG 53/2012 be heard separate from Application for Review CAG 92/2012;

   (iii) That the Respondents be given opportunity in the interest of justice to address all grounds of review in that the Applicant wish to pursue all grounds of Review Applications;

   (iv) That the matter be listed before Judge other than Judge Neville

2. An unsealed copy of the Application to the ACT Supreme Court to which Mr Ezekiel-Hart referred is annexed to an affidavit filed by him on 30^th July.  I need not set out the orders sought in that Application.  I need only note that the grounds upon which it is made relate to a question he raises regarding the meaning of the words “incidental to this application” that are part of the ACT Supreme Court’s cost order made against Mr Ezekiel-Hart in May 2009.

3. On 1^st August, Mr Ezekiel-Hart again appeared on his own behalf, and Counsel (Mr Beaumont) appeared on behalf of the Respondents.  Notwithstanding that orders were made on 21^st June that the two review Applications would be heard on 1^st August, on the [listed] hearing date Mr Ezekiel-Hart confirmed that he did not bring to Court with him copies of his [review] Applications.  In such circumstances, it is difficult not to be very concerned about the Applicant’s presumption as to what the Court would do regarding the review hearing in the light of the terribly late filing of his interim application, and Mr Ezekiel-Hart daring or presuming to attend Court without having with him the review Applications that were listed for hearing on that day.

4. Leaving aside this extraordinary circumstance, Mr Beaumont – unsurprisingly - protested about the Application filed the previous day by the Applicant.  After further discussion, orders were made for all matters to proceed by way of written submissions and a timetable to this end was formalised.  Costs were reserved.

5. In the light of the submissions filed, I note the following in relation to Mr Ezekiel-Hart’s 30^th July interim Application.

6. Order 1 sought a stay of the review Applications pending determination of the Application before the ACT Supreme Court.  That matter now having been determined – adversely to the Applicant – there is no need to consider further Order 1.[7]

   [7] A copy of the relevant decision, by Master Mossop of the Act Supreme Court, was provided to this Court by the Respondents. See [2013] ACTSC 182 (23 August 2013). The Respondents also noted that the Application was also nearly two years out of time.

7. Order 2 sought to have each of the review proceedings heard separately.  This is so notwithstanding the discussion (earlier noted) with the Applicant on 14^th June in which he said that it was what he had intended to put to the Court in any event, namely that the matters be heard together.  There was no appeal against the orders made on 21^st June formally consolidating the review Applications.

8. There is nothing in his written submissions, filed on 29^th July, which deal with or refer to the order of this Court of 21^st June to consolidate the two review proceedings.  In circumstances where there has been no formal challenge to the orders of 21^st June, or any evidence or submission why the proceedings should not proceed as consolidated, and where, on 14^th June, the Applicant confirmed his preference for such action to occur, the second ground of Mr Ezekiel-Hart’s Interim Application cannot stand and must be dismissed.

9. The third prayer formally seeks relief on behalf of the Respondents.  This is clearly because of the late filing of his Interim Application.  The Respondents concur with my earlier observation regarding Mr Ezekiel-Hart effectively seeking to resurrect the order previously sought but which he agreed should be “deleted”.  That prayer in the review Application related to the Applicant’s concern that Registrar Wall’s “exercise of power was to please his associate who displayed her displeasure in the Court on 9 May 2013…”

10. Since his agreement on 14^th June 2013 that this ground of review should be removed, and given that there is no [further] evidence to support it being reinstated, this prayer for relief is not made out.  The mere assertion of an allegation is insufficient to support the relief sought.  The Respondents went further in submissions, saying that the paragraph was “scurrilous and disgraceful.”  I need make no further comment.  It is sufficient that there is no basis for the ground in question being reinstated.

11. The fourth prayer again seeks that I recuse myself from the review Applications.  I have already noted that Mr Ezekiel-Hart relies on a lengthy letter addressed to the Chief Justice of the Family Court, dated 1 December 2010, in which he complains about the orders I made in 2009, and those later made by Judge Baumann (as his Honour now is), in 2010.  In this regard I note the following.

12. It is completely unclear what jurisdiction (if that be the apposite terminology) the Chief Justice of one court has in relation to a judicial officer of another court.

13. Secondly, the letter was sent to the Chief Justice more than 12 months after the orders were made in this Court in August 2009.

14. Thirdly, the relevant interim orders made by me about which the Applicant complains were as follows:

    (i) The children [named] spend time with the Father for half a day on either a Saturday or a Sunday on dates and times to be agreed between the parties.

    (ii) The matter be adjourned to 16^th December 2009 at 10.30am

1. Mr Ezekiel-Hart appealed this order.  The appeal was upheld on the procedural ground that, rather than rely upon an expert’s report (as the Court did), it was incumbent on the Court to provide reasons for the orders made.  Subsequently, Mr Ezekiel-Hart’s family law matter was dealt with by Judge Baumann, now quite some years ago.

2. The fourth prayer has no substance.

3. Order (iii) sought by Mr Ezekiel-Hart refers to him seeking to rely on “all grounds of review.”  I take this to be an oblique reference to a discussion that took place on the first return date of the review application, 14^th June.  On that occasion, in the course of discourse regarding the consolidation of the proceedings, I raised with him the utility or propriety of “Order 10”, which referred to his displeasure at some [alleged] reaction by the Court officer during the course of the hearing before Registrar Wall.  He confirmed that he did not press that order sought.[8]

   [8] See T 3-4.

4. Mr Ezekiel-Hart’s affidavit in support of his application to this Court filed on 30^th July also annexes a long letter addressed to the Chief Justice of the Family Court, dated 1^st December 2010, in which he outlined his complaints against me and Judge Baumann regarding parenting orders with which he disagreed at the time.  While he appealed the orders made by me, I do not understand that he appealed any orders made by Judge Baumann, which orders, in a number of respects, mirrored those I had earlier made.  This lengthy letter to the Chief Justice of the Family Court is in support of his further or renewed Application that I recuse myself from the matters currently before the Court.

5. In supplementary written submissions from the Respondents (filed on 27^th August), Counsel confirmed that on 23^rd August 2013, the ACT Supreme Court dismissed Mr Ezekiel-Hart’s review application, to which I have earlier referred.

6. In short, the only matter that could have any merit (and then, given how long it has been on foot, only very remotely) in Mr Ezekiel-Hart’s interim application (styled as a “stay” but otherwise, in effect, an adjournment application) related to the review application before the ACT Supreme Court.  That matter now having been determined, adversely to the Applicant, there is no basis upon which the interim Application could succeed.

7. Further, for the sake of completeness, the recusal application simply repeated an earlier, similar application (to which I have referred).  For the same reasons already given, that application must be refused.  Likewise, for reasons already given, especially Mr Ezekiel-Hart’s earlier agreement that the applications be heard together, the application for separate determinations of the two review applications also must be refused.

8. For these reasons, the interim Application, filed 30^th July 2013, must be dismissed.

C.           Review Applications: Outline of Principle

1. The review of a Registrar’s decision is conducted pursuant to s.104(2) of the Federal Circuit Court Act 1999 (Cth) (“the FCC Act”), and Division 20.2 of the Federal Circuit Court Rules 2001. Section 104(3) of that Act invests the Court with wide power to make such orders as the Court deems fit. Rule 20.03 provides, among other things, for such a review to be a hearing de novo, and that the Court may, with leave being granted, receive further evidence.

2. Further, the nature and conduct of a hearing de novo, as well as consideration of the amplitude of the Court’s power under s.104(3) of the FCC Act, are detailed in Totev v Sfar (2008) 167 FCR 193 at [9] – [15] (Emmett J); O’Meara v Hitwise Pty Ltd (2007) 160 FCR 518 (Kiefel, Sundberg & Gyles JJ); and Pattinson v Hadjimouratis (2006) 155 FCR 226 at [3] – [20] (Nicholson J) and at [39] ff (Jacobson J). 

3. Although said in the context of an appeal regarding a review of the making of a sequestration order, in Pattinson Jacobson J said, at [43]: “… the Federal Magistrates Court [as it then was] commences afresh without in any way being fettered by the decision of the Registrar. The review is a complete re-hearing in the exercise of the original jurisdiction of the Federal Magistrates Court. It is for the party seeking the sequestration order to satisfy the federal magistrate that all of the necessary conditions have been satisfied to warrant the making of a sequestration order ….”

4. Rule 2.03(1) of the Federal Circuit Court (Bankruptcy) Rules 2006 provides (emphasis added):

   Subject to any direction by the Court or a Judge to the contrary, an application under subsection 104(2) of the Act for review of the exercise of a power of the Court by a Registrar under subsection 102(2), or under a delegation under subsection 103(1), of the Act must be made by application for review within 21 days after the day on which the power was exercised.

5. I turn to the applications.  Before doing so, I should note that it will be seen in each of the Applications that there is a significant conflation between orders sought, on the one hand, and the grounds of review, on the other.  Unfortunately, much of Mr Ezekiel-Hart’s material is often opaque and grandiose, which does not aid either himself or the Court in dealing with the disparate grounds of review – in both matters.[9]

D.           The Review Applications

[9] By grandiose, I have in mind the following from Mr Ezekiel-Hart’s submissions, filed in CAG 92/2012, on 29^th July 2013.  At pars.82 and following, the Applicant stated: “if the Court pay no attention to my submissions and allow the Law Society to oppress me, I must say that because it is done by oppression the Law Society will also face my wrath in my own way. … If the Law Society believes in lawlessness I will teach them that the Law is the brain of a civilised community and must be maintained and encouraged in a civilised world.  That is the essence of my coming to Court.  At the least my hands, my legs, my mouth, my pen and the paper are not bound for now, even in prison they shall be my companion for revolution against oppression and injustice.  If the Respondents allow peace and the Court encourages peace devoid of oppression, then peace shall reign between me and the Respondents but if the Law Society continues to wage war against my race and existence, destroying my reputation and expertise before my clients turning them away to law firm of their affiliation, I shall defend myself.”

Matter CAG 53 of 2012

1. On 9^th August 2012, Registrar Hedge dismissed Mr Ezekiel-Hart’s Application (filed 18^th July 2012) to set aside a bankruptcy notice, BN 3496, dated 13^th June 2012.  At the same time, the Registrar also made an order that Mr Ezekiel-Hart pay the Respondents’ costs in the sum of $1000. 

2. On 31^st May 2013, Mr Ezekiel-Hart filed an Application for Review of Registrar Hedge’s orders of 9^th August 2012.  He sought the following orders:

   (i) Set aside the whole of the discretionary orders of Registrar Hedge;

   (ii) Set aside the Bankruptcy Notice BN 3496 issued on 13 June 2012;

   (iii) Find that the Bankruptcy Notice was premature and irregular;

   (iv) Find that the Respondents abused the process by seeking to obtain the Bankruptcy Notice in circumstance [sic] that the Orders from which the debt arose was made without reason and was under review at the time that the notice was obtained;

   (v) Find that the obtaining of the Bankruptcy Notice of 13 June 2012 was for ulterior motives or collateral advantage; namely to take the Applicant [sic] practicing certificate an intent declared since 2008;

   (vi) To put pressure on the Applicant to end the pursuit of his default judgment for damages exceeding the amount claimed, by the Respondents in the ACT Supreme Court which was under review at the time the notice was obtained;

   (vii) Find that the affidavit supporting the Bankruptcy Notice did not comply with the requirement of Section 47(1) of the Bankruptcy Act 1966;

   (viii) The Respondents to pay cost [sic];

   (ix) Any other orders that the Court think fit in the interest [sic] of justice and equity between the parties.

3. By way of general observation, on their face, the orders sought by the Applicant clearly include him seeking to have the Court make certain findings of fact, particularly in relation to the conduct of the Respondents.  Respectfully, subject to comment later in these reasons in relation to “improper purpose”, such matters in the circumstances of this proceeding are beyond the purview of the Application before the Court.

4. Equally problematic are orders sought which fail to identify or particularise sufficiently the complaint alleged, such as prayer (vii), which avers, in very general terms, that “the Bankruptcy Notice did not comply with the requirement [sic] of s.47(1) of the Bankruptcy Act 1966.” How or in what way this failure occurred is not detailed or specified. An Application for Review should clearly identify, rather than require the Court to forage and deduce, the defect in any bankruptcy notice complained of.

5. In his affidavit in support, he contended that on 13^th October 2011, he obtained default judgment against “the Respondents” in the Supreme Court of the Australian Capital Territory for an amount to be assessed.  He claimed the sum of $6,000,000 “for final settlement of the judgment.”

6. He claimed further that the default judgments he obtained, and the default judgment which the Respondents obtained against him, were the subject of appeal, which appeal was lodged on 16^th July 2012.

7. By an order made in Chambers on 18^th July 2012, a Registrar in Sydney extended the time for compliance with the Bankruptcy Notice until 9^th August 2012.

8. On 27^th July 2012, an affidavit on behalf of the Respondents was filed, sworn by Mr McDonald, which ‘responded’ to the affidavit of Mr Ezekiel-Hart filed earlier that month.

9. In this affidavit Mr McDonald deposed that the default judgment in the Applicant’s favour was set aside by orders on 21^st November 2011 by a Registrar of the ACT Supreme Court.  Mr Ezekiel-Hart filed an appeal in relation to those orders on 1^st December; his appeal was dismissed on 29^th June 2012.  On that date, orders were entered in the Respondents’ favour – not by default – by Refshauge J.  His Honour also made an order for the parties to be heard on costs.[10]

   [10] In his judgment of March 2013, [2013] FCA 257 at [33], noted earlier, Foster J confirmed that Mr Ezekiel-Hart was unsuccessful in his appeal from the decision of Refshauge J.

10. It is the debt – of $55,564.76 – from that costs order that is referred to in the bankruptcy notice that was the subject of the application to Registrar Hedge.

11. The principal difficulties for Mr Ezekiel-Hart in relation to this Application for Review are: (a) it is so long ‘out of time’, (b) he does not formally seek an extension of time, and (c) apart from par.4 of his supporting affidavit filed 31^st May 2013 (where Mr Ezekiel-Hart says he could not bring the application any earlier because he was “very sick” [but no details  are provided] and because he was “compressed with family law and my children matters”)[11] he does not give any reason, or otherwise explain, the extreme delay of some nine or ten months or thereabouts in its filing.

    [11] Again, no details of his “family law matters” are provided.  Certainly, as far as this Court is concerned, there have been no family law applications listed in relation to Mr Ezekiel-Hart during the period between the Registrar’s orders and the filing of the Application for Review.  It is, of course, possible to be embroiled in family law matters outside of the Court system and about which the Court has no knowledge.

12. The Registrar’s orders were made in early August 2012.  He did not file his Application for Review until the end of May 2013.  The time for filing such reviews, under this Court’s Bankruptcy Rules, and under the Bankruptcy Act (noted earlier in these reasons) is 21 days after the making of the Registrar’s orders.[12]  Absent any proper or otherwise appropriate reason for such delay, the Application is so far out of time, it should be dismissed.  Such is sufficient to deal with the Application.  However, for the sake of completeness, I will consider briefly each of the grounds of review.

    [12] In addition to Rule 2.03(1) of this Court’s Bankruptcy Rules (2006), as earlier noted there are also review powers under s.104(3) of the Federal Circuit Court Act (1999), and Division 20.2 of the Federal Circuit Court Rules 2001.

13. The Application for Review: prayers (i) – (iii) seek orders to set aside the Registrar’s orders, and that the Court make a “finding” that the bankruptcy notice “was premature and irregular.”  Absent any particularity regarding the bankruptcy notice, as I have indicated, it is not possible for the Court to make any such finding.

14. Prayers (iv) – (vi) seek that the Court make certain findings in relation to the conduct of proceedings between the parties.  Given the history of that litigation, and the formal orders made in the ACT Supreme Court, and in the Federal Court of Australia, to make any such findings would, in effect, require this Court to go behind each of those judgments and the orders made in consequence of them.  Mr Ezekiel-Hart gives his account of, and the background to, the litigation in his detailed supporting affidavit, filed 3st May 2013.

15. The Respondents submit that (a) there is no application to extend time in relation to the nine month delay in filing the Application to Review, (b) in the earlier mentions of the matter before the Court on 7^th March and 9^th May 2013, no mention was made of the matters set out in par.4 of the Applicant’s affidavit filed 31^st May, and (c) nowhere does the Applicant refer to the reasons given by the Registrar for the orders she made.  Because the Applicant makes no reference to those reasons, and therefore does not specify at all where the Registrar is alleged to have erred, the Application for Review should be dismissed.

Consideration & Resolution: CAG 53 of 2012

1. By way of general comment, I note the following.

2. Absent a relevant degree of particularity in relation to Mr Ezekiel-Hart’s contention about alleged flaws in the bankruptcy notice, the Court otherwise has power to remedy any relevant defect in the verification of the petition, for example, by adducing further evidence.[13]

   [13] See Daly v Watson (1994) 50 FCR 544; 128 ALR 309.

3. Here the lack of detail (as well as evidence) in relation to the alleged failure to comply with s.47(1) of the Bankruptcy Act 1966 from Mr Ezekiel-Hart[14] does not allow the Court to determine if there is any relevant defect in such compliance.  That being so, this ground of review must fail.

   [14] Ground 6 of the Application for Review.

4. More generally in relation to those grounds which assert some form of “abuse of process” (grounds (4 & 5), and subject to what is said shortly, the Court has an inherent power to set aside a bankruptcy notice as an abuse of process.[15]  However, such a statement must be understood in the light of the Full Court’s comments in Australian Securities and Investments Commission v Forge at [27] (Emmett J; Branson & Stone JJ agreeing at [16]):[16]

   … the Act gives no general discretion to set aside bankruptcy notices that are valid in form and not an abuse of process. The Act permits the issue of a bankruptcy notice and, if the notice is valid, prescribes the consequences to the bankrupt of non-compliance. The grounds upon which a bankruptcy notice may be set aside must relate to the form or content of the notice, service of the notice or the existence of the debt upon which the judgment, and, in turn, the notice, is founded. Reference to the existence of a debt includes the existence of a counter claim, set off or cross demand equal to or exceeding the amount of the debt: Re Briggs; Ex parte Briggs v Deputy Commissioner of Taxation (WA) (1986) 12 FCR 310 at 312; Re Athans; Ex parte Athans (1991) 29 FCR 302 at 310. Since jurisdiction to set aside a defective bankruptcy notice is not a general discretionary jurisdiction, it differs from the jurisdiction to make a sequestration order under s 52(1), which is expressly discretionary.

   [15] See Re Sterling: ex parte Esanda Pty Limited (1980) 44 FLR 125.

   [16] Australian Securities and Investments Commission v Forge (2003) 133 FCR 487.

5. The Applicant has provided no relevant evidence to support the grounds he raises and the orders he seeks in the Application for Review filed on 31^st May 2013.  Further, the Application is very significantly out of time, and without sufficient or relevant evidence to explain such great delay.  And, in any event, there is no application to seek an extension of time.

6. For these reasons, the Application for Review in matter CAG 53 of 2012 must be dismissed.

Matter CAG 92 of 2012

1. In relation to this Application for Review, filed on 7^th June 2013, the grounds detailed by the Applicant are as follows:

   (i) Stay execution of all the orders of Registrar Wall in matter CAG 92-2012 pending the determination of this review;

   (ii) Set aside the whole of the orders of Registrar Wall;

   (iii) Set aside the whole of the discretionary orders of Registrar Hedge from where the orders arose which was under review prior to Registrar Wall [sic] orders;

   (iv) Set aside the Bankruptcy Notice BN 3496 issued on 13 June 2012;

   (v) Find that the Bankruptcy Notice was premature and irregular;

   (vi) Find that the Respondents abused the process by seeking to obtain the Bankruptcy Notice in the circumstance [sic] that the orders from which the debt arose was [sic] made without reason and under review at the time that the notice was obtained;

   (vii) Find that the Respondents obtained the Bankruptcy Notice on 13 June 2012 for ulterior motives and collateral advantage; namely to take the Applicant [sic] practicing certificate an intent declared since 2008 and to stop the Applicant seeking redress against the Respondents, put pressure on the Applicant to end the pursuit of his default judgment against the Respondents for damages exceeding the debt claimed;

   (viii) Find that the affidavit supporting the Bankruptcy Notice did not comply with the requirement of Section 47(1) of the Bankruptcy Act 1966;

   (ix) Find that Registrar Wall [sic] exercise of power was bias [sic] and in gross abuse of power in circumstance that it was within his knowledge that the Respondents refused to bring their affiants [sic] for the Court to test the truth of their affidavit [sic] and knowledge of payment arrangements discussed and existing review application and Appeal before the Court;

   (x) Find that Registrar Wall [sic] exercise of power was to please his associate who displayed her displeasure on 9 May 2013 when the matter was before the Court;

   (xi) Find that the debt claimed by the Respondents was grossly excessive and could not have arisen from the default judgment as was ordered;

   (xii) The Respondent [sic] to pay cost [sic];

   (xiii) Any other orders that the Court think fit in the interest [sic] of justice and equity between the parties;

2. Because grounds (iii) – (viii) repeat the grounds of review in CAG 53 of 2012 which have already been addressed in these reasons, I will deal only with the remaining grounds in relation to the orders of Registrar Wall made on 6^th June 2013.  On that date, the Registrar made a sequestration order against the estate of Mr Ezekiel-Hart, and a further order that he pay fixed costs of $3,905.45.  The Registrar noted the date of the Act of bankruptcy as 9^th August 2012.

3. In the course of an earlier hearing, I ruled that prayer 10 of the Application should be struck out.  As noted, that ground provides: “Find that Registrar Wall [sic] exercise of power was to please his associate who displayed her displeasure on 9 May 2013 when the matter was before the Court.”

4. Leaving aside its almost scurrilous nature, no evidence was provided by Mr Ezekiel-Hart to warrant its reinstatement to the grounds of review.  Accordingly, I will not treat of that ground any further.

5. Mr Ezekiel-Hart confirmed that his affidavit, filed 31^st May 2013 in proceeding CAG 53 of 2012, should be treated as the evidence in support of the Application for Review in the current proceeding.  I have earlier noted that that affidavit recounts his version of events in the long-running contest with the ACT Law Society and what he perceives, or considers, to be the Society’s clear intent to deprive him of an unrestricted practising certificate.

1. As with the Application for Review in CAG 53 of 2012, earlier in these reasons I noted and listed by citation the litigious history between the parties and how it has been exhaustively and regularly reviewed in the ACT Supreme Court and in the Federal Court of Australia.  That history includes a number of appeal judgments.  As a general observation, the issues canvassed by Mr Ezekiel-Hart in the current proceedings have, by and large, been dealt with in the various judgments in the superior courts to which I have referred.

2. Be that as it may, in addition to this affidavit, Mr Ezekiel-Hart filed detailed written submission on 29^th July 2013.  The Respondents filed submissions on 25^th June (in relation to the stay application of Registrar Wall’s orders); on 27^th June, and further submissions styled ‘amended response’ on 28^th June 2013.  For completeness, and somewhat irregularly, Mr Ezekiel-Hart’s ‘stay application’ of the Registrar’s June 2013 orders is attached to his Application for Review of those same orders.  It was not been filed separately.

3. It is sufficient to refer only to Mr Ezekiel-Hart’s written submissions, filed 29^th July 2013.  In them, he identifies four grounds only: (a) the Notice was premature; (b) the Applicant is able to pay his debt; (c) the Application is instituted to gain collateral advantage and ulterior motives; and (d) the petition is an abuse of process.  The submissions are unfortunately diffuse.

4. Summarily, Mr Ezekiel-Hart’s first contention involves an unsubstantiated link between the payment of court-awarded costs, which is somehow in breach of s.117 of the Australian Constitution because he suffers from the “disability”, or persecution (the Court’s term) by the Law Society, because he is a ‘Blackman.’[17] How s.117 of the Constitution applies to the current review application is not explained. His submission is legally incomprehensible and has no relevant application to the current matter.

   [17] See, for example, pars.6, 45, 56, and 64 of the Applicant’s submissions where there is reference to, for example, the ‘hatred to a Blackman.’

5. Mr Ezekiel-Hart seeks to establish or support that alleged link by reference to certain events that occur, he says, regularly in the ACT Supreme Court by way of protest by a woman who claims to have been over-charged by her lawyers.  Mr Ezekiel-hart says that he was initially involved in the matter.

6. There is no relevant causal nexus between whatever the incidents referred to by Mr Ezekiel-Hart are and the relief sought in the application before this Court.

7. The next ground dealt with is the regularly made submission (see pars.1, 10, 17, 19, 28, 32, 55, 59 & 65 of the submissions) that Mr Ezekiel-Hart is able to pay the outstanding debt to the Law Society.  In support of this submission he contends that (a) he has reached further agreement for payment for professional services from his clients, (b) written to his insurer (he said he tendered the correspondence with his insurer, but it was not provided), and (c) that he is seeking a loan “from within Australia and overseas” that would enable him to pay the debt by 31^st October 2013.

8. Included in his submissions is an email to the President of the ACT Law Society, dated 5^th April 2013, in which he proposed a schedule of payments to satisfy the outstanding debt.  The response to that email (I assume that there was one) was not included.

9. At pars.17 - 19 of his submissions, Mr Ezekiel-Hart stated:

   17. I am able to pay by 31 October the full cost though there is matter still between myself and the Respondents that is pending in the Federal Court.

   18. However, if the Court should consider that I must pay them all the debt now, immediately else the orders sought will be made, I will not do that and will prefer that I am oppressed with the Court and my certificate be taken under force, inequity and oppression to fulfil the record.

   19. However I will arrange in a manner that will not hurt my emotion and stir vengeance, and it will do no prejudice or injustice to the Law Society and I will pay within 6 months by 31 October 2013.

10. It is not possible to comment on these paragraphs in any relevant way, other than to note the Applicant’s contention that he is able to pay “the full cost” by 31^st October.

11. The bulk of the submissions (pars.20 – 65), as I read them, relate to the contentions that the bankruptcy proceedings are designed for an ulterior purpose and are otherwise an abuse of process.  There is also a reference, at par.28 of the submissions, to the Court looking behind the default judgment that gives rise to the debt.

12. Respectfully, the matters traversed in these paragraphs (a) have all been canvassed in the many judgments from the ACT Supreme Court and the Federal Court of Australia, (b) they relate to matters now over many years past, and (c) their relevance to the matters now before this Court in the light of the decisions of the superior courts mentioned, is extremely marginal, at best.  Further, the submissions are often of such a disparate, tangential or opaque nature to the matters before the Court, it is rarely possible to see their utility.

13. Then there is the concerning submission, at par.82, where Mr Ezekiel-Hart states: “If the Court pay no attention to my submissions and allow the Law Society to oppress me, I must say that because it is done by oppression the Law Society will also face my wrath in my own way.”

14. Then, in conclusion, at par.85, Mr Ezekiel-Hart says, whether grandiloquently or with significant opaqueness:

    At the least my hands, my legs, my mouth, my pen and the paper are not bound for now, even in prison they shall be my companion for revolution against oppression and injustice.  If the Respondents allow peace and the Court encourages peace devoid of oppression, then peace shall reign between me and the Respondents but if the Law Society continues to wage war against my race and existence, destroying my reputation and expertise before my clients turning them away to law firm of their affiliation, I shall defend myself.

15. I am not aware that Mr Ezekiel-Hart is facing any risk of imprisonment.

16. In relation to the stay application, it is sufficient to note that I accept the submissions that (a) the Applicant did not appear before Registrar Wall when the Registrar made the sequestration order, and (b) the Applicant has failed to explain or otherwise set out why there should be a stay of the Registrar’s orders. Subject to what is said below, there is no suggestion that the Registrar’s orders were anything other than regularly made. This is also to say that, once the Court is satisfied that the requirements of s.52(1) have been complied with, there is significant authority to the effect that the petitioning creditor has a prima facie right to the making of a sequestration order.[18]  For these reasons, formally the application for a stay must be refused.

    [18] See, for example, the discussion by Flick J in Russell v Polites Investments Pty Ltd [2012] FCA 11.

17. In relation to the Review Application proper, the Respondents submit as follows.

18. The judgment debts arose in August 2009 and March 2010.  Nothing has been paid in relation to the total debt of $55,564.76.  The Respondents confirm that there has been no agreement with the Applicant regarding the payment of that sum.

19. In relation to the submission by the Applicant that the Respondent’s action in the bankruptcy proceedings is to secure the cancellation of his practising certificate, the Respondents make three submissions.

20. First, such a submission was put to and rejected by the Registrar, who found that there was no improper purpose in relation to the creditor’s petition before the Court.

21. Secondly, the Law Society notes that insolvency itself is not a bar to a person holding a restricted practising certificate, but it is a bar to holding an unrestricted practising certificate.  It is noted that the Applicant formerly held an unrestricted certificate, and has applied (as from 1^st July 2013) again for an unrestricted practising certificate.

22. Thirdly, the Respondents rely upon the comments in Dowling v The Colonial Mutual Life Assurance Society Ltd, where the High Court said (emphasis in original text):[19]

    The Judicial Committee held: (1) that the creditor has an absolute right to found a petition for a sequestration order on a statutory act of bankruptcy; (2) that an ulterior private purpose is not necessarily a fraud on the Court; (3) that a by-motive unless there be fraud is not a bar; (4) that an abuse of process does not exist unless the remedy is unsuitable and would enable the person obtaining it fraudulently to defeat the rights of others, whether legal or equitable.

    [19] Dowling v The Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509 at p.521.

23. There is no difficulty with the statement relied upon.  However, there are some “technical difficulties” with it.  The submissions on behalf of the Respondents say that this statement was made by Griffiths CJ.  They give no page or other reference to it (indeed, the authorised citation is not given at all).  The Court has now remedied the deficiencies noted.  The slightly larger problems are: (a) the statement relied upon was in fact made by Isaacs J (not by Griffiths CJ as asserted by the Respondents), and (b) Griffiths CJ in fact dissented in the decision, with Powers J agreeing in the result determined by Isaacs J.  To state the obvious: detail is important.  Attention to detail by Counsel and solicitors in such fundamental matters as proper citation and attribution was obviously lacking in this instance.

24. In any event, the Respondents submit that the High Court statement (now correctly cited and attributed) supports the position against the Applicant.  Further, it was submitted that there has been no finding against the Respondents that any fraud has been perpetrated by them in the current matter.

Discussion & Resolution

1. First, a debtor who claims the capacity to pay debts has the onus to establish solvency.  Mere assertion or protest (without more) of that capacity is insufficient to establish solvency.[20]

   [20] Among many cases, see Trojan v Corporation of Hindmarsh (1987) 16 FCR 37; Re Capel; Ex parte Caram Finance Australia Ltd [1998] FCA 372; Australia & New Zealand Banking Group Limited v Foyster [2000] FCA 400. I note that in the judgment of the Registrar on 6^th June 2013 he noted that, in an earlier judgment, he was not satisfied that Mr Ezekiel-Hart is solvent or has the capacity to re-pay the debt within a short time frame. The Registrar maintained that view on 6^th June. For the sake of completeness, the Registrar also confirmed that he was not satisfied that the Law Society was actuated by any “improper purpose.”

2. Mr Ezekiel-Hart has asserted on many occasions that he can and will pay the debt owed to the Law Society.  He asserted that, in any event, it would be paid by 31^st October 2013.  That date has long since come and gone.  There is no evidence that anything has been paid in relation to the debt.  There is no evidence – other than his assertion - that he can, or that he will be able to, raise sufficient funds to pay the debt owed.

3. In such circumstances, this ground of review must fail.

4. Secondly, in his written submissions, Mr Ezekiel-Hart referred to the Court ‘going behind the judgment’ on which the debt is founded.

5. There is no question that the Court can, in certain circumstances, exercise this power.[21]  However, here, the Court [again] simply has assertion on the part of Mr Ezekiel-Hart, but no relevant evidence.  But more than that, the Court has the range of judgments from the ACT Supreme Court and the Federal Court of Australia, which have conclusively trawled through and made clear findings and orders about the many assertions and contentions of the Applicant.  Those judgments, and the lack of any new evidence from the Applicant leads to the inevitable conclusion that this ground of review cannot succeed and must be dismissed.

   [21] See Corney v Brien (1951) 84 CLR 343; Wren v Mahoney (1972) 126 CLR 212; Joosse v Deputy Commissioner of Taxation (2004) 137 FCR 576.

6. Thirdly, Mr Ezekiel-Hart claims that the exercise of the Registrar’s power and his orders were predicated upon his “bias” and was an abuse of process.

7. The test for apprehended bias is set out in many cases, for example recently by the High Court in Michael Wilson & Partners Limited v Nicholls.[22]  One aspect of it is that there must be a causal or logical link between the conduct alleged and the apprehension of bias.  As the High Court said in Michael Wilson, at [63] (internal citations omitted; emphasis added):

   In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of the apprehension of bias principle requires two steps.  First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits.  And second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.  The plurality in Ebner went on to say that "[t]he bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated".

   [22] Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427.

8. Mr Ezekiel-Hart does not point to any relevant conduct by the Registrar that could or would sustain a claim of apprehended bias.

9. In relation to the allegation of abuse of process, I have earlier noted the Court’s inherent power to intervene in the debtor’s favour, such as to set aside a bankruptcy notice, where such abuse is established.[23]  As with other grounds of review, no relevant evidence has been provided to the Court that would warrant such intervention.

   [23] See, again, Re Sterling (1980) 44 FLR 125.

10. Finally, as to whether there is “any other sufficient cause” to grant the relief sought by Mr Ezekiel-Hart, there is no doubt that the range of circumstances is or can be extremely variable as to whether a court will use such a ground.  In order to rely upon such a ground, the authorities establish that Mr Ezekiel-Hart must show that his claim against one or more of the Respondents “is likely to succeed, [and] not merely that he has an arguable claim.”[24]

    [24] ICM Agriculture Pty Ltd v Young (2009) 260 ALR 515 at [85] (Lindgren J).

11. It is regrettable to have to repeat comments already made many times in these reasons.  However, the reality is that (a) Mr Ezekiel-Hart has produced no relevant evidence to enable, or to warrant, the Court to stay, or to set aside, the sequestration order made by the Registrar on 6^th June 2013 (or in relation to the earlier orders of Registrar Hedge made on 9^th August 2012); and (b) the earlier judgments in the ACT Supreme Court and in the Federal Court of Australia have considered the same matters raised in the current proceedings many times over.

12. For the above reasons, both review applications, filed respectively 31^st May 2013 and 7^th June 2013, must be dismissed.  The Applicant must pay the costs of the Respondents.  However, having regard to the conduct of the proceedings and both review applications being heard and dealt with at the same time, I would only allow one set of costs, rather than two separate costs orders in relation to each application.  Those combined costs for both Applications for Review shall be as agreed or as taxed.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Neville

Associate: 

Date:  6 March 2014