Ford v Council of the Law Society of the Act (Discrimination)
[2024] ACAT 14
•23 August 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
FORD v COUNCIL OF THE LAW SOCIETY OF THE ACT (Discrimination) [2024] ACAT 14
DT 8/2023
Catchwords: DISCRIMINATION – discrimination application dismissed – referral of Human Rights Commission complaint per section 53A of the Human Rights Commission Act 2005 – complaints against applicant raised from the Federal Court of Australia – complaints against applicant raised from the Administrative Appeals Tribunal application dismissed for lack of substance – ACAT dismisses application under section 32(1)(b) of the ACT Civil and Administrative Tribunal Act 2008
Legislation cited: Legal Profession Act 2006 ss 56, 423A
Discrimination Act 1991 ss 7, 8
Human Rights Commission Act 2005 ss 53A, 53CA, 78
ACT Civil and Administrative Tribunal Act 2008 s 32
Cases cited:Agar v Hyde [2000] HCA 41
Casino Canberra Limited v Kidman [2022] ACAT 22
De Pardo v Legal Practitioners Complaints Committee [2000] FCA 335
Errington & Anor v ACT Planning and Land Authority [2019] ACAT 47
General Steel Industries Inc v Commissioner for Railways [1964] HCA 69
Hamzy v Commissioner of Corrective Services (NSW) [2011] NSWSC 120
Mewett v University of Canberra [2018] ACAT 61
Naidu v Causeway Inn Pty Ltd [2015] VCAT 929
Pedrotta v Communities@Work [2022] ACAT 84
Purvis v New South Wales [2003] HCA 62
Shammas v Canberra Institute of Technology [2014] ACAT 2
Tribunal:Senior Member D Kerslake
Date of Orders: 23 August 2023
Date of Reasons for Decision: 23 August 2023
Date of Publication: 2 February 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 8/2023
BETWEEN:
HUGH FORD
Applicant
AND:
COUNCIL FOR THE LAW SOCIETY OF THE ACT
Respondent
TRIBUNAL:Senior Member D Kerslake
DATE:23 August 2023
ORDER
The Tribunal orders that:
The applicant’s discrimination application is dismissed.
………………………………..
Senior Member D Kerslake
REASONS FOR DECISION
Introduction
In the decision and reasons set out below, a reference to “the ACAT” is a reference to the ACT Civil and Administrative Tribunal generally; a reference to “the Tribunal” is a reference to the member presiding in the present case.
On 27 March 2023, a discrimination complaint was referred to the ACAT by the ACT Human Rights Commission (the Commission), pursuant to section 53A of the Human Rights Commission Act 2005.
The ACAT treats the referral of such a complaint as an application for orders (the discrimination application) arising from the alleged breach of the Discrimination Act 1991. For the purposes of ACAT proceedings, the complainant thus becomes the applicant, and the person or entity complained about is the respondent.[1]
[1] Mewett v University of Canberra [2018] ACAT 61 at [11]
The complaint stemmed from a decision to cancel the practising certificate held by Mr Hugh Ford (the applicant), made by the ACT Law Society (the respondent). The applicant had complained to the Commission that the cancellation amounted to unlawful discrimination under the Discrimination Act 1991, on the basis of his political conviction.
Having been notified of the referral of the applicant’s complaint, the respondent applied to ACAT pursuant to section 32 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), seeking orders that the matter be dismissed (the dismissal application) on the basis that it is lacking in substance, frivolous and vexatious, or otherwise an abuse of process.
For the reasons that follow, I have concluded that the discrimination application should be dismissed as lacking in substance.
The factual background
Between September 2017 and May 2018, three complaints against the applicant were made to the respondent, or made by the respondent under its own motion following concerns raised with it by others. The applicant was notified by the respondent that it believed there may be grounds to cancel his practising certificate.
After providing the applicant with the opportunity to respond to the complaints against him, and having taken account of those responses, the respondent cancelled the applicant’s practising certificate on 21 June 2018, pursuant to section 56 of the Legal Profession Act 2006.
This case before the Tribunal stems from a claim of discrimination arising from the cancellation of the certificate. The applicant initially complained to the Commission that the respondent had cancelled his certificate because of his political convictions concerning the rights of refugees, and that this decision constituted unlawful discrimination:
Not only has there been discrimination against refugees, there has been discrimination against me because of my political views.[2]
[2] Applicant’s Complaint to the ACT Human Rights Commission, page 1
On 31 October 2022, the Commission advised the applicant that it had closed the complaint pursuant to subsection 78(1)(a) of the Human Rights Commission Act 2005, on the basis that he had not lodged his complaint until more than two years after the circumstances alleged to have given rise to it.
Under section 53A of the Human Rights Commission Act 2005, within 60 days of a complaint being closed a complainant may request the Commission to refer the matter to the ACAT, in which case the Commission is required to do so. Having received such a request, the Commission referred the applicant’s complaint on 27 March 2023.
On 21 April 2023, the respondent filed with the ACAT an Application for Interim or Other Orders seeking to have the matter dismissed (or for the ACAT to refuse to hear the matter). On 24 April 2023, the ACAT directed the applicant to submit a document setting out particulars of his discrimination application. The applicant complied with that order on 11 May 2023. At a directions hearing on 22 May 2023 the parties were directed to file submissions in relation to the dismissal application. The applicant’s submission was received on 5 June 2023, followed by email correspondence on 19 June 2023. The respondent’s submission was received on 14 June 2023.
The Tribunal heard the dismissal application on 30 June 2023. The respondent was represented by Ms K Binstock. The applicant was self-represented. At the commencement of the hearing the applicant submitted that Ms Binstock should not be heard because she had not presented any documentation signed by members of the Law Council authorising her to represent them. He then submitted that the Tribunal should not accept Ms Binstock’s appearance because she had “harassed” him in the past. When it became apparent that the Tribunal proposed to allow representations from Ms Binstock on the respondent’s behalf, the applicant left the hearing. After adjourning for such time as to allow him to return, the hearing proceeded in his absence.
The respondent’s submissions
In its 14 June 2023 submission, the respondent noted that as the party bringing the application, it bears the onus of showing that the applicant’s case should not proceed.[3]
[3] Citing Shammas v Canberra Institute of Technology [2014] ACAT 2 at [68]
At Annexure A of its dismissal application, the respondent outlined the basis for its submission and the orders sought. It stated that the applicant’s practising certificate was cancelled on the basis that he was no longer considered a fit and proper person to hold such a certificate, having regard to his being:
(a)subject to multiple unresolved complaints;
(b)not of good fame and character; and
(c)unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner.
The respondent further stated that the applicant had been given the opportunity to make, and had made, submissions in relation to the proposed cancellation; that the applicant had appealed its subsequent decision to the ACT Supreme Court, with those proceedings being dismissed by consent; that the respondent has brought disciplinary proceedings against the applicant in relation to the complaints that formed the basis of the cancellation decision; and that those proceedings are currently the subject of an application (from the applicant) for leave to appeal in the ACT Supreme Court.[4]
[4] Respondent’s Application for Interim Orders dated 21 April 2023, Annexure A at [3]-[7]
The respondent’s application included an affidavit sworn by the Law Society’s Professional Standards Manager, Mr Robert Reis. That affidavit outlined the applicant’s practising history and the complaints made against the applicant:
(a)A complaint about the applicant’s conduct from Mr N Dobbie, lawyer, dated 26 September 2017.
(b)An own motion complaint raised by the respondent in relation to correspondence dated 28 March 2018 from the Registrar of the Federal Circuit Court. That correspondence had been sent at the request of his Honour Judge Neville (a judge of the Federal Circuit Court of Australia (FCCA), before whom Mr Ford had appeared as a representative).
(c)An own motion complaint raised by the respondent following receipt of correspondence from the Department of Home Affairs dated 11 May 2018, which included transcripts of proceedings in the Administrative Appeals Tribunal (AAT), and before another judge (Judge McNab) in the FCCA.
In the affidavit, Mr Reis noted that four separate applications for disciplinary action had been filed in the ACAT against the applicant, and that the ACAT had handed down a single decision in relation to all four. He also noted his understanding that section 423A of the Legal Profession Act2006 precluded him from annexing a copy of the ACAT decision to the affidavit.
Forming part of the affidavit was an exhibit (marked RR1) that included copies of correspondence between the respondent and the applicant in relation to the proposed, and later actual, cancellation of the practising certificate. The exhibit also included transcripts of particular court or tribunal proceedings in which the applicant had appeared.
In its submission dated 14 June 2023, the respondent set out in detail the process it had followed leading up to the cancellation of the certificate, and the reasons for that decision. It also set out each of its contentions under section 32 of the ACAT Act. In support of its submission that the complaint was lacking in substance, the respondent described the applicant’s assertion that his practising certificate was cancelled on political grounds as “an untenable proposition”. In support of this, the respondent referenced its letters to the applicant dated 22 May and 21 June 2018 recording the reasons for the decision, which included that there were three unresolved complaints against the applicant.
Submitting that the discrimination application was also an abuse of process, the respondent contended that the applicant was attempting to relitigate matters that had already been decided in a Supreme Court appeal, as well as pointing to the delay between the cancellation decision being taken, and the applicant’s complaint to the Commission. The respondent also contended that the discrimination application was frivolous and vexatious, stating that it had already defended its cancellation decision in the Supreme Court and at other proceedings in the ACAT, and should not be put to the expense of defending further proceedings. The respondent noted that it was only required to make out one of the grounds listed under section 32.
The applicant’s submissions
The applicant’s initial complaint to the Commission asserted that there was no evidence to support the respondent’s decision to cancel his practising certificate which, he said, was taken because of his political convictions concerning the rights of refugees. He repeated this assertion in his submission to ACAT on 11 May 2023.
In his submission of 5 June 2023 (in response to the dismissal application), the applicant outlined a number of court and tribunal decisions that he considered to be relevant to the application of section 32 of the ACAT Act. In light of these cases, he made the following points:
The matters which the Applicant has raised are nor frivolous or for that matter vexatious. They are very serious matters. The suggestion is that the practicing (sic) certificate was cancelled because the Law Society, and in particular Mr Robert Reis was motivated by a personal vendetta to destroy the Applicant’s career …
The baseless and completely false allegations against the Applicant … is (sic) clear evidence of discrimination against the Applicant …
If the matter was not serious, then why did the Human Rights Commission refer the matter to the ACAT? …
Finally, if the Law Society thinks that the Applicants case is so frivolous and vexations (sic), then the easiest way out would be to run the matter … The reason why the Law Society want to strike the matter out is because the matter has every prospect of success.
Relevant legislation
The meaning of discrimination is set out in section 8 of the Discrimination Act:
8. Meaning of discrimination
1. For this Act, discrimination occurs when a person discriminations either directly or indirectly, or both, against someone else
2. For this section, a person against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
3. For this section, a person indirectly against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.
4. However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.
5. In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include—
(a)the nature and extent of any disadvantage that results from imposing the condition or requirement; and
(b)the feasibility of overcoming or mitigating the disadvantage; and
(c)whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.
Should the respondent’s dismissal application fail and the matter proceed to hearing, the applicant would bear the onus of establishing that he had been unlawfully discriminated against. This is clear from the wording of section 53CA of the Human Rights Commission Act 2005:
Section 53CA
1. This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by—
(a)treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination); or
(b)imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because of a protected attribute of the other person (other than a condition or requirement that is reasonable in the circumstances) (indirect discrimination).
2. It is a rebuttable presumption that discrimination has occurred if the complainant—
(a)establishes that—
(i)for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and
(ii)for a complaint about indirect discrimination—the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and
(b)presents evidence that would enable the ACAT to decide, in the absence of any other explanation—
(i)for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or
(ii)for a complaint about indirect discrimination—that the effect of disadvantaging the other person is because of a protected attribute of the other person.
3. The presumption under subsection (2) is rebutted if the person complained about establishes that—
(a)for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person; or
(b)for a complaint about indirect discrimination—the effect of disadvantaging a person is not because of a protected attribute of the other person.
(emphasis added)
The protected attributes referred to are set out in section 7 of the Discrimination Act, and include political conviction – subsection 7(1)(n).
The provisions governing the dismissal or striking out of applications are set down in the ACAT Act:
Section 32
1. This section applies if the tribunal considers that an application, or part of an application is
(a)frivolous or vexatious; or
(b)lacking in substance; or
(c)otherwise an abuse of process; or
(d)made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.
2. The tribunal may, by order, do 1 or more of the following:
(a)refuse to hear the application or part of the application;
(b)dismiss the application or part of the application;
(c)direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—
(i)within a stated period of time; or
(ii)without the leave of the tribunal.
Consideration of the dismissal application
It is clear from the wording of section 32 that the Tribunal may dismiss an application if satisfied that any one of the requirements of section 32(1) has been established: that is, that it is frivolous or vexatious; or lacking in substance; or an abuse of process.
The tests that are applicable to consideration of dismissal applications have been expressed in a variety of ways, in different courts and tribunals:
(a)The test applied In General Steel Industries Inc v Commissioner for Railways was that an applicant should not be denied a hearing unless the lack of a cause of action was “clearly demonstrated” or the case is considered to be so “manifestly faulty that it does not admit of argument”.[5]
(b)Before dismissing an application, a high level of certainty is required that the claim would not succeed if allowed to proceed to hearing in the ordinary way.[6]
(c)In Naidu v Causeway Inn Pty Ltd, the Victorian Civil and Administrative Tribunal stated that a tribunal may, but should only, terminate a proceeding if:
[I]t is obviously hopeless or unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This will include, but is not limited to, a case where an application can be said to disclose no reasonable cause of action or where a Respondent can show a good defence sufficient to warrant the summary termination of the proceeding.[7]
[5] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 at [8], cited in Errington & Anor v ACT Planning and Land Authority [2019] ACAT 47 at [20];
[6] Hamzy v Commissioner of Corrective Services (NSW) [2011] NSWSC 120 at [14]; Agar v Hyde [2000] HCA 41 at [57]
[7] Naidu v Causeway Inn Pty Ltd [2015] VCAT 929 at [38]
As indicated in the factual background set out above, the applicant decided to leave the hearing of this matter early in the proceedings (and therefore did not present oral submissions in relation to the merits of the strike out application). Before determining the matter, I have considered whether there is any reasonable prospect that the applicant could have provided further evidence in oral submissions that might have lent weight to his written submissions. I do not believe that to be the case. Firstly, I note that the ACAT Order dated 24 April 2023 required the applicant to submit a document:
[S]etting out each act, fact, matter, circumstance or thing which either have individually or collectively amounted to discrimination under the Discrimination Act 1991 (ACT) and which was the subject of the complaint of the ACT Human Rights Commission.
This provided the applicant with both the opportunity and requirement to furnish full particulars of his discrimination complaint. He submitted a four-page document in response. Secondly, the applicant also was afforded the opportunity to respond in writing to the dismissal application. In doing so, he took the Tribunal to what he considered to be relevant case law, as well as setting out his own contentions. In all, he filed three written submissions to the ACAT, comprising a total of over ten pages. The Tribunal also had available the applicant’s initial complaint to the Commission, as well as a 17-page document lodged with the respondent by the applicant’s solicitors, on his behalf, responding to the complaints made against him. Finally, given the breadth of the material provided in written submissions from both parties, I do not consider there to be any additional contentions or scenarios that would advance the argument already put by the applicant, that is, that his discrimination application should proceed to hearing.
Whether the discrimination application is lacking in substance (subsection 32(1)(b) of the ACAT Act)
At hearing, the first matter the applicant would need to establish, pursuant to section 8 of the Discrimination Act1991, is that he was subject to unfavourable treatment, or disadvantaged, by the respondent. In Casino Canberra Limited v Kidman (Casino Canberra), the ACAT determined that unfavourable treatment is treatment that is disadvantageous or detrimental to the complainant, and that such detriment is determined by the effect on that person, not by a comparison of the treatment of that person with the treatment of others.[8] No doubt the cancellation of the applicant’s practising certificate was disadvantageous or detrimental to him.
[8] [2022] ACAT 22 at [85]
The applicant would next need to establish that this unfavourable treatment was “because of” a protected attribute, that is, his political conviction. As the High Court stated in Purvis v New South Wales (Purvis):
[T]he central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of”, “by reason of” [a protected attribute]?[9]
Or, as stated by the ACAT appeal court in Casino Canberra (citing Purvis), a complainant “must establish a direct causal link between the unfavourable treatment and the [protected] attribute”.[10] Applying these principles in the context of section 53CA of the Human Rights Commission Act 2005 the question thus becomes, is there evidence that would enable a tribunal to decide – “in the absence of any other explanation” – that the applicant’s practising certificate was cancelled because of his political conviction?
[9] Purvis v New South Wales [2003] HCA 62 at [236], cited in Pedrotta v Communities@Work [2022] ACAT 84
[10] Casino Canberra Limited v Kidman [2022] ACAT 22 at [140]
In his submissions to ACAT the applicant contended that there was “no evidence” upon which to base the cancellation decision, and that the Law Society’s Director of Professional Standards had “dreamt up baseless claims” against him. I cannot agree. In the respondent’s letter to the applicant dated 21 June 2023, advising of the cancellation decision, it listed eight court or tribunal cases that had informed its belief. Among those – in judgments handed down in the FCCA – his Honour Judge Neville referred to the applicant’s: “lack of proper attention to detail” (which, he said, did the person he was representing “no favour at all”); grounds of review set down by the applicant that were “so generalised … as to be ‘unintelligible’ or ‘meaningless’”; and his “lack of preparedness for any hearing”; as well as commenting:
this is the most recent of many matters [brought by the Applicant] in which procedural and basic legal principle has been lacking to a very significant degree.
While the applicant may not share those sentiments, the fact that a Federal Court Circuit judge deemed it appropriate to make such comments, and then refer his concerns about the applicant to the Law Society, renders the claim that the respondent “dreamt up baseless claims” simply untenable.
In one matter, Judge Neville cited comments from De Pardo v Legal Practitioners Complaints Committee in support of his proposed referral to the Law Society: that the power of a court to refer a legal practitioner to a professional body stems not least from the need to protect both the Court and other litigants.[11] Taken together with the number of similar matters raised with the respondent from other sources, this cloaks the concerns raised with the Law Society about the applicant’s conduct and competence with a level of seriousness that a body with its regulatory and public interest responsibilities could hardly ignore. In my view, the number and nature of these concerns is clearly sufficient to show that, should his discrimination application proceed to hearing, it would be bound to fail.
[11] De Pardo v Legal Practitioners Complaints Committee [2000] FCA 335 at [42]-[43]
This conclusion is reinforced by correspondence between the respondent and the applicant. In its letter dated 22 May 2018, the respondent set out in detail the complaints against the applicant. An additional (five page) letter from the respondent’s lawyers detailed the “facts and circumstances” based upon which the respondent believed there may be grounds to cancel the certificate. Together, those letters outlined serious concerns (accompanied by examples), including:
(a)unresolved complaints;
(b)filing applications with no prospects of success;
(c)failure to deliver legal services competently;
(d)failure to follow court procedures and to comply with court orders;
(e)discourteously yelling at a member of the AAT;
(f)providing no, or little, assistance to clients; and
(g)being currently unable to satisfactorily carry out the inherent requirements of an Australian legal practitioner.
I note also that despite the length of his own written submissions, the applicant has provided no more than mere assertion that the cancellation of his certificate was politically motivated. The complaints and concerns that were actually raised with the respondent (from reputable sources), and acted on by the respondent, point clearly in a different direction. For completeness (although nothing turns on this particular point), I note the applicant’s assertion that the very fact that the Human Rights Commission referred this matter to the ACAT is in itself an indication of the seriousness of his claims. He posed the question, does the Commission want this matter struck out?[12] This contention completely overlooks the Commission’s statutory obligation to refer the matter once the applicant had requested that it do so.
[12] Applicant’s submission to the ACAT dated 5 June 2023, page 5
In light of the evidence and reasons set out above I have concluded, with a high degree of certainty, that the applicant’s discrimination application is lacking in substance, and should be dismissed on that basis pursuant to subsection 32(1)(b) of the ACAT Act. I propose to issue orders to that effect.
………………………………..
Senior Member D Kerslake
| Date(s) of hearing: | 30 June 2023 |
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondent: | Ms K Binstock, Thomson Geer Lawyers |
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