Re referral under r 6142

[2024] ACTSC 148

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Re referral under r 6142

Citation: 

[2024] ACTSC 148

Hearing Date: 

On the papers

Decision Date: 

15 May 2024

Before:

Mossop J

Decision: 

1.    The Registrar is directed to reject the document entitled “Originating application—judicial review” lodged by Mr Ezekiel-Hart on 8 May 2024.

Catchwords: 

PRACTICE AND PROCEDURE – ABUSE OF PROCESS – Referral of document for directions under r 6142 Court Procedures Rules 2006 (ACT) – document seeks to commence judicial review proceedings – party attempting to commence proceedings has been declared a vexatious litigant – no leave of court to commence proceedings – institution of proceedings would be an abuse of process – Registrar directed to reject document

Legislation Cited: 

Court Procedures Rules 2006 (ACT), r 6142

Supreme Court Act 1933 (ACT), s 67A

Cases Cited: 

Ezekiel-Hart v Council of the Law Society of the ACT [2022] ACTSC 117

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

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

MOSSOP J:  

Introduction

1․The Registrar has, pursuant to r 6142 of the Court Procedures Rules 2006 (ACT), referred to me a document headed “Originating application—judicial review” lodged with the court by Mr Ezekiel-Hart on 8 May 2024. The Originating Application seeks judicial review of the decision of Curtin AJ made on 2 February 2024. Relevantly, Curtin AJ had declared Mr Ezekiel-Hart to be a vexatious litigant: Ezekiel-Hart vTheCouncil of the Law Society of the ACT (No 7) [2024] ACTSC 12.

2․An appeal from that decision was struck out as incompetent by McCallum CJ on 3 April 2024: Ezekiel-Hart v Council of the Law Society of the ACT [2024] ACTCA 2.

3․Rule 6142(2)(b) allows the Registrar to refer a document which appears to the Registrar on its face to be an abuse of the Supreme Court’s process to a judge for directions about how to deal with it. The judge may direct that the document be accepted, rejected or rejected unless the court gives leave to accept the document.

4․Section 67A(3) of the Supreme Court Act 1993 (ACT) prohibits a person who has been declared to be a vexatious litigant from instituting proceedings without the leave of the court. No leave of the court was obtained prior to the lodgement of the current Originating Application with the registry. The Originating Application that was lodged did not incorporate within it an application for leave to permit it to be filed.

5․Sections 67A(9)-(10) provide:

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

(10)If practicable, any documents filed or lodged with a court or tribunal by a person in proceedings referred to in subsection (9) shall be returned to the person by the registrar or similar officer of a court or tribunal.

6․There is some ambiguity about the application of these provisions in the circumstances of the present case. That is because, while Mr Ezekiel-Hart has sought to institute proceedings by lodging the application for filing, it has not yet been accepted by the registry because of the vexatious litigant declaration and has been referred to me prior to its acceptance. Because of that, subs (9) might be said not to apply because no proceedings have been “instituted”. On the one hand, that would confine the operation of subs (9) to circumstances where proceedings were allowed to be commenced by accident through a failure to give effect to the prohibition in subs (3). On the other hand, subs (10) refers to the return of any documents “filed or lodged”, which language is apt to pick up both documents that have been accepted by the registry and hence “filed”, as well as those that have been merely “lodged” for the purpose of filing. Alternatively, the distinction between “filed” and “lodged” may merely exist to cover the broad scope of the definition of “proceedings” in s 67A(1) and hence accommodate the language used in any court or tribunal in relation to the processing of documents in the relevant registry.

7․For present purposes, it is not necessary to determine the scope of ss 67A(9)-(10). The matter may be dealt with simply pursuant to r 6142, without the necessity to rely upon ss 67A(9)-(10). Given that the proceedings are sought to be commenced in circumstances where Mr Ezekiel-Hart has been declared to be a vexatious litigant and no leave of the court to commence the proceedings has been sought or obtained, the institution of these proceedings are contrary to s 67A(3) and hence would involve an abuse of process of the court.

8․In those circumstances, it is appropriate to direct the Registrar to reject the document.

9․In my view, it would not be appropriate to take the alternative course of directing the Registrar to reject the document unless the court gives leave to accept the document. That is because the document seeks to invoke the original jurisdiction of the court to exercise its supervisory function in relation to a decision reached in the exercise of judicial power by a judge of the court. That is something which cannot be done: Ezekiel‑Hart v Council of the Law Society of the ACT [2022] ACTSC 117 at [15]-[20].

10․The Registrar will therefore be directed pursuant to r 6142 to reject the document. The direction that I make is:

1.The Registrar is directed to reject the document entitled “Originating application—judicial review” lodged by Mr Ezekiel-Hart on 8 May 2024.

I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons of his Honour Justice Mossop.

Associate:

Date: 16 May 2024