Re referral under r 6142 (No 2)

[2024] ACTSC 167

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Re referral under r 6142 (No 2)

Citation: 

[2024] ACTSC 167

Hearing Date: 

On the papers

Decision Date: 

3 June 2024

Before:

Mossop J

Decision: 

1.    The Registrar is directed to reject the document entitled “Application in proceeding” lodged by Mr Ezekiel-Hart on 20 May 2024.

Catchwords: 

PRACTICE AND PROCEDURE – ABUSE OF PROCESS – Referral of document for directions under r 6142 Court Procedures Rules 2006 (ACT) – party attempting to file document has been declared a vexatious litigant – no leave of the court to commence or continue proceedings – no power under r 6142 to direct that document be accepted in part – at least one of the orders sought is an abuse of process – Registrar directed to reject document

Legislation Cited: 

Court Procedures Rules 2006 (ACT), rr 1110(4), 1401, 1613(2), 1614(2), 6142

Human Rights Act 2004 (ACT)

Supreme Court Act 1933 (ACT), ss 34B, 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 “Application in proceeding” lodged with the court by Mr Ezekiel-Hart on 20 May 2024.

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

Orders sought in application

3․The first order that the application seeks is: “That leave be granted to review the decision and orders of the Honourable Acting Justice Curtin on 2 February 2024 in [SC 139] of 2023 pursuant to section 67A(11) SCA 1933”. This is a reference to the decision of Curtin AJ made on 2 February 2024. In that decision, Curtin AJ declared Mr Ezekiel‑Hart to be a vexatious litigant: Ezekiel-Hart vTheCouncil of the Law Society of the ACT (No 7) [2024] ACTSC 12. 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.

4․The application also seeks the following orders:

2.to determine whether the [Tribunal (ACAT)] ultra vire its power by continuing with proceeding stayed by operation of section 67A order of the Court without the leave of the Court; in circumstance that the Applicants to section 67A orders were in concert with the plaintiff in a Tribunal hearing at the time of seeking the section 67A declaration order and want continuation of Tribunal matters without the leave of the Court, such that the plaintiff’s human rights for a fair hearing under the ACT Human Rights Act 2004 was denied.

3.Grant leave for Judicial Review to determine whether Pursuant to Court Procedures Rules [2006 (Rule)], Rule 1613 (2), and Rule 1110 (4), Rule 1614(2) and 1401 and the Human Rights Act 2004 that the Orders made in the absence of the plaintiff while he was sick would be set aside

Consideration of orders sought

5․Section 67A(3) of the Supreme Court Act 1933 (ACT) prohibits a person who has been declared to be a vexatious litigant from instituting proceedings without the leave of the court. Section 67A(11) provides:

Notwithstanding subsection (3), a person declared to be a vexatious litigant may, without the leave of the court, apply to the court for the revocation or variation of the declaration or of any conditions to which the declaration is subject.

6․Therefore, Mr Ezekiel-Hart is entitled to seek revocation or variation of the declaration that he is a vexatious litigant pursuant to s 67A(11) and does not need to seek leave to make that application.

7․The first order that Mr Ezekiel-Hart seeks is an application for leave to “review” the decision of Curtin AJ. Notwithstanding that the order seeks leave to “review” the decision and some of the grounds upon which the order is sought refer to “judicial review”, if the application was limited to seeking order 1 then, notwithstanding its drafting difficulties, I would have treated it as an application for review pursuant to s 67A(11), which the applicant was entitled to bring without a grant of leave and was not otherwise frivolous, vexatious or an abuse of process.

8․The second order sought seems to relate to proceedings currently being conducted in the ACT Civil and Administrative Tribunal (ACAT). The grounds of the application also make reference to proceedings in ACAT. Both the orders sought and the grounds upon which they are sought are difficult to understand. They suggest that ACAT has treated proceedings before it as being subject to the s 67A declaration and, as a consequence, ended an internal appeal brought by Mr Ezekiel-Hart. That the declaration would apply in ACAT proceedings appears to be consistent with the very broad definition of “proceedings” in s 67A(1). If Mr Ezekiel-Hart considered that he should be entitled, without the leave of the Supreme Court, to commence proceedings in ACAT, then that would be a matter that could be raised by him in an application pursuant to s 67A(11). It would be open to him to seek that the declaration under s 67A be varied so as to exclude such proceedings from its scope. However, that does not appear to be what is intended by the application in proceeding. I reach that conclusion because there is no reference to s 67A(11) in the order sought and because the sources of power identified at the commencement of the application extend beyond s 67A(11) and include s 34B of the Supreme Court Act along with a reference to “Mandamus and Prohibition”. Given that, to the extent that the claim for relief is understandable, it is not limited to an application under s 67A(11) and no leave has been sought pursuant to s 67A(3), the seeking of the order amounts to an abuse of process.

9․The third order sought:

(a)seeks a grant of leave;

(b)for “Judicial Review”;

(c)to determine whether certain rules (rr 1613(2), 1110(4), 1614(2) and 1401 of the Court Procedures Rules) and the Human Rights Act 2004 (ACT);

(d)require orders made “in the absence of the plaintiff while he was sick” to be set aside.

10․The balance of the document indicates that the order sought is targeted at the order of Curtin AJ made under s 67A. Given that there is an entitlement under s 67A(11) to bring an application for revocation or variation of the declaration or any conditions to which the declaration is subject, this claim for judicial review is unlikely to be useful. Given that prerogative relief directed to a judicial decision of the Supreme Court is not available (see Ezekiel‑Hart v Council of the Law Society of the ACT [2022] ACTSC 117 at [15]‑[20]) and having regard to the terms of the rules relied upon, this order appears to be seeking an order under those rules. That would be an application to set aside the order made by Curtin AJ pursuant to the rules identified because it was an order made in the absence of Mr Ezekiel-Hart.

Summary

11․In relation to the application for order 1, had no other order sought been an abuse of process, I would have directed the Registrar to accept the document notwithstanding the defects in it, as I would have treated it as an application pursuant to s 67A(11).

12․The application for order 2 is an abuse of process because it seeks an order which is not an order pursuant to s 67A(11) without seeking leave pursuant to s 67A(3).

13․The application for order 3 is, on its face, an application for a grant of leave. Although it makes no reference to s 67A(3), I would have treated it as an application for leave pursuant to that provision to make an application under the rules identified by Mr Ezekiel‑Hart.

Conclusion

14․Rule 6142(3) provides that the judge may direct the Registrar to accept the document, reject the document or reject the document unless the court gives leave to accept the document. The rule does not give power to direct that part of the document be accepted or that the document be accepted on the condition that it is amended in any particular way. Given that at least one of the orders sought in the document amounts to an abuse of the processes of the Supreme Court, the appropriate direction is that the Registrar reject the document. If an amended document or revised application is received, the Registrar will need to consider that on its merits.

Direction

15․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 “Application in proceeding” lodged by Mr Ezekiel-Hart on 20 May 2024.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons of his Honour Justice Mossop.

Associate:

Date: 3 June 2024