Re referral under r 6142 (No 3)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Re referral under r 6142 (No 3)
Citation:	[2024] ACTSC 189
Hearing Date:	On the papers
Decision Date:	19 June 2024
Before:	Mossop J
Decision:	1. The Registrar is directed to accept the document entitled “Application in proceeding” lodged by Mr Ezekiel-Hart on 5 June 2024.
Catchwords:	PRACTICE AND PROCEDURE – ABUSE OF PROCESS – Referral of document for directions under r 6142 Court Procedures Rules 2006 (ACT) – document appears to be application for review pursuant to s 67A(11) Supreme Court Act 1933 (ACT) – no leave of court required – where orders sought contain drafting defects – appropriate that document be filed and application listed before a judge – Registrar directed to accept document
Legislation Cited:	Court Procedures Rules 2006 (ACT), r 6142 Supreme Court Act 1933 (ACT), s 67A(11)
Cases Cited:	Ezekiel-Hart v The Council of the Law Society of the ACT (No 7) [2024] ACTSC 12 Re referral under r 6142 (No 2) [2024] ACTSC 167

MOSSOP J:

Introduction

1․The Registrar has, pursuant to r 6142 of the Court Procedures Rules 2006 (ACT), referred a document entitled “Application in proceeding” to me for directions about how to deal with it. The document is sought to be filed by Mr Emmanuel Ezekiel-Hart. The orders sought are:
1.That where required 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
2.Any other orders that the Court deem appropriate

2․Although the application does not identify the proceedings in which it is sought to be filed, the identity of the parties appears to be intended to be consistent with those in proceedings SC 139 of 2023 in which Mr Ezekiel-Hart was declared to be a vexatious litigant: Ezekiel-Hart v The Council of the Law Society of the ACT (No 7) [2024] ACTSC 12.
3․Section 67A(11) of the Supreme Court Act 1933 (ACT) permits a person declared to be a vexatious litigant to apply to the court for revocation or variation of the declaration. No leave of the court is necessary to make such an application.
4․The application appears to be a revised version of the application which I previously directed the Registrar to reject: Re referral under r 6142 (No 2) [2024] ACTSC 167. Although the language of the order sought is somewhat different, it appears to be intended to encompass the order that I had previously indicated I would have treated as an application for review pursuant to s 67A(11): see Re referral under r 6142 (No 2) at [7], [11]. There remain drafting difficulties with the order sought in that the order still contemplates that leave might be required pursuant to s 67A(11) when that is not the case. However, such a difficulty does not mean that the application should be characterised as an abuse of process or frivolous or vexatious.
5․I consider the appropriate course is to permit the document to be filed and list it in the first instance before a judge who can determine whether the intention of Mr Ezekiel‑Hart is simply to invoke his entitlement under s 67A(11), to make any orders necessary to regularise the proceedings and make directions in relation to the conduct of the proceedings.

Direction

6․In those circumstances, the appropriate order pursuant to r 6142(3)(a) is that the Registrar be directed to accept the document. The direction that I make is:
1.The Registrar is directed to accept the document entitled “Application in proceeding” lodged by Mr Ezekiel-Hart on 5 June 2024.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons of his Honour Justice Mossop.

Associate:

Date: 19 June 2024

The case involved a referral by a Registrar of the ACT Civil and Administrative Tribunal (ACAT) under rule 6142 of the Court Procedures Rules 2006 (ACT). The applicant, Mr Ezekiel-Hart, had lodged an application which the Registrar considered to be an application for review under section 67A(11) of the Supreme Court Act 1933 (ACT). Despite the absence of leave of court being required for such applications, the document contained drafting defects. The Registrar sought directions from the Court to manage the procedural issues arising from these defects.

The central legal issue before the Court was whether the document should be accepted and listed for a hearing before a judge despite its drafting defects. The Court needed to determine whether it was appropriate to direct the Registrar to accept the document and list it for hearing, in order to ensure that the applicant's rights were not unfairly prejudiced by procedural errors.

In addressing the issue, the Court considered the purpose of the procedural rules and the need to balance the interests of procedural fairness against the potential for abuse of process. The Court recognised that while the document contained drafting defects, these did not preclude the Court from considering the merits of the application. The Court found that directing the Registrar to accept the document and list it for hearing was the most appropriate course of action, as it would allow the applicant's substantive claims to be heard and any procedural issues to be resolved in the context of a formal hearing. Consequently, the Court directed the Registrar to accept the document and list it for a hearing.

The Court's final order was that the Registrar was directed to accept the document entitled “Application in proceeding” lodged by Mr Ezekiel-Hart on 5 June 2024 and to list it for a hearing before a judge. This decision ensured that the applicant's application would be considered on its merits, while also addressing the procedural concerns raised by the document's drafting defects.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established