Emmanuel Tam Ezekiel-Hart v The Law Society of the Australian Capital Territory, Robert Reis, Larry King, Rod Barnett [2010] ACTCA 6

Court of Appeal (ACT)|2010-03-19|Before: Gray P

1. By a statement of claim attached to an originating claim Mr Ezekiel-Hart, the plaintiff, claimed against the Law Society, the Professional Standards Director, the Executive Director and the President of the Society, various effects upon him consequential upon the Law Society Council declining to grant him an unrestricted practising certificate under the Legal Profession Act 2006 (ACT) in September 2008.

2. Section 81 of the Legal Profession Act confers a right of appeal to this Court against such a decision which was, in fact, not exercised by the plaintiff.

4. However, the plaintiff does claim damages under generally unparticularised heading or headings that the defendants' actions were:

...vexatious and oppressive, abuse of process, bad in faith, fraudulent, an abuse of power or, in the alternative, the act was degrading of the plaintiff's person and, as such, racial and discriminatory, contrary to section 8 of the Human Rights Act 2004, sections 8 and 7 of the Discrimination Act 1991.

5. That general pleading sets the tenor for a series of allegations of causing loss to the Commonwealth, discriminatory marking of the plaintiff's script, discrimination against the plaintiff's children and wrongful activities with respect to the ACT Vice Presidential Election, amongst other matters.

6. The pleadings are in a form which readily lend themselves to a description of proceedings that would tend to prejudice or embarrass the fair trial of whatever cause of action might be the subject of them. I must say, on my reading of the pleadings, there is certainly no clearly discernible cause of action on which the claim for damages is based. The drawing of the pleadings in the form that they are presented, in my view, do not reflect at all well on Mr Ezekiel-Hart's holding of an unrestricted practising certificate.

7. Although the defendants filed a notice of intention to respond and defence to the plaintiff's statement of claim, they also applied to strike out the plaintiff's claim under Court Procedure Rule 425, as well as seeking summary judgment pursuant to Court Procedure Rule 1147. That application was made on 29 July 2009. On 21 August 2009 the matter came before Chief Justice Higgins and materials were handed up to him. The Chief Justice was part-heard at that stage and the matter was adjourned to 31 August 2009. Mr Ezekiel-Hart did not attend on that occasion, although it was indicated that he was unwell and, in those circumstances, the defendants' counsel required that a medical certificate be provided to support any application for an adjournment. On that day the matter was stood in the list until 11.30 am and at that time it proceeded ex parte.

8. Court Procedure Rule 425 provides in subrule (1):

The court may at any stage of a proceeding order that a pleading or part of a pleading be struck out if the pleading -

(a) discloses no reasonable cause of action or defence appropriate to the nature of the pleading; or

(b) may tend to prejudice, embarrass or delay the fair trial of the proceeding; or

(c) is frivolous, scandalous, unnecessary or vexatious; or

(d) is otherwise an abuse of the process of the court.

If the court makes an order under this rule it may also make any other order it considers appropriate, including, for example:

(a) if the court makes an order under subrule (1)(a) an order staying or dismissing the proceeding or entering judgment; and

(b) an order about the future conduct of the proceeding.

10. The Chief Justice, in this matter, clearly made the orders that he did pursuant to Court Procedure Rule 425(3). The plaintiff lodged a notice of appeal against the orders of the Chief Justice. That notice of appeal was lodged on 28 September 2009. The grounds of appeal complain about matters concerning the ex parte application and raise issues concerning the conduct of the defendants with respect to the hearing of that application. Broader allegations are made as to fraud, bad faith and improper exercise of power.

11. On 27 October 2009 the defendants, as respondents to the appeal, made an application to strike out the appeal as incompetent in reliance upon Court Procedure Rule 5472. They are at liberty to do so at any stage of the proceedings before the Court of Appeal and, indeed, it may be advisable that, in fact, they do so because, in the event that the Court holds the proceedings incompetent, they would not be in a position to recover their costs (see Court Procedure Rule 5473).

12. That application came before me on 12 February 2010 and written submissions were filed prior to that hearing. In the defendants' written submissions, attention was drawn to Re Luck [2003] HCA 70; (2003) 203 ALR 1 where the High Court unequivocally held (at [9]) the following:

Given the long established English rule, the decision in Tampion and our decisions in Pye v Hall, Carr v Beinstein, we see no valid reason for departing from the rule laid down in Tampion. An order is an interlocutory order, therefore when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of process of the court, or does not disclose a reasonable cause of action.

(My emphasis.)

13. The parallel to the circumstances that Court Procedure Rule 425(1) refers is obvious. That decision, as a decision of the High Court, is, in my view, binding upon me unless in some way it can be distinguished.

14. No satisfactory reason for distinguishing that decision has been put to me. At the initial hearing of this application to dismiss this appeal as incompetent I gave Mr Ezekiel-Hart the opportunity of raising, in writing, matters which I might consider in respect of such a distinction. Although those written submissions raise an issue with respect to an earlier decision of the High Court in Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35, the submissions do not satisfactorily distinguish the decision in Re Luck from these proceedings.

15. The High Court, in Anshun (No 1), determined that a stay of proceedings in respect of a claim based upon earlier proceedings giving rise to an estoppel was a final order. The issue of whether that case is inconsistent with Re Luck has been the subject of considerable attention subsequently and, in particular, in the Federal Court. In a recent decision of Bracks v Smyth-Kirk [2009] NSWCA 401; (2009) 263 ALR 522, in the Court of Appeal in the Supreme Court of New South Wales McColl JA provided a summary of the position with respect to what was seen to be a potential inconsistency between Anshun (No 1) and Re Luck. That summary was not, in fact, adopted by the Allsop P, who did not consider it necessary to address the various authorities to which McColl JA referred, nor by Young JA, who found it unnecessary to deal with this aspect.

16. Nevertheless, some of the matters dealt with by McColl JA in that case provide the reason why I should take the view that Re Luck, in its essential features, applies to this particular case, and is not to be seen as inconsistent with Anshun (No 1). In Bracks v Smyth-Kirk her Honour said at [31] to [33] the following:

31 In my view this Court is required to apply Anshun (No 1) notwithstanding the later decision in Re Luck. The ratio decidendi of Anshun (No 1) was that an order staying or dismissing proceedings as an abuse of process on the basis that a party is attempting to litigate an issue which is res judicata is a final order. This Court is bound to follow the ratio decidendi of High Court decisions, not decide for itself whether that decision should be departed from: Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395 (at [17]) per Gaudron, McHugh, Gummow and Hayne JJ.

I interpose here that this is not a case of an order for abuse of process made on the basis that a party is attempting to litigate an issue res judicata in other proceedings, and as such, it is therefore distinguishable from Anshun (No 1).

32 Further, I accept, as explained in Egglishaw v Australian Crime Commission [2007] FCAFC 183; (2007) 164 FCR 224, Anshun (No 1) and Re Luck can be reconciled. This Court should follow Egglishaw unless it is plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 (at [135]); C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board (at [49]) per Gummow, Heydon and Crennan JJ. I am not of that view.

33 In Re Luck, the Court said that the question whether an order was final or interlocutory turned on whether the order, as made, finally determined the rights of the parties in a principal cause pending between them. The words "the principal cause pending between them" are important. They echo Windeyer J's judgment in Hall v The Nominal Defendant (at 443 - 444) where his Honour explained that the question whether an order in an action was interlocutory depended on whether or not it resulted "in a final determination of that action" (emphasis added). Similarly, in Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225, in the passage referred to earlier in these reasons, the Court held an order was not final if it was still open to the party to make another application "for the same relief", no matter that it might fail.

19. Having regard to the binding effect of the decision in Re Luck, and in particular having regard to the fact that Court Procedure Rule 1613(2) permits this Court to set aside an order if at any time the order was made in the absence of the party, it cannot, in my view, be at all reasonably put that the decision that the Chief Justice made in this matter was anything other than an interlocutory decision. Accordingly, such a decision requires, pursuant to s 37E of the Supreme Court Act 1933 (ACT), the leave of the Court to appeal that decision. In such circumstances the decision in this case, not being the subject of an application for leave to appeal, I hold that the appeal to this Court is incompetent.

20. Mr Ezekiel-Hart is to pay the costs of the parties that he has named as the respondents to the appeal.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Counsel for the plaintiff/appellant: Mr E Ezekiel-Hart

Counsel for the defendants/respondents: Mr N J Beaumont

Solicitor for the defendants/respondents: Phelps Reid Lawyers

Court Procedure Rule 1147

Court Procedure Rule 5472

Court Procedure Rule 5473

Court Procedure Rule 1613

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