1. On 3 July 2020 the complainant filed the complaint that became these proceedings (the complaint) with the Human Rights Commission (the HRC). The HRC subsequently concluded that the matter was unlikely to be resolved through conciliation and, at the complainant's request, referred it to the tribunal pursuant to section 53A of the Human Rights Commission Act 2005 (HRC Act) on 1 October 2019 (the referral). The referral gives the Tribunal jurisdiction to hear and decide the matter.[1]
2. The complaint was not the only matter commenced by the complainant on 3 July 2020. That same day, the complainant also filed a new application in the Supreme Court (SC 239 of 2020). The Statement of Claim in SC 239 of 2020 and the HRC complaint are in substantially the same terms and both make reference to discrimination, victimisation and alleged breaches of the Human Rights Act 2004 and the International Covenant on Economic, Social and Cultural Rights,[2] amongst other international materials. The complainant seeks substantively identical remedies in both the tribunal and Supreme Court applications, being damages, costs and an apology, as well as a declaration "to vindicate the plaintiff."
3. SC 239 of 2020 and this proceeding are but the latest in a lengthy series of disputes between these parties, stretching over the past eleven or so years. A history of the litigation as at 2014 was tabled by Neville J of the Federal Circuit Court in Ezekiel-Hart v The Law Society of The ACT & Anor[3](FCCA proceedings). His Honour declared the complainant a vexatious litigant. There have been further proceedings since.[4] The respondent is currently seeking vexatious litigant declarations and orders against the complainant in the ACT Supreme Court.
4. The extensive previous litigation between the parties and substantially similar matters in two jurisdictions form the background to the respondent's application to strike-out this proceeding.
5. However, amongst the many factual matters raised is a more recent allegation that the respondent has treated him unfavourably when considering his application for a restricted practising certificate for the 2020-2021 year (2020 matter). There is some question as to whether this allegation can or should be untangled from the previous proceedings.

1. The referral was received by the tribunal on 2 October 2020. The parties were notified and the matter was listed for a directions hearing on 26 October 2020.
2. On 23 October 2020 the respondent lodged a strike-out application, seeking to strike the matter out on three grounds:

(a) An order pursuant to section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) dismissing the application.

(b) Alternatively, an order pursuant to section 32(2)(b) of the ACAT Act refusing to hear the application.

(c) In addition to orders 1 or 2, a direction pursuant to section 32(2)(c) of the ACAT Act that no further human rights complaints to the HRC made by the complainant be referred to the tribunal without the tribunal's leave.

1. The grounds upon which the respondent sought the orders are:

(a) The complainant has commenced proceedings in the ACT Supreme Court and the statement of claim in those proceedings is substantially identical to his complaint to the ACT Human Rights Commission, the subject of these proceedings.

(b) The defendants to the ACT Supreme Court proceedings have applied for summary judgment and vexatious litigant relief, and that application was heard on 26 November 2020.

(c) The proceedings in the tribunal are plainly an abuse of process.

(d) The complainant has previously been declared by the Federal Circuit Court to be a vexatious litigant and has a history of commencing vexatious and hopeless litigation against the ACT Law Society and related parties.

1. The respondent's interim application was filed two days before the directions hearing. This gave the complainant minimal notice, and he was not able to respond to the application at the directions hearing. Also, on that occasion, the tribunal was advised of the nearly identical proceedings before the Supreme Court, and the respondent's interim application to strike-out that proceeding. I made directions for the complainant to better particularise his claim, including an order that the complainant:

file with the Tribunal and give to the respondent by 9 November 2020 a document setting out each act, fact, matter, circumstance or thing which, either individually or taken collectively, amounts to unlawful discrimination under the Discrimination Act 1991 and which was the subject of the complaint to the Human Rights Commission.

1. The interim application was then adjourned pending the Supreme Court's determination of the strike-out application.
2. On 9 November 2020 the complainant filed a document purporting to be a document filed in compliance with the directions on 26 October 2020. The complainant also sought to have the strike-out determined immediately.
3. The Supreme Court heard the strike-out application in SC 239 of 2020 on 26 November 2020 and has reserved its decision.
4. The interim application was relisted on 11 December 2020 and the respondent supported the complainant's request to have the interim application determined immediately, rather than adjourning to await the outcome of SC 239 of 2020. Accordingly, and in light of both parties wishing to proceed, I heard the parties on the interim application and reserved my decision.

The Discrimination Act

1. The Discrimination Act makes certain types of discrimination unlawful. To succeed in an action under the Discrimination Act, a complainant must establish that he or she has a protected attribute under section 7 of the Discrimination Act, has been subjected to an act of direct or indirect discrimination as per the definition in section 8 of the Act, and that the discriminatory act took place in an area of public life specified in Part 3 of the Act.
2. 'Race' is a protected attribute under section 7 of the Discrimination Act. The term is defined to include skin colour and ethnic origin. It is not in dispute that the complainant has this protected attribute.
3. 'Discrimination' is defined in section 8 of the Act to mean:

(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.

(2) For this section, a person directly discriminates 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 discriminates 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.

1. Although is it not entirely clear, it appears that the complainant is claiming that he has been directly discriminated against, in that he has been subject to unfavourable treatment because of his race.
2. In terms of the "areas of public life" in Part 3 of the Discrimination Act, the complainant's case appears to be that he was treated unfavourably in the provision of a service. It does not appear to be in dispute that the respondent is providing a service.
3. The complainant also claims to have been victimised by the respondent because of having previously made complaints. Section 68 of the Discrimination Act defines 'victimisation' as follows:

_(1) It is unlawful for a person (the first person) to subject, or threaten to subject, another person (the other person) to any detriment because - _

_(a) the other person, or someone associated with the other person - _

_(b) the first person believes the other person, or someone associated with the other person - _

discrimination action means any of the following:

(a) begin a proceeding in the ACAT or a court in relation to this Act;

(c) participate in or assist with, a criminal investigation in relation to an offence under the Criminal Code, section 750 (Serious vilification);

(d) give information or produce a document or other thing to a person exercising a function under the HRC Act in relation to a discrimination complaint;

(e) give information, produce a document or other thing or answer a question when required under the HRC Act in relation to a discrimination complaint;

(f) give evidence or produce a document or thing to the ACAT or a court in relation to this Act;

(g) reasonably assert any rights that the other person, or someone else, has under this Act;

(h) claim that a person has committed an act that is unlawful under this Act, or is an offence against the Criminal Code, section 750, other than a claim that is false and not made honestly;

(i) do anything else in accordance with this Act.

1. In any discrimination or victimisation action, the onus is on the complainant to prove their case on the balance of probabilities. However, section 53CA of the HRC Act provides for a limited reverse onus of proof in some circumstances as follows:

_(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 - _

(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.

Note The onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70).

1. Again, although not entirely clear on the face the complainant's documents, it appears that the complainant seeks to rely upon section 53CA in this proceeding, primarily relying on a combination of the comparison to other successful applicants, and evidence of a pattern of past conduct by the respondent.

1. Turning to the respondent's strike-out application, the respondent relies on section 32 of the ACAT Act which provides:

(1) This section applies if the tribunal considers that an application, or part of an application is--

(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 - _

Note If the application is for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005, the tribunal may also order the applicant to pay costs (see s 48 (2) (d)).

(3) The tribunal may make an order under subsection (2) on its own initiative or on application by a party.

_(4) The tribunal may vary or revoke a direction given under subsection (2)(c) - _

(b) on application by the person who is the subject of the order.

Note The tribunal must observe natural justice and procedural fairness (see s 7).

1. The respondent also seeks an order under section 32(2)(c) that no further human rights complaints to the HRC be referred to the tribunal without the leave of the tribunal.
2. An object of the ACAT Act is to ensure that access to the tribunal is simple and inexpensive.[5] While early dismissal of matters that cannot succeed can be the most efficient course, interlocutory steps can also add to cost and complexity and be a barrier to justice for self-represented litigants. This is particularly the case in discrimination actions. Accordingly, the Tribunal does not readily strike-out proceedings, particularly at such an early stage. As was observed by the then President of the Tribunal, General President Crebbin, in Gindy & Chief Minister & ACT Government & Ors[6] (Gindy):

A complaint cannot be dismissed unless it is clear that the complainant has no arguable case which should be allowed to be resolved at hearing. The onus is on the person applying for the dismissal to establish that that is the case.

1. In considering strike-out applications generally, the Tribunal has regularly adopted the approach of the Victorian Court of Appeal in The State Electricity Commission of Victoria v Andrew Rabel and the President & Members of the Equal Opportunity Board[7] (Rabel), summarised by the Victorian Civil and Administrative Tribunal in Jamieson Mary v The Australian Workers Union & Anor:[8]

(1) Section 109 permits an application to be made by the respondent at a preliminary stage; s75 permits an order to be made at any time including on the Tribunal's own initiative. The procedure to be adopted is in the Tribunal's discretion. The proceeding may be determined on the pleadings and submissions alone, or by allowing the parties to put forward further material, including affidavits and oral evidence.

(2) If in a proceeding a complainant indicates to the Tribunal that the whole of their case is contained in the material put before the Tribunal, the Tribunal is entitled to determine the matter by asking whether, on all the material before it, there is a question of real substance to go to a full hearing.

(3) However, if a complainant indicates that there is other evidence they can call to support their claim and the Tribunal does not permit that evidence to be called, the Tribunal cannot determine the matter on the basis that the complainant's material contains the whole of their case.

(4) A proceeding to dismiss or strike out a complaint is similar to an application to the Supreme Court in civil proceedings for summary dismissal. Both are designed to prevent abuses of process. However, it is a serious matter for the Tribunal, in an interlocutory proceeding which will generally not involve the hearing of oral evidence, to deprive a litigant of the chance to have their complaint heard in the ordinary course.

(5) In an application, the respondent bears the onus of showing that the complainant's case ought not be allowed to proceed. In a s75 hearing where the Tribunal proceeds on its own initiative the Tribunal must be satisfied on all the material before it that the complaint should not be allowed to proceed.

(6) For a dismissal or strike out to succeed, a respondent must show, or the Tribunal when proceeding on its own initiative must be satisfied, that the complainant's case is obviously hopeless and untenable or that it could on no reasonable view justify relief. The Tribunal's power to dismiss or strike out a complaint should however be exercised with caution and consistently with the objectives of the Act.

(7) In dealing with a dismissal or strike out matter a clear distinction must be drawn between the complaint or claim itself and the evidence which is to be given in support of it. A complaint cannot be dismissed or struck out as lacking in substance merely because it does not in itself contain the evidence supporting the claims.

(8) A complaint can be dismissed or struck out if it is obviously unsustainable in law or in fact. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where the respondent can show a defence sufficient to warrant the summary termination of the complaint.

(9) The Tribunal should not apply technical, artificial or mechanical rules in coming to a view about the case that a complainant wishes to advance.

Two additional comments should be made. First, if the material before the Tribunal shows that there is a dispute between the parties as to a fact in issue and the material does not assist the Tribunal to resolve the dispute, then it would be difficult for the Tribunal to be satisfied that the complaint is so lacking in substance that it should be dismissed or struck out.

Second, if the respondents have satisfied the Tribunal that the complaint or any part of it is frivolous, vexatious, misconceived or lacking in substance in respect of any element essential for the complainant to prove in order to substantiate the complaint at a full hearing, then the complaint or the relevant part of the complaint should be dismissed or struck out.

1. The respondent relies upon the arguments that the proceedings are vexatious, are an abuse of process, and that the complainant has previously been declared a vexatious litigant and has a history of 11 years of commencing "vexatious and hopeless" litigation against the respondent and related parties.

1. The complainant's complaint and the particulars of that complaint impart a strong sense of frustration and indeed distress on his part. I accept that he is genuinely aggrieved and believes that he has been discriminated against. Because of that belief, he has expended considerable personal effort seeking a legal remedy that has thus far eluded him.
2. Unfortunately however, in this claim (as, it would appear, in others) he has both failed to properly set out a legal basis for the claim, and to properly explain how the claim falls under the ambit of the Discrimination Act i.e. the form of discrimination under section 8 of the Discrimination Act, or the area of public life covered by Part 3 of the Act in which the unfavourable treatment occurred. While this is not unusual in discrimination matters, particularly where complainants are self-represented, I do not think it unreasonable to expect greater clarity from a legal practitioner, particularly where an opportunity has been provided to further particularise the claim.
3. Still, the general thrust of the complaint is discernible. The complainant was for many years a legal practitioner of apparently good standing. His documents attest to his significant achievements in his career and the community, and confirm he has no criminal record or health issues. The respondent has declined the complainant's applications for an unrestricted practising certificate. The respondent says this is because of the concerns about his professional competence. However, in the complainant's view, the respondent has engaged in the "continued detention" of his unrestricted practising certificate because of:

a new unwritten law and policy characterised with systemic discrimination, with distinction treatment, unfavourable treatment and victimization [sic] of Black lawyers and the Plaintiff.[9]

1. The discrimination has most recently manifested, he alleges, in the respondent's failure to decide the 2020 application within a reasonable period of time, or "...as at 1 July when the Law Society has given certificate to all other members, my own take longer to complete."[10]
2. As such, according to the complainant:

...the simple question is: did the law society treated me the plaintiff with distinction and unfavourably given their age long antecedents by issuing certificate to those found guilty of professional misconduct, criminal convictions, mental health and drug issues, and do so timely by 30 June 2020/ 1 July 2020 but refused me certificate on 1 July 2020 and provided no reason as at 3 July 2020 when the complaint was lodged?[11] [errors in original]

1. The circumstances from which the complainant says this conclusion can be drawn are:

that they give certificates to those found guilty of professional misconduct. They give certificates to those found guilty of criminal conduct. They give certificate to those who have a drug abuse issues. They give certificate to those who have deported from other country ... who have the bankruptcy issue.

[T]hey would consciously left my application unattended create a conduit in which they transfer me ...from one person to the other until ...I will lose all the employment.[12] [errors in original]

1. It was only after the first directions hearing, and the complainant's filing of his particulars, that the true scope of what was in issue could be discerned. This was clarified further at the December hearing.
2. The documents filed by the complainant contain a significant number of additional allegations, including an extensive reiteration of past events that have been the subject of previous proceedings. I accept that some of these events are necessary to give the present matter context. However, the respondent is concerned that the complainant is using these proceedings to reagitate matters that have already been the subject of proceedings. The complainant is well aware that he cannot do this, and he has been advised as much in previous proceedings, including by the Supreme Court.[13] Accordingly, I will assume the narrow characterisation of the claim, being a review of the consideration of the 2020 application only.
3. With that in mind, I turn to whether the application should be struck out as frivolous or vexatious, or an abuse of process.

1. A preliminary question that arises on the complainant's narrow characterisation of his claim, is whether he can be said to have been treated 'unfavourably' by the delay at all.
2. Unfavourable treatment is fundamental to a claim for direct discrimination.
3. The Discrimination Act does not include any definition of 'unfavourable' or 'unfavourable treatment'. However, a body of case law has developed which gives meaning to the term.[14] In Prezzi, Patricia Anne and Discrimination Commissioner[15] President Curtis said:

The ACT Discrimination Act... does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. All that is required is an examination of the treatment accorded the aggrieved person or the conditions upon which the aggrieved person is or is proposed to be dealt with. If the consequence for the aggrieved person of the treatment is unfavourable to that person, or if the conditions imposed or proposed would disadvantage that person there is discrimination where the treatment is given or the condition is imposed because of the relevant attribute possessed by the aggrieved person.

1. Unfavourable treatment then is treatment that is disadvantageous or detrimental to the complainant. In Cooley and the Australian National University,[16] a claim brought in the then ACT Discrimination Tribunal, Deputy President Peedom said:

A detriment involves some loss, or damage or injury (see Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 and Sivananthan v Commissioner of Police [2001] NSW ADT 44 at 41) and is broad enough to cover any disadvantage, as long as it is real and not illusory. Whether a detriment has been suffered is to be determined objectively and not by the subjective perceptions of either the complainant or the respondent. (see Ellis v Mount Scorpus Memorial College [1996] VADT 16 (29 March 1996)).

1. The complainant has not pointed to any loss or injury or even disadvantage that he suffered by reason of the Law Society not finalising its decision by 30 June 2020. At best, perhaps, he may claim for embarrassment or distress, occasioned by the frustration at the perceived delay. However, to the extent that there is more substantial detriment, that detriment results from the substantive decision, made after the commencement of these proceedings, to deny him the unrestricted practising certificate. As such, one may question the motivation for this proceeding, given it does not appear to deal with any detriment resulting from the decision to deny him a practising certificate.
2. It bears noting that the complainant cannot challenge the substantive decision in the context of these proceedings. The tribunal is a creature of statute and may only hear matters that fall within its jurisdiction as prescribed by "authorising laws"[17] that give it such power. The 'authorising law' in this case was section 53A of the HRC Act, which provides:

(i) a complainant is given a discrimination referral statement under section 45(2)(d); or

(ii) a statement under section 82 (1) is included in a final report in relation to a complaint; and

(b) within 60 days after the statement is given, the complainant requires the commission to refer the complaint to the ACAT.

(b) tell the complainant and the person complained about in writing about the referral.

Note The commissioner must also close the complaint (see s 78(2)(d)).

1. As at 3 July 2020, when the complainant made the complaint, the Law Society had not decided his application. That decision was not, and cannot be, the subject of the complaint, and hence was not part of the referral to the tribunal. Accordingly, even if the Tribunal could, in the context of discrimination proceedings more broadly, review of the process or decision of the Law Society to refuse to grant an unrestricted practising certificate, it cannot review it in the context of this matter, or in this Tribunal.
2. The complainant does, however, appear to have a right to review the substantive decision in the ACT Supreme Court pursuant to section 81(1)(a) of the LP Act. The complainant has not pursued this avenue, either in relation to the 2020 decision or previously. He has not explained why. Instead, he has sought to attack, through this proceeding, the delay in the process that led to the making of the substantive decision.
3. The respondent submits that the complainant's choice of the tribunal as a forum is an attempt to engage in an impermissible "collateral attack" on the substantive decision. It argues that the existence of a prescribed right of review, such as that found in section 81(1)(a) of the LP Act, prohibits such a course of action, including under the Discrimination Act.
4. In support of this argument, the respondent relies upon the decision Coffey v Secretary, Department of Social Secretary[18] (Coffey). In Coffey the applicant sought review of a decision by the respondent to deny him certain social security benefits. The decision was reviewed and confirmed in three separate reviews of his social security entitlements under a comprehensive process set out in Chapter 6 of the Social Security Act 1991 (Cth). Mr Coffey then commenced common law proceedings for the recovery of a debt. The Full Court of the Federal Court of Australia held that it was an abuse of process for the applicant to commence such an application. Their Honours held that to allow Mr Coffey to relitigate what had already been determined would be to permit curial process to be employed in a manner unfair to a defendant, who had already defeated the same claim in the earlier review proceedings. In relation to the argument of 'collateral attack', their Honours observed:

The debt claim may be looked at in another way. The review provisions in Part 6 are elaborate and specific. They have led us to conclude that Parliament did not intend that reviewable decisions under the Act should be amenable to collateral attack. By collateral attack we mean a challenge the primary object of which is not to set a decision aside, but to determine other issues in the course of which the validity of the decision arises. Thus in the present case the appellant's debt claim is primarily to recover the amount of the deduction, but in order to do that he must show that the decision to make the deduction is defective.[19]

1. Coffey was noted by Refshauge J in Ezekiel-Hart v Law Society of the ACT & Ors[20] as authority for the proposition that a right of review under section 81 of the LP Act may preclude an entitlement to relief in another forum,[21] although his Honour did not determine the issue conclusively in the context of the complainant's application.
2. Coffey is a matter where the key issue, the existence of the debt under statute, was substantially the same across proceedings. The applicant in Coffey was trying to reach exactly the same destination - the payment of the entitlement - through an alternative route.
3. I am not convinced that the same concept of a 'collateral attack' necessarily applies to an action under the Discrimination Act, either for unlawful discrimination or, more particularly, for an action for victimisation. The Discrimination Act is a beneficial and protective Act and provides a right of review that is clearly in addition to other avenues of redress.[22] If it is the process that is at fault due to some form of discrimination, then the question before the Tribunal is not the correctness of the decision, but rather the causative influence of the discriminatory conduct on that decision. I am not convinced the right to bring a claim under the Discrimination Act should be excluded solely by the availability of an alternative merit review of the substantive application in another jurisdiction. Nor would a remedy, such as damages, necessarily require the complainant to establish that the alternative decision was incorrect.
4. Accordingly, I am not satisfied that this matter is an abuse of process by reason solely of being a 'collateral attack'.
5. That said, however, the lack of substantive remedy in this jurisdiction is a relevant matter when considering whether this application should be struck out on another ground.

Is this proceeding otherwise an abuse of process?

1. The respondent's next contention is that it is an abuse of process to attempt to relitigate matters that have been decided, or to bring proceedings in two jurisdictions at once.
2. In Union Steamship Co of New Zealand Ltd v The Caradale,[23] Dixon J observed that:

[T]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration.

1. Hence, in the respondent's submission, were the application before the Tribunal to be, in substance, identical to that in the Supreme Court, neither matter could proceed.
2. The complainant does not contest this proposition as such, but says that the matters are not the same, pointing out that the Tribunal proceedings involve the delay in reaching a decision, and a claim for discrimination arises from that, which is distinct from what is being argued (albeit on common factual evidence and allegations) in the Supreme Court.
3. Unfortunately for the complainant, the similarities in the complainant's submissions in both proceedings have made this argument inevitable. It was only after further submissions, and the complainant's oral submissions, that I was satisfied that there may be some difference in the proceedings. I will proceed to decide this application on the basis that, notwithstanding the identical language in parts of the applications, there is in substance a subtle but substantial difference between these proceedings and those in the Supreme Court. Whether that is the case is a matter better determined by the Supreme Court.
4. Rather, what I will consider is whether there is a substantial difference between this matter, and previous matters, in this tribunal or elsewhere.
5. Further to my comments above, to the extent that this application is simply about the delay in reaching a conclusion about the merits of the application, then it arguably contains a new matter that has not been the subject of previous litigation. For this reason, the complainant can argue that the proceedings are not barred by issue estoppel or an abuse of process, because the matter, the subject of the complaint, did not come into existence until after the conclusion of the previous proceedings between the parties. However, that is not the end of the matter.
6. There are three ways in which the previous proceedings can be regarded as preventing these proceedings properly being prosecuted and making them liable to be struck out as an abuse of process - in addition to res judicata and issue estoppel, an application may be dismissed if the processes of the court or tribunal are being used to inflict injustice or unfairness. Examples are where the proceedings are unjustifiably vexatious or oppressive because they seek to litigate proceedings anew,[24] or where the proceedings would bring the administration of justice into disrepute.[25] Hence, an attempt to litigate in the court a dispute or issue which has been resolved in earlier litigation in another court or tribunal may constitute an abuse of process even though the earlier proceeding did not give rise to a res judicata, or issue estoppel.[26]
7. I am satisfied that this is one such case.
8. The complainant's submissions reference an extensive history of alleged unreasonable or discriminatory conduct by the Law Society and its officers in relation to previous applications for an unrestricted practising certificate. Those allegations have been canvassed in numerous previous proceedings, including in this Tribunal,[27] and have been dismissed in every one of them.
9. This leads to a fundamental failing in the complainant's case. The complaint, taken at its highest, is that the respondent treated him unfavourably, on or before June 2020, in refusing or failing to decide his application for an unrestricted practising certificate by the end of the financial year. The complainant has no direct evidence of this, but rather requests that the Tribunal draw an inference of racial discrimination based on the surrounding circumstances - vis-a-vis, the granting of unrestricted practising certificates to other applicants, who have a variety of ostensibly concerning or disqualifying characteristics. He asks that consideration be undertaken having regard to the past history between himself and the Law Society - that is, to the events that have been subject to previous litigation, which has been dismissed.
10. The absence of direct evidence is not unusual in a discrimination case. Evidence of direct discrimination based on race is rare, and the Tribunal can, and often must, draw inferences from the factual material. However, those inferences must be drawn from objectively provable facts, based on probative evidence. The factual allegations relied upon by the complainant have been dismissed in several previous cases. Clearly, the complainant does not agree with the outcome of those earlier proceedings,[28] but it is not open to him to continue to relitigate the proceedings in the hope of a different result. Such an attempt, no matter the intention or motivations, is an abuse of process.
11. I note, for completeness, that this may well be the case even if the allegations had not been previously dismissed.
12. A pattern of repetitious litigation, across jurisdictions, may itself be an abuse of process. In UBS AG v Tyne[29] (Tyne) the High Court considered when successive litigation may amount to an abuse of process. In Tyne the litigation between the applicant and the respondent had spanned eight years and three courts in two countries. During the course of the proceedings, Mr Tyne discontinued his claim as plaintiff in one proceeding and commenced substantially the same claim in a different jurisdiction. The question was whether this amounted to an abuse of process.
13. The case was primarily determined by reference to the waste of resources and undermining of case management principles caused by this kind of tactical litigation, but the plurality (Keifel CJ, Bell and Keane JJ,[30] Gageler J agreeing) considered it appropriate to give regard also to the delay, expense and vexation which is likely to give rise to the conduct that creates the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public monies. The same principle applies here. The complainant should not be permitted to misuse tribunal resources by commencing or continuing substantively similar litigation across jurisdictions, particularly in circumstances where there is a more appropriate process available to determine the substantive issue - that is, whether the correct and proper decision is to grant him an unrestricted practising certificate.
14. I am therefore satisfied that this proceeding, when viewed in the context of the previous litigation, potentially amounts to an abuse of process, notwithstanding that I can see a kernel of a case about the alleged influence of discrimination in the delay in reaching a decision (noting no evidence has been tested, nor even properly presented).
15. However, there is a further matter that I think appropriate to consider in reaching a final decision - that of proportionality.
16. Even if the complainant was successful in his claim, the scope for the Tribunal to make remedial or compensatory orders in this matter is limited. As set out above, the Tribunal cannot make an order about the granting of the unrestricted practising certificate. It cannot determine any procedural flaws in the process, beyond the possible motivation for the delay. It cannot decide the preferable decision. It cannot even order that the decision be made more swiftly, as the matter has since been decided (albeit after the complainant made the complaint), and any such order would be otiose. There is no evidence, or even claim, of any significant loss, and the complainant was in any case ultimately denied the unrestricted practising certificate. There is no evidence or assertion of any loss at all. Even if successful, it is unlikely to result in any remedy beyond nominal damages for a minimal delay in a decision that was ultimately not in the complainant's favour.
17. As such, this application raises the question of whether the cost and inconvenience of running a hearing is disproportionate to any compensation or vindication that the complainant could gain from the process.
18. There are conflicting authorities as to whether proportionality can be a basis for striking-out a claim for an abuse of process. Recently, in Bleyer v Google Inc[31] (Bleyer) the NSW Supreme Court opined that it was appropriate to stay or dismiss an action on the ground that the resources of the court and the parties that would have to be expended to determine the claim were out of all proportion to the interest at stake, based the ground that disproportionality could properly be regarded as a species of abuse of process. However, that decision may arguably be confined to NSW, where section 60 of the Civil Procedure Act 2005 (NSW) makes reference to proportionality. It was expressly not followed in Queensland in Smith v Lucht,[32] where there is no equivalent of section 60.
19. Section 8(2) of the ACT Civil and Administrative Tribunal Procedural Rules 2020 provides that:

The tribunal must implement its practices and procedures to facilitate the resolution of issues between the parties to a proceeding in a way that the cost to the parties and the tribunal is proportionate to the importance and complexity of the proceeding.

However, this appears to be focused more to the conduct of the proceeding, than whether a matter should proceed at all. Therefore, Bleyer may not strictly be applicable here, where the tribunal's objects also make no reference to proportionality. The Tribunal should, in any case, be especially reluctant to strike out a discrimination proceeding because of raw calculations of cost and benefit, as the Discrimination Act is ultimately remedial in nature, rather than simply concerned with the apportionment of loss.

1. Still, the complainant's inability to obtain any substantive remedy in this proceeding cannot be overlooked, particularly in the context of the plethora of previous proceedings, and the availability of a means of reviewing the substantive decision. This matter, viewed in that context, and in the context of so much previous litigation, takes on the clear character of a proceeding that serves little purpose beyond vexing the respondent. Such a proceeding is an abuse of process.
2. There is a further matter of concern. Many of the complainant's allegations, so far as I can identify them, are allegations of malicious conduct by certain individuals within the Law Society. The allegations are made without proper particularisation, and in occasionally extraordinary terms. The complainant was warned of the futility of making such scurrilous allegations without evidence by Refshauge J in Ezekiel-Hart v The Law Society of The Australian Capital Territory & Ors.[33] It appears he has not accepted this advice. The Tribunal should not be used as a forum to continue to vent such allegations, without proper particularisation or evidence. To continue to raise such allegations is an abuse of process.
3. For the above reasons, I am satisfied that the complaint should be struck out as an abuse of process.

1. The respondent seeks an order that the Tribunal give a direction under section 32(2)(c)(ii) of the ACAT Act that the complainant be treated as a vexatious litigant, and that further complaints to the HRC not be referred to the Tribunal without the leave of the Tribunal.
2. The application is based on the assertion that the complainant continues to make baseless applications that are doomed to fail - that he is, in effect, a vexatious litigant.
3. In Attorney-General v Wentworth,[34] Roden J defined 'vexatious proceedings' as follows:

1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.[35]

1. Member Chenoweth in the matter of Council of the Law Society in the ACT v The Legal Practitioner [2011] ACAT 49 said:

The use of the term "frivolous and vexatious" has a pejorative note to it. It has the implication that an application has been made for no good reason at all, or for a purpose designed to harass or annoy. The term is also used to describe a cause of action which has no reasonable prospects of success.[36]

1. As set out above, a review of the previous litigation between the parties does suggest that the complainant has a history of pursuing similar allegations across jurisdictions.
2. There is a practical problem with making such a declaration in this case. A complainant in a discrimination matter does not lodge an application directly with the ACAT. Rather, the complainant makes a complaint to the HRC, and the HRC refers matters to the tribunal pursuant to section 53BA of the HRC Act. This provision provides that:

Referral of commission-initiated discrimination matters

(1) This section applies if a commission-initiated report is prepared under section 84 for a commission-initiated discrimination matter.

(2) The commission may refer a commission-initiated discrimination matter to the ACAT within 60 days after the report has been prepared.

(3) If the commission refers a commission-initiated discrimination matter to the ACAT, the commission must give written notice of the referral to the person complained about.

1. Clearly, the HRC's power to refer the matter is discretionary, and based on the election of a complainant. However, it is difficult to see how the Tribunal could make a declaration that would prevent such referrals from being lawfully made by the HRC. Before making such a declaration, at the very least it would be appropriate to hear from the Human Rights Commissioner as to the ramifications for the HRC. Given the interlocutory nature of these proceedings, this has not been done.
2. In any case, I am not convinced it is appropriate to make an order of this nature. While I am satisfied that the present application is an abuse of process, and that it bears some of the characteristics of a vexatious application, I am not satisfied that warrants restraining the complainant from making any further applications against the respondent under the HRC Act or the Discrimination Act or otherwise. To do so would be deprive the complainant of his right to make a legitimate complaint under protective legislation. That is a disproportionate action. Any further actions brought by the complainant, however, must be properly particularised, and reveal an appropriate cause of action, if they are to avoid being struck out again. Pursuant to section 32 of the ACAT Act, the Tribunal may do this on its own initiative.

1. In Robert John King v The Honourable Terence John Higgins[37] Refshauge J of the ACT Supreme Court said:

The courts should be accessible to all, even though the formulation of their [a party's] claims may be unorthodox and difficult to manage and the claims themselves may be challenging to accepted norms. Against this, the courts must not permit their processes to be abused and for potential defendants be put to trouble and expense for claims that have no possible prospects of success.

1. I well appreciate that the complainant is frustrated and distressed, by the circumstances in which he finds himself. That he is seeking a legal remedy is understandable. However, this proceeding, in these circumstances, reliant upon historical allegations that which have been dismissed, and in relation to alleged delay rather than a substantive decision by the respondent, are incapable of providing the resolution he ultimately seeks, and are not an appropriate means of redress. Moreover, the application seeks to reagitate matters that have been the subject of previous proceedings, and includes unparticularised allegations of misconduct by others. To permit such a proceeding to continue would be to permit an abuse of process.
2. Accordingly, the application is wholly dismissed under subsection 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008.

[1] Pursuant to sections 53C and 53E of the HRC Act

[2] International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976)

[3] [2014] FCCA 658

[4] ACAT DT 7/2016, dismissed by SM Beacroft in [2017] ACAT 3; upheld on appeal in [2018] ACAT 76; leave to appeal out of time refused by the ACT Supreme Court in [2019] ACTSC 193, ACTSC 443 of 2017, dismissed by Crowe AJ [2019] ACTSC 192; appeal dismissed by the ACT Court of Appeal in [2020] ACTCA 32; and leave to appeal refused by the High Court in C2/2020

[6] [2011] ACAT 67 at [23]

[7] [1996] VSC 78

[8] [1999] VCAT 628; See also Shammas v Canberra Institute of Technology [2014] ACAT 2 at [68]; Mewett v University of Canberra [2018] ACAT 61 at [33]; Cheluvappa v University of Canberra [2018] ACAT 108 at [39]; Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84

[9] Discrimination complaint referral dated 2 October 2020, page 1 of attachment to complaint form

[10] Transcript of proceedings 26 October 2020 page 14, lines 24-26

[11] Complainant's submission dated 9 November 2020 at [40]

[12] Transcript of proceedings 26 October 2020 pages 3-4

[13] See the discussion in [2014] FCCA 658; [2012] ACTSC 103 per Refshauge J; [2013] FCA 257 per Foster J

[14] See Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84 at [33]

[15] [1996] ACTAAT 132, Affirmed in Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379; Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84

[16] [2007] ACTDT 2 at [44]

[17] ACT Civil and Administrative Tribunal Act 2008 sections 9, 11

[18] [1999] FCA 375 particularly at [26]

[20] [2010] ACTSC 103 at [58]

[21] See Ezekiel-Hart v Law Society of the ACT & Ors [2010] ACTSC at [58]

[23] [1937] HCA 1; (1937) 56 CLR 277 at page 281

[24] See [2012] ACTSC 103 at [86] (29 June 2012)

[25] Ramsay at [25]; Coffey v Secretary, Department of Social Security [1999] FCA 375 at [25]; Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [25]

[26] See Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [25];Coffey v Secretary, Department of Social Security [1999] FCA 375 at [25]; Sea Culture International v Scoles [1991] FCA 523; (1991) 32 FCR 275 at page 279; Walton v Gardiner [1993] HCA 77 at [23]- [24]

[27] Ezekiel-Hart v Reis & Anor [2017] ACAT 3

[28] A problematic approach of itself for a legal practitioner, as previously identified by Yates J in Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] FCA 725 at [38]

[29] [2018] HCA 45

[30] UBS AG v Tyne [2018] HCA 45 at [59] (Keifel CJ, Bell and Keane JJ)

[31] [2014] NSWSC 897 at [62]

[32] [2014] QDC 302

[33] [2012] ACTSC 103 at [133]- [134]

[34] (1988) 14 NSWLR 481

[35] (1988) 14 NSWLR 481 at page 491

[37] Robert John King v The Honourable Terence John Higgins AO and Others [2009] ACTSC 153 at [77]