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Legislation Cited: Australian Capital Territory (Self-Government) Act 1988 (Cth) s 24 Civil Law (Wrongs) Act 2002 (ACT) s 139A Human Rights Act 2004 (ACT) ss 40B, 40C Legal Profession Act 2006 (ACT) ss 253, 322, 373, 383, 394, 412, 466, 468, 576, 587A Legislation Act 2001 (ACT) Dictionary Limitation Act 1985 (ACT) s 21B Parliamentary Privileges Act 1987 (Cth) s 16 Supreme Court Act 1933 (ACT) s 37E(4)

Cases Cited: Blair v Curran (1939) 62 CLR 464 Byrne v Council of the Law Society of the ACT (Occupational Discipline) [2015] ACAT 19 Cornwall v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2 Ezekiel-Hart v Reis (No 2) [2019] ACTSC 192 The Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 Wood v State of New South Wales [2019] NSWCA 313

th Texts Cited: Macquarie Dictionary (Pan Macmillan, 6 ed, 2013)

Parties: Emmanuel Ezekiel-Hart (Appellant) Australian Capital Territory (Respondent)

Representation: Counsel Self-represented (Appellant) B Buckland (Respondent)

Solicitors Self-represented (Appellant) ACT Government Solicitor (Respondent)

File Number: ACTCA 41 of 2019

Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Crowe AJ Date of Decision: 25 July 2019 Case Title: Ezekiel-Hart v Reis (No 2) Citation: [2019] ACTSC 192

THE COURT:

1. The appellant, Emmanuel Tam Ezekiel-Hart, is admitted as a legal practitioner in the Australian Capital Territory, although he has not held a practising certificate or practised as a lawyer for some years. In the present proceedings, the appellant appeals from orders made by Crowe AJ on 25 July 2019 entering judgment for the respondent against the appellant in a civil claim. The respondent is the Australian Capital Territory. It is apparent that the appellant’s complaints concern the failure of various Ministers in the ACT Government to act to protect him from alleged discrimination and harm, and an allegation that the respondent is legally responsible for damages said to have been sustained by him by reason of him being defamed by the ACT Law Society (the Law Society) and one of its employees. No issue was taken in the proceeding below or in the present appeal regarding the correct identity of the respondent. In order to properly understand the present appeal, it is necessary to set out the procedural history of the appellant’s claims.

History of the appellant’s claims

2. By an Amended Originating Claim dated 22 November 2018, the appellant sought substantial damages, and declaratory and other relief against:

(a) Robert Anthony Reis (the first defendant);

(b) the Council of the Law Society of the ACT (the Council of the Law Society) (the second defendant); and

(c) the Australian Capital Territory (the third defendant).

3. The Amended Originating Claim ran to 142 paragraphs, much of which was irrelevant, discursive and argumentative. The appellant’s claims, briefly summarised, were:

(a) the first defendant (the then Professional Standards Manager of the Law Society) published a memorandum dated 17 March 2016 to the Council of the Law Society on or about 21 March 2016 and thereby defamed him; (b) the second defendant was vicariously liable for the first defendant’s defamation;

(c) the first and second defendants acting in concert engaged in misleading and deceptive conduct contrary to the Australian Consumer Law;

(d) the second defendant was an “instrumentality” of the third defendant and it owed the appellant a duty of care to control the first and second defendants, which it breached, and were it not for that breach he would not have been defamed; and

(e) the first, second and third defendants breached the appellant’s human rights under the Human Rights Act 2004 (ACT) (the HRA).

4. The defence filed by the Law Society and Mr Reis raised a number of defences to the appellant’s claims in defamation, including substantial truth, absolute privilege and qualified privilege. We need say nothing more about their defence at this time. The defence filed by the respondent did not raise any defences of the nature pleaded by Mr Reis and the Law Society. The respondent’s defence for the purposes of addressing that part of his claim against it based on the alleged defamation, was to the effect that the respondent was not either directly or vicariously liable for any defamatory publication by Mr Reis or the Law Society and a denial that any damage caused to the appellant by any such defamatory publication was caused by or arose from any negligence or breach of duty of care or breach of statutory duty by it. The respondent denied that the Law Society was its “instrumentality” or that the respondent had control over it. The respondent further denied that it had breached the appellant’s rights under the HRA. Finally, the respondent pleaded that the appellant’s claims arising out of the alleged defamation were barred by the time limitations in s 21B of the Limitation Act 1985 (ACT) (the Limitation Act).

5. In the proceeding before Crowe AJ, the first and second defendants admitted that the appellant was admitted as a barrister and solicitor of the Supreme Court of the ACT in 2003 and that he held a practising certificate until 30 June 2013. They admitted that on 23 February 2016 he applied for an unrestricted practising certificate as an in-house lawyer and that his application was denied by the second defendant. The first defendant admitted he caused a confidential professional standards memorandum to be circulated to the second defendant on or about 17 March 2016. This memorandum contained the material which the appellant claimed was defamatory. A draft application for disciplinary action against the appellant was attached to the memorandum, containing numerous allegations of professional misconduct against the appellant, and seeking an order recommending his name be removed from the roll of local practitioners. It was further admitted that the memorandum and attachments were considered by the second defendant in confidential discussions at the second defendant’s meeting on 21 March 2016. Both the first and second defendants pleaded that the memorandum was circulated on an occasion of absolute privilege, or alternatively qualified privilege, and that the defences of substantial truth and/or honest opinion apply. They also pleaded reliance on immunities under ss 468 and 587A of the Legal Profession Act 2006 (ACT) (the LPA). Finally, they pleaded reliance on the time bar pursuant to s 21B(1) of the Limitation Act.

6. The history of interlocutory applications in those claims by the appellant is set out in the judgment of Crowe AJ: [2019] ACTSC 192. It is unnecessary to repeat that history here. It is sufficient to note that the proceeding came before Crowe AJ on 8 July 2019 on two bases:

(a) to hear and determine an application for summary judgment by the first and second defendants; and

(b) a hearing on the merits of the claim against the third defendant.

7. None of the parties objected to the rather unusual course of combining an application for summary judgment against two defendants with a merits hearing of the claim against the third defendant. No issue regarding that procedure has been raised in the present appeal.

8. The memorandum of 17 March 2016 was prepared for the purpose of the Council of the Law Society considering an application by the appellant for the issue of a practising certificate. Annexed to the memorandum was a draft complaint prepared in 2015 in contemplation of disciplinary proceedings against the appellant. Those proceedings were never commenced because the second defendant was unaware of the appellant’s whereabouts at that time. Crowe AJ was satisfied that the draft complaint attached to the memorandum contained material defamatory to the appellant. The evidence established that the draft complaint was likely drafted by Mr N Beaumont SC, but it was published in the relevant sense by the first defendant on or about 17 March 2016. The evidence established that the first defendant published the material in the course of his duties, such that the second defendant would be vicariously liable for the defamation.

9. Crowe AJ first considered an application by the appellant under s 21B of the Limitation Act to extend the limitation period for him to commence his action in defamation. The appellant did not commence his proceedings until 6 November 2017, outside the period of one year from the date of publication prescribed by s 21B of the Limitation Act. The appellant became aware of the memorandum and attached complaint on 22 November 2016 but took no steps to commence proceedings within the limitation period. After hearing evidence, his Honour refused the application. This ruling, by itself, would have proved fatal to the appellant’s claim in defamation against the first and second defendants, as the claim was commenced well outside the period of 12 months after the date of the publication of the material complained of as prescribed by s 21B(1) of the Limitation Act. His Honour went on, however, to consider the defences raised by the first and second defendants.

10. Crowe AJ was inclined to the view that the publication of the memorandum and draft complaint to the second defendant did not occur in circumstances attracting absolute privilege, but found it unnecessary to express a final view on the point, as his Honour was satisfied the defence of qualified privilege was made out both under s 139A of the Civil Law (Wrongs) Act 2002 (ACT) and at common law. To the limited extent that Crowe AJ found that the memorandum and draft complaint contained defamatory imputations, his Honour found that the defence of substantial truth was also made out. His Honour was satisfied that there was no evidence of malice on the part of the first and second defendants, and no proper basis upon which it could be inferred.

11. With regard to the statutory immunities pleaded by the first and second defendants, Crowe AJ found that the defendants were not entitled to immunity under s 468 of the LPA but they were entitled to immunity under s 587A. The result was that neither the first nor second defendants could be held civilly liable for any defamation of the appellant in the draft complaint.

12. With regard to the appellant’s claims against the first and second defendants based on the HRA, Crowe AJ found that those claims were doomed to fail. It is not clear what became of the appellant’s claim that the first and second defendants engaged in misleading or deceptive conduct, but that claim does not appear to have been separately pursued in the proceeding below, and it has not be agitated in the present appeal.

13. Crowe AJ entered summary judgment against the appellant in favour of the first and second defendants.

14. Turning to the appellant’s claims against the third defendant, the appellant relied principally on s 466 of the LPA to establish that the third defendant had the power to control the activities of the second defendant, which the appellant relied upon as part of the material establishing that the third defendant owed him a duty of care to supervise and control the second defendant. He also relied on other provisions to which we will refer later in this judgment. Crowe AJ stated that the appellant’s reliance on s 466 was “entirely misconceived” and that s 466 “does no more than oblige the second defendant to provide information about disciplinary complaints and complaint handling at times and in relation to periods required by the Attorney-General”. The appellant also relied upon ss 253(a), 322, 373(2), 576(5) and 583(2) of the LPA as indicia of the third defendant’s power to control the second defendant. However, his Honour found that those sections “merely set out very specific areas where the second defendant is required to obtain the consent of the Attorney-General for a specific action” and did not “erode the independence of the second defendant”. We refer to these provisions in greater detail below.

15. Crowe AJ concluded that there was “simply no warrant for concluding that the second defendant was an “instrumentality” of the third defendant, or that the third defendant had any control of that party in the exercise of its statutory functions under ch 2 of the LPA”.

16. We should add at this point that part of the material relied upon by the appellant, in the proceedings before Crowe AJ, as establishing that the third defendant owed him a relevant duty of care was material forwarded by the appellant to the ACT Legislative Assembly on 14 May 2014, requesting the Legislative Assembly to conduct an inquiry into his complaints about the second defendant, and a complaint by a third party regarding a legal practitioner. The appellant attempted to rely on that material in an affidavit before Crowe AJ, presumably for the purpose of demonstrating that the third defendant was “on notice” that the second defendant was discriminating against him and generally abusing its statutory powers. This material, of course, pre-dated the creation and publication of the alleged defamatory material, but the appellant’s claim was based on the proposition that if the ACT government (presumably at the direction of the Assembly), had set up an inquiry in 2014 or if the Attorney-General had requested a report from the Law Society under s 466 of the LPA, the first and second defendants would not have defamed him in March 2016. In the proceeding before Crowe AJ, the third defendant raised the application of s 16 of the Parliamentary Privileges Act 1987 (Cth) (the PPA), which applies in the ACT by virtue of s 24 of the Australian Capital Territory (Self-Government) Act 1988 (Cth), to the material the appellant sought to rely upon. After conducting a voir dire, his Honour ruled the material to be inadmissible.

17. Finally, with regard to the appellant’s claim against the third defendant based on the HRA, Crowe AJ refused an application under s 40C(3) of the HRA to extend time for the appellant to commence a proceeding against a “public authority”. His Honour nevertheless observed that the appellant’s claim depended on the appellant establishing that the Attorney-General had control over the way in which the second defendant carried out its functions. The appellant failed to establish this.

18. The result of the hearing before Crowe AJ was that summary judgment was entered for the first and second defendants against the appellant, and judgment was entered for the third defendant against the appellant. This result is important, because it dictated the procedures which the appellant was required to adopt in appealing from the orders of Crowe AJ.

19. As the entry of summary judgment for the first and second defendants was an interlocutory order, the appellant required leave to appeal to this Court from that decision: s 37E(4) Supreme Court Act 1933 (ACT) (Supreme Court Act). On 14 November 2019, Mossop J refused the appellant leave to appeal from the orders of Crowe AJ regarding his claim against the first and second defendants.

20. The appellant had a right of appeal from the judgment of Crowe AJ regarding his claim against the third defendant. He has exercised that right, culminating in the hearing of his appeal before this Court on 4 May 2020. It is important to recognise, however, that his appeal is strictly limited to the judgment of Crowe AJ regarding the appellant’s claim against the third defendant. In the course of oral argument, the appellant told the Court that he had applied to the High Court for special leave to appeal from the decision of Mossop J, but he made no request that the present appeal be adjourned to await the outcome of the special leave application. The lodging of an application for special leave does not act as a stay on the orders from which the appellant proposes to appeal with the consequence that the orders of Crowe AJ regarding the appellant’s claim against the first and second defendants remain in force.

The present appeal

21. This appeal is governed by s 37E of the Supreme Court Act. It is an appeal by way of rehearing, albeit that error must be demonstrated: The Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142. In Cornwall v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2, this Court said, at [24]:

In such an appeal, the appellate court is obliged to give the judgment which in its opinion ought to have been given in the first instance, but in doing so it must recognise the limitations that exist where an appellate court proceeds wholly or substantially on the record: Fox v Percy [2003] HCA 22; 214 CLR 118. Where the facts have been determined by the trial judge, the appellate court will generally be in as good a position as the trial judge to decide on the proper inferences to be drawn from the facts: Warren v Coombes (1979) 142 CLR 531 at 551.

22. An appellant seeking to have an appeal court overturn facts determined in the court below based on the credibility of witnesses as determined by the trial judge faces particular difficulties. In Wood v State of New South Wales [2019] NSWCA 313, the New South Wales Court of Appeal (Gleeson JA and Payne JA, Simpson AJA) said, at [46]:

It is well established that findings of fact based on credit… will not be disturbed on appeal unless they are shown to be wrong by “incontrovertible facts or uncontested testimony” or are “glaringly improbable” or “contrary to compelling inferences”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 at [43].

23. In the present case, Crowe AJ did not make any findings of fact based on the credit of witnesses. As Crowe AJ observed, the evidence was presented largely by way of affidavit. Most of the findings of fact by Crowe AJ related to the appellant’s claim in defamation against the first and second defendants. In written submissions on the present appeal, counsel for the respondent (the third defendant in the proceedings below) said:

The Respondent submits that Mossop J’s refusal of leave to appeal makes the present proceedings futile in certain material respects as: (a) neither Mr Reis nor the Law Society can be held liable for any of the causes of action articulated; and (b) the Respondent’s liability depends upon an action being made out against Mr Reis or the Law Society and the fact that no such cause of action can be established means that the proceedings against the Respondent cannot succeed.

24. To the extent that this submission asserts that the majority of the appellant’s claims against the respondent depend upon him establishing that Mr Reis or the Law Society are liable to him in defamation or for breaches of the HRA, we agree. If the submission is intended to suggest that in this appeal the appellant is precluded by reason of the order made in his claims against Mr Reis and the Law Society from challenging findings of facts made by Crowe AJ with regard to his claim that the Law Society and Mr Reis had defamed him, we doubt whether it is correct. In conducting his case against the respondent in the proceeding before Crowe AJ, the appellant was required to prove that Mr Reis and/or the Law Society had defamed him and that they, or one of them, had breached his rights under the HRA. This requirement was separate to the requirement to prove those matters in his claim against Mr Reis and the Law Society. The evidence led in the proceeding before Crowe AJ was evidence both with regard to the appellant’s claims against Mr Reis and the Law Society, and with regard to his claim against the respondent. We can see no issue estoppel in this appeal arising from the orders of Mossop J. In Blair v Curran (1939) 62 CLR 464, Dixon J said that “[a] judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies”. As the respondent is not the same party or a privy of Mr Reis or the Law Society, the order of Mossop J cannot operate as a res judicata precluding the appellant from challenging the findings of fact made by Crowe AJ with regard to the appellant’s case against the respondent. For the reasons that follow, while we consider this to be the correct position at law, it makes no difference to the outcome of the present appeal.

25. The appellant’s Amended Notice of Appeal pleads 35 grounds of appeal. There would be little profit in considering each ground separately. Some are pleaded so broadly as to be virtually meaningless; for example, ground 4 alleges “[t]he decision was ‘glaringly improbable’”. Many of the grounds are discursive and argumentative. Many of the grounds do not refer to the respondent at all, but complain of findings made by Crowe AJ concerning the appellant’s claims against the Law Society and Mr Reis. Accepting that the appellant is not precluded from challenging those findings in the present appeal, he must nevertheless establish, with regard to that part of his claim which rested on the assertion that he was defamed by the Law Society or Mr Reis, that the respondent was legally responsible for the conduct of the Law Society and Mr Reis. We will approach the appeal by considering the claims pursued by the appellant before Crowe AJ and determining whether any error on the part of Crowe AJ has been made out. As we understand the claim pursued by the appellant against the respondent, it is that the respondent had a duty of care to protect him from wrongdoing by the Law Society and its employees. This duty was said to arise from the ability of the respondent to control the Law Society, the knowledge possessed by the respondent that the applicant was alleging wrongdoing by the Law Society and a voluntary assumption of a duty of care by the respondent. Secondly, the appellant alleged breaches of the HRA, and in particular those provisions stating the appellant’s right to freedom from racial discrimination.

26. The allegation of voluntary assumption of a duty of care is grounded in the email which the appellant sent to, inter alia, the Chief Minister on 14 May 2014 complaining about the conduct of the Law Society: see [16] above. The response he received from the Chief Minister’s Officer was, apparently, to the effect that his correspondence was receiving attention. The appellant submitted that this response created in him a legitimate expectation that his complaint would be addressed, which in turn fed into the existence of a duty of care on the part of the respondent to protect him from wrongdoing, including discrimination, on the part of the Law Society.

27. The appellant relied heavily upon the terms of s 466 of the LPA as a foundation for the proposition that the respondent had power to control the Law Society. That section provides:

466 Reports to Minister about handling of complaints (1) A council must give the Minister, at the times and in relation to the periods required by the Minister, reports on the handling of complaints. (2) A report is to deal with matters required by the Minister and other matters the council considers appropriate to include in the report. (3) The obligations under this section are in addition to any obligations to provide an annual or other report under any other law.

28. The term “complaint” in s 466 is defined in s 383 as meaning “a complaint under this chapter”. Both ss 383 and 466 are found in Chapter 4 of the LPA which deals with Complaints and Discipline. It is abundantly clear from the structure of Chapter 4 that the complaints to which the chapter applies are complaints about the conduct of legal practitioners. The ongoing dispute between the appellant and the Law Society regarding the appellant’s requests for a practising certificate and the correspondence exchanged as part of that dispute did not constitute a “complaint” for the purposes of Chapter 4. Similarly, the appellant’s email to the Chief Minister and others on 14 May 2014 did not constitute a “complaint” for the purposes of Chapter 4 as s 394 of the LPA provides that a complaint must be made in writing to the relevant council. As Crowe AJ observed, it cannot sensibly be suggested that the exercise in which the Law Society was engaged between 17 and 21 March 2016 constituted the handling of a complaint for the purposes of s 466 of the LPA. The Law Society was engaged in considering the appellant’s application that he be issued with a practising certificate. It follows that the relevant Minister had no power under s 466 of the LPA to require the Law Society to provide him with a report regarding the appellant’s dispute with it. It also follows that the provisions of s 466 can provide no foundation for the duty of care asserted by the appellant.

29. The appellant’s submission that the respondent had voluntarily assumed a duty of care towards him is plainly without substance. The response from the Chief Minister’s Office that the appellant’s correspondence was “receiving attention” could not create any legitimate expectation on the part of the appellant that the matter of which he complained would be resolved in his favour. There was, in fact, no evidence of what actions were taken, or what enquiries were made, by the Chief Minister’s Office (or by the other Ministers and MLA’s to whom the email was addressed). The email of 14 May 2014 and the attached documents were ruled inadmissible by Crowe AJ by virtue of s 16 of the PPA, however in order to make sense of the appellant’s submissions the appellant provided the Court with copies of that documentation at the hearing of the appeal. On the copy of the email of 14 May 2014 provided to the Court, someone has made a handwritten note: “[t]his is a vexatious complaint”. From the affidavit of John Gray affirmed 18 April 2019 (Exhibit D4 in the proceedings below), it appears that this annotation was made by the Attorney-General, but it is not clear when it was made. There is no evidence that the relevant Minister did not give appropriate consideration to the appellant’s complaints. The annotation may reflect the Minister’s assessment of the complaint after careful consideration and enquiry. There was certainly no basis for a finding that this annotation was the result, or evidence, of racial discrimination against the appellant.

30. Individual MLA’s or Ministers may well have been aware prior to March 2016 that the appellant had a dispute with the Law Society in which he was alleging that he was being discriminated against. There was, apparently, correspondence between the appellant and the ACT Deputy Chief Minister and the ACT Attorney-General going back some years prior to March 2016 in addition to the email of 14 May 2014, but even so the fact that the appellant may have complained to a Minister or Ministers regarding the conduct of the Law Society cannot found a duty on the part of the respondent of the nature asserted by the appellant. The appellant has not identified any obligation, statutory or otherwise, on the part of any Minister, or the respondent, to act upon his complaints. Any claim by the appellant that the respondent owed him a duty of the type alleged is simply unsustainable. On that basis alone, his claim in tort against the respondent was and remains hopeless. For the reasons given below at [34] to [37], the assertions that the respondent had the power to control the Law Society should be rejected.

31. The appellant raised one complaint against the respondent which was not dependent upon establishing that the respondent had the power to control the Law Society. In his grounds of appeal, the appellant pleaded that Crowe AJ had fallen into error by concluding that his claim against the respondent under the HRA was entirely dependent on establishing that the respondent had control over the Law Society. This is not an entirely correct description of the reasons of Crowe AJ for dismissing his claim against the respondent based on the HRA. It is true that at [112] of his Honour’s judgment, Crowe AJ said that the appellant’s claim against the respondent depended upon the establishment of control by the Attorney-General over the way in which the Law Society carried out its functions, and that he rejected that argument. His Honour then went on to say, however, that on the facts as his Honour found them the claim must fail. This requires some explanation. Part of the appellant’s complaint against the respondent is that he was discriminated against by the Attorney-General because of the colour of his skin and/or his Nigerian heritage. His complaint was that the Attorney-General had ordered the Law Society to provide reports with regard to white-skinned lawyers, but had not done so in his case. The appellant identified the case of Byrne v Council of the Law Society of the ACT (Occupational Discipline) [2015] ACAT 19 (Byrne) as the basis of his assertion of discriminatory treatment.

32. The first and most obvious problem for the appellant is that, for the reasons we have given, the Attorney-General did not have any power under s 466 of the LPA to require the Law Society to provide a report to him concerning the appellant’s dispute with the Law Society regarding his application for a practising certificate. Secondly, the facts in Byrne were entirely different to those in the present case. Mr Byrne was a former client of a firm of lawyers in the ACT. He made a complaint to the Law Society regarding those lawyers. The Law Society dismissed his complaint under s 412 of the LPA. Mr Byrne was dissatisfied and appealed to the ACT Civil and Administrative Tribunal (ACAT) pursuant to s 416 of the LPA. The ACAT ultimately set aside the decision of the Law Society dismissing Mr Byrne’s complaint under s 412 and ordered that it commence proceedings seeking findings of professional misconduct or unsatisfactory professional conduct against the legal practitioners concerned. In that context, officers within the ACT Justice and Community Safety Directorate (JACS) considered it desirable that the Attorney-General require the Law Society to advise what action had been taken by the Law Society following the ACAT decision: see the affidavit of Amy Sydney affirmed 8 May 2019, and exhibit D5 in the proceeding below. To the extent that the Attorney-General exercised his power under s 466 of the LPA to require the Law Society to provide a report, it was an exercise of the power given by the section to require a report of how the Law Society had treated a complaint against a legal practitioner, which is a complaint to which the terms of s 466 are directed. This may be contrasted with the appellant’s situation, which did not involve a complaint against him for the purposes of Part 4 of the LPA, but involved a complaint by him to various Ministers and MLA’s regarding the Law Society’s treatment of him in his application for a practising certificate.

33. As Crowe AJ observed, once the allegation that the appellant’s complaint had been treated differently from the complaint in Byrne was removed, there was no evidence that the Law Society had discriminated against the appellant on any basis; it became a simple ipse dixit. What the above demonstrates is that Crowe AJ did not simply base his rejection of the appellant’s claim against the respondent on the appellant’s failure to establish that the Law Society was under the control of the respondent; his Honour also considered the substance of the appellant’s complaint that the respondent had discriminated against him. We will nevertheless consider the appellant’s submission that the respondent had the power to exercise control over the Law Society.

34. In the proceedings before Crowe AJ, the appellant asserted that the Law Society was a “public authority” for the purposes of the HRA. The evident purpose of this assertion was to establish that the Law Society was bound to act in a way that is compatible with human rights: s 40B(1) of the HRA. This was part of the appellant’s wider submission that the respondent was legally responsible for the actions of the Law Society. For the purposes of the HRA, a “public authority” is defined as including “a territory authority”. This term is not defined in the HRA but is defined for the purposes of ACT enactments in Part 1 of the Dictionary to the Legislation Act 2001 (ACT) (the Legislation Act) as “a body established for a public purpose under an Act”. The Law Society is established pursuant to s 576 of the LPA, so that the Law Society is a body established under an Act. But is it a body established for a “public purpose”?

35. The term “public purpose” is not defined either in the LPA or the Legislation Act. Both “public” and “purpose” may have many meanings depending on the context in which they are found. The primary meaning of the word “public” as stated in the th Macquarie Dictionary, 6 edition, 2013 is “of, relating to, or affecting the people as a whole or the community, state, or nation”. The word “purpose” is defined in the same authority as “the object for which anything exists or is done, made, used, etc”. In order for the Law Society to be a “territory authority” for the purposes of the HRA, it must be a body established for the community as a whole. It is undoubtedly the case that the Law Society exercises functions in which the public generally may have an interest but a distinction must be drawn between the concepts of “public interest” and “public purpose”. The purpose for which the Law Society was created by the LPA is the regulation of the legal profession, which cannot in this sense be described as a public purpose. For this reason, the Law Society is not a body which is subject to the provisions of s 40B of the HRA.

36. Even if we are wrong in finding that the Law Society was not subject to the provisions of s 40B of the HRA, the appellant does not necessarily succeed in his claim against the respondent. In order to succeed, the appellant must establish two further matters: that the Law Society had breached his rights under the HRA and that the respondent was liable in some way for the breach such that relief should be granted in his favour against the respondent.

37. Turning to the second matter first, the Law Society is established as a corporation which may sue or be sued in its corporate name: s 576 LPA. The constitution of the Law Society is that which was in force at the time of the implementation of the LPA together with such amendments as are approved by members of the Law Society and the Attorney-General. The constitution of the Law Society provides that the management of the affairs of the Law Society are vested in the Council of the Law Society. There is no provision in the LPA or the constitution of the Law Society for members of the Council of the Law Society to be appointed by the Attorney-General or some other aspect of government. In the proceeding before Crowe AJ, the appellant cited ss 253(4), 322, 373(2), 576(5) and 583(2) of the LPA as indicia of the respondent’s power to control the Law Society. Section 253(4) provides that the Law Society may use money in a statutory interest account in particular ways only with the Attorney-General’s written consent. This provision does not empower the Attorney-General to direct the conduct of the Law Society, but effectively provides the Attorney-General with a power to veto a proposed use of money in a statutory interest account. Section 322(2) of the LPA provides that the Law Society must give a copy of the annual audit of the fidelity fund to the Attorney-General. The section does not provide for any control of the functions of the Law Society by the Attorney-General. Section 373(2) provides that the Attorney-General must approve the terms of a policy of fidelity insurance with regard to regulated mortgages. This section also does not provide for any control of the day to day operations or functions of the Law Society. As previously noted, s 576(5) of the LPA requires any proposed amendment to the constitution of the Law Society to be approved by the Attorney-General. Section 583(2) requires the Council of the Law Society to provide to the Attorney-General a copy of any proposed legal profession rule. As Crowe AJ correctly observed, these provisions set out very specific areas where the Law Society is required to obtain the consent of the Attorney-General for a specific action or to report to the Attorney-General. These provisions provide no basis for suggesting that the Attorney-General or more generally, the respondent had the power to more broadly control the day to day operations of the Law Society in the execution of its statutory functions. There is nothing in the terms of the LPA which suggests that the statutory relationship between the Law Society and the respondent (including for this purpose the relevant Ministers) was such that the respondent may be held liable, under the HRA or otherwise, for the actions of the Law Society.

38. With regard to the need for the appellant to establish that the Law Society had, in fact, breached his rights under the HRA, the appellant has not demonstrated any error on the part of Crowe AJ in finding that there was no evidence of discrimination against the appellant. A fortiori, there is no evidence of any direct breach of the appellant’s rights under the HRA by the respondent. For the above reasons, the appellant’s claims against the respondent based on the provisions of the HRA must fail.

39. To the extent that the appellant complains regarding the decision of Crowe AJ not to grant him an extension of time under the Limitation Act or s 40C of the HRA to pursue his claims, the appellant has failed to demonstrate error on the part of his Honour. Crowe AJ applied the correct principles and the appellant has not demonstrated any error of fact on the part of Crowe AJ. In any event, Crowe AJ went on to consider the merits of the appellant’s claims, and concluded they were without legal merit. In our opinion, his Honour was correct to so find, and the appellant’s complaints about the denial of an extension of the limitation period fall away as irrelevant.

Conclusion

40. The appeal should be dismissed, with costs.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justices Burns, Loukas- Karlsson and Acting Justice Robinson.

Associate:

Date: