Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 32, 79, 82

Discrimination Act 1991 s 4AA

Human Rights Commission Act 2005 ss 53A, 53E

Legal Profession Act 2006 s 81

Cases cited: ACN 120 452 744 Pty Ltd v Newham Business Brokers Pty Ltd [2021] ACAT 37

Bailey v Bottrill [2021] ACAT 103

B & T Constructions (ACT) Pty Ltd v Constructions Occupations Registrar and the Owners - Unit Plan 3324 [2013] ACTSC 219

Complainant 201908 v Commissioner for Fair Trading [2021] ACAT 2

Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4

Ezekiel-Hart v Law Society of the Australian Capital Territory [2012] ACTSC 103

Ezekiel-Hart v ACT Law Society [2021] ACAT 29

Ezekiel-Hart v Council of the Law Society of the ACT & Anor [2021] ACTSC 133

Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275

In the matter of AB [2018] ACAT 18

Legal Practitioner v Council of the Law Society (ACT) [2011] ACTSC 207

McGlade v Human Rights and Equal Opportunity Commission & Anor [2000] FCA 1477

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

State Electricity Commission of Victoria v Rabel [1998] 1VR 102

Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

1. The reasons below explain why the Tribunal has made the orders set out above. In the reasons below, a reference to 'ACAT' or 'tribunal' refers to the ACT Civil and Administrative Tribunal generally, whereas 'Tribunal' or 'Appeal Tribunal' refers to the current members. When referring to the first instance decision, the Tribunal uses the expression 'original decision', 'Original Tribunal', 'Senior Member' 'or the 'first instance' proceedings/decision.

2. The matter was heard on 27 September 2021. The Tribunal had before it the agreed appeal hearing documents (the Appeal Documents), the Application for Appeal, Submissions and Submissions in Reply of the parties. The appellant was self-represented. The respondent was represented by Mr D Moujalli of counsel instructed by McInnes Wilson Lawyers.

3. The Tribunal reserved its decision and indicated it would provide written reasons. These are those reasons.

4. Before setting out its reasons, it is appropriate to set out the role of an Appeal Tribunal in relation to the review of the decision of the Original Tribunal, and the legal principles that guide the Appeal Tribunal in its review.

5. This matter concerns an appeal from the original decision of the tribunal in Ezekiel-Hart v ACT Law Society.[1] That decision was with respect to an interim application filed by the respondent seeking to strike-out the substantive application, and seeking an order that the appellant not be permitted to commence further proceedings against it without leave of the tribunal.

6. Pursuant to section 79(3) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) a party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law. Section 82 of the ACAT Act provides the process by which such appeals are to be conducted.

7. The manner in which appeals in the tribunal are dealt with now appears to be substantially settled law. Section 79(3) of the ACAT Act provides that a party to an original application may appeal the decision to the tribunal "on a question of fact or law." The case law on section 79(3) recently affirmed and applied in Bailey v Bottrill (Bailey)[2] and in ACN 120 452 744 Pty Ltd v Newham Business Brokers Pty Ltd (Newham)[3] has interpreted section 79(3) to mean that the appellant must show an error of fact or law in the decision under appeal and that the error affected the result.

8. Section 82 of the ACAT Act gives the Appeal Tribunal a choice as to the method by which an appeal pursuant to section 79 should be heard. The case law on section 82 was similarly affirmed and applied in Bailey and Newham.

9. That case law draws upon Refshauge ACJ's consideration in Giusida Pty Limited v Commissioner for ACT Revenue (Giusida)[4] of the method by which a tribunal appeal should be heard. His Honour repeated[5] his earlier observation in Legal Practitioner v Council of the Law Society of the ACT (Legal Practitioner)[6] that an appeal under section 82(a) of the ACAT Act is what is usually called a "hearing de novo" and an appeal under section 82(b) is what is usually called a 'rehearing'. In Legal Practitioner,[7] his Honour while reaching no firm view, suggested that unless there had been a "complete or substantial failure of process" the appeal should be as a rehearing. His Honour's reference in Giusida[8] to his earlier outline in Theodorelos v Nexus Projects Pty Ltd[9] as to the nature of an appeal conducted as a rehearing is a useful summation of the approach:

Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong.

10. Bailey[10] and Newham[11] similarly affirms the tribunal's own distillation of principles relevant to such appeals set out in the decision in Excel Intelligent Pty Ltd v Thomson (Excel Intelligent).[12] That distillation drew upon remarks of Burns J in B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar (B & T Constructions)[13] where His Honour quoted from a series of judgments about the nature of a rehearing.[14] The tribunal distilled five principles from this review:[15]

(a) An appeal court (or an appeal tribunal) must determine whether the decision appealed against is wrong because the court at first instance (or an original tribunal) fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong.

(b) Ordinarily, if there has been no further evidence admitted or no relevant change in law, a court in entertaining an appeal by way of rehearing (or an appeal tribunal) can exercise its appellate powers only if satisfied that there was an error on the part of the court below (or an original tribunal).

(c) The appellate court (or an appeal tribunal) will give proper allowance to the advantage of the court of first instance (or an original tribunal) who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.

(d) The appellate court (or an appeal Tribunal) is obliged to conduct a real review of the trial and the reasons of the court of first instance (or an original tribunal).

(e) In an appeal by way of rehearing, once error below has been found (after making proper allowance for the advantages of the trial judge or original tribunal), the appellate court (or appeal tribunal) can substitute its own decision based on the facts and the law as they now stand.

11. This approach and these principles have guided the Appeal Tribunal in reviewing the first instance decision and in reaching its conclusion.

12. There is a history of litigation between the parties and this has resulted in numerous proceedings in ACAT and the ACT Supreme Court.

13. The most recent summary of these proceedings (at October 2020) in an affidavit filed on behalf of the respondent in the first instance proceedings lists 31 applications over the course of more than 11 years.[16]

14. The Original Tribunal handed down a decision and provided reasons for decision on 12 April 2021.[17]

15. The background to the Original Tribunal's decision is set out in two sections of its reasons for decision. The Appeal Tribunal sets out below, the sections from those reasons which detail the procedural history of this matter and the substantive application:

8. 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.

9. 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.

10. 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.

11. 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.

12. The interim application was then adjourned pending the Supreme Court's determination of the strike-out application.

13. 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.

14. The Supreme Court heard the strike-out application in SC 239 of 2020 on 26 November 2020 and has reserved its decision.

15. 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.

29. 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.

30. 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.

31. 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.

32. 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."

...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? [errors in original]

34. 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. [errors in original]

35. 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.

36. 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. Accordingly, I will assume the narrow characterisation of the claim, being a review of the consideration of the 2020 application only.

37. With that in mind, I turn to whether the application should be struck out as frivolous or vexatious, or an abuse of process.

16. The Original Tribunal's conclusion is set out in its reasons for decision as below:

86. 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.

87. Accordingly, the application is wholly dismissed under subsection 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008.

17. The appellant lodged an application for appeal on 21 April 2021 (in total 112 paragraphs). In response to orders dated 6 May 2021 the appellant filed a revised list of alleged errors of fact, errors of law or discretionary errors on 16 June 2021 (in total 650 paragraphs). The respondent filed submissions on 6 August 2021. The appellant provided material in reply on 18 August 2021 (in total 123 paragraphs). By an in chambers orders of 20 September 2021 the parties were invited to make oral submissions with respect to a series of identifiable alleged errors of fact, errors of law or discretionary errors. In response the appellant lodged an outline of oral submissions prior to the hearing (inconsistently numbered, but totalling 126 paragraphs).

18. By orders of 6 May 2021 the Tribunal directed the appeal hearing proceed as a review of the original decision unless the Appeal Tribunal orders otherwise. The Appeal Tribunal deals with the appeal as a review, that is to say as a rehearing.

19. The Appeal Tribunal reserved its decision at the conclusion of hearing on 27 September 2021.

20. Section 32 of the ACAT Act relevantly in part 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 - _

(a) the tribunal has decided an application (the original application); and

(b) the original application was not an appeal from a decision by the tribunal.

(2) However, this section does not apply to an application for review of a decision under the Freedom of Information Act 2016, the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005.

(3) A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.

_(1) An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal - _

(b) as a review of all or part of the original decision on the application by the tribunal.

23. Section 53E of the Human Rights Commission Act 2005 (HRC Act) provides:

Kinds of orders - unlawful acts under the Discrimination Act

(a) the commission refers a complaint to the ACAT under this division; and

(b) the ACAT is satisfied that the person complained about engaged in an unlawful act.

(2) The ACAT must make 1 or more of the following orders:

(a) that the person complained about not repeat or continue the unlawful act;

(b) that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;

(c) unless the complaint has been dealt with as a representative complaint - that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.

_(3) In making an order under subsection (2) (c), the ACAT must consider - _

(a) the person's right to equality before the law and the impact of the discrimination on the enjoyment of that right; and

(b) the inherent dignity of all people and the impact of the discrimination on the person's dignity; and

(c) the public interest in ensuring an appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination and other human rights; and

Examples - par (b) - impact of discrimination

distress, humiliation, loss of self-esteem, loss of enjoyment of life

serious or repeated discrimination, intentional or malicious discrimination, discrimination on the grounds of 2 or more protected attributes under the Discrimination Act 1991

a public apology, systemic changes to protect against further discrimination

(4) The commission may, with the ACAT's consent, intervene in a complaint to make submissions about an order under subsection (2) (c).

representative complaint means a complaint that is dealt with by the commission as a representative complaint under section 71.

24. Section 4AA of the Discrimination Act 1991 (Discrimination Act) provides:

Interpretation beneficial to people with protected attributes

_This Act must be interpreted in a way that is beneficial to a person who has a protected attribute, to the extent it is possible to do so consistently with - _

(b) human rights under the Human Rights Act 2004.

25. The Original Tribunal observed that the HRC Complaint the subject of proceedings, was in substantially the same terms as a statement of claim in Supreme Court proceedings SC 239 of 2020 filed on the same day.[19] That pleading was described by her Honour Associate Justice McWilliam as "embarrassing [in the sense[20] of 'unintelligible, ambiguous, or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim or defence']"; as containing "rolled up allegations and language that is confusing, so that there are parts that are unintelligible and ambiguities that make it difficult for the defendants and the Court to understand the substance of the claim".[21]

26. Such is the case here. Though the appellant has filed an application and submissions totalling more than 1,000 paragraphs, the position is as Refshauge J described it in Ezekiel-Hart v Law Society of the Australian Capital Territory,[22] that "the submissions of Mr Ezekiel-Hart ... were not helpful and, accordingly, I have not addressed all of the issues in them in any detail or sometimes at all". Clearly this was a difficulty the Original Tribunal also faced, as it observed "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".[23]

27. Allowing for these difficulties and doing the best that it can with the material that was filed by the appellant, the Appeal Tribunal identified a series of alleged errors of fact, errors of law or discretionary errors. The parties were invited by way of an in chambers order to make oral submissions with respect to each of these matters. Adopting the relevant paragraphs of the order (Appeal point), the matters were:

2. The appellant's application of appeal filed 21 April 2021 contends, inter alia, the Tribunal in making the Original Decision misinterpreted section 53E of the Discrimination Act 1991 in dismissing a "Commission-initiated discrimination matter" without hearing the application.

5. In his Reply filed 18 August 2021 the appellant does, in part, engage with the task of identifying errors of fact, errors of law or discretionary errors as follows:

(i) At paras 87-88 the appellant contends that Tribunal made an error of fact in the Original Decision in not finding the impact of victimisation on him was real and continuing.

(i) At paras 51-56 the Appellant contends the Tribunal's decision in the Original Decision in finding his application an abuse of process was an error in law because it is inconsistent with the finding of the Supreme Court in Ezekiel-Hart v Council of the Law Society of the ACT & Anor [2021] ACTSC 133 which held that a related application was not an abuse of process.

(ii) At paras 58-62 the appellant contends that Tribunal erred in law in the Original Decision in dismissing his application given section 53E of the Discrimination Act 1991 only requires a "kernel of a case" to establish discrimination.

(iii) At paras 78-80 the appellant contends that Tribunal erred in law in the Original Decision in not taking any proper account of section 4AA of the Discrimination Act 1991, namely that whether or not the Appellant continues to suffer the effect of the discrimination is not a relevant factor.

(iv) At paras 87-88 the appellant contends that Tribunal erred in law in the Original Decision in finding that the effect on the appellant's breached right must be significant to ground a finding of discrimination.

(v) At paras 96-98 the Appellant contends that Tribunal erred in law in the Original Decision because it is inconsistent with the finding of the Supreme Court in Ezekiel-Hart v Council of the Law Society of the ACT & Anor [2021] ACTSC 133.

(i) At paras 12-18 the appellant misconstrues that "have regard to the circumstances which exist at the time of the appeal" does not relate to the Respondent's conduct at the time of his application to the ACT Human Rights Commission, but rather at the time of this current appeal. This is not a discretionary error of the Tribunal in making the Original Decision.

(ii) At paras 28-33 the appellant misconstrues that "exercising a discretion on a wrong principle or in a way that is clearly wrong" does not relate to the Respondent's prior conduct, but rather to the conduct of the Tribunal in making the Original Decision. This is not a discretionary error of the Tribunal in making the Original Decision.

28. The parties made oral submissions with respect to these matters at the hearing.

29. In the various documents filed in the appeal, the appellant raised many additional issues much of which was unintelligible. In an endeavour to have the benefit of his submissions the Appeal Tribunal sought to focus his attention on the matters detailed above. This was not always successful. In the early part of his oral submissions much of what he said was incomprehensible. Except for some initial connection problems this was not a fault with the remote proceedings nor the recording technology but rather the appellant's manner of presentation.

30. In his oral submissions the appellant submitted as follows as Appeal point 2:

[T]he Tribunal in making the Original Decision misinterpreted section 53E of the [Human Rights Commission Act 2005] in dismissing a "Commission-initiated discrimination matter" without hearing.

31. The appellant contends that section 53(2)(a) of the HRC Act clearly states repeated discrimination should not be allowed, and that a hearing is necessary to make the tribunal aware of that discrimination. The Original Tribunal has erred in dismissing the complaint without providing the opportunity for evidence of that repeated discrimination to be ventilated.[24]

32. The appellant further contends with respect to Appeal point 5(a)(i):

At paras 87-88 [of his Reply filed 18 August 2021] the appellant contends that Tribunal made an error of fact in the Original Decision in not finding the impact of victimisation on him was real and continuing.

33. The appellant did not directly address this ground in his oral submission but did raise it in his written reply.[25] He says the impact of the victimisation and "would be" victimisation is real and has "occasioned overwhelming losses, loss of work since 1 July 2020, loss of income, worthlessness, loss of reputation" and impact on his children and his health.[26]

34. The appellant further contends with respect to Appeal point 5(b)(i):

At paras 51-56 the Appellant contends the Tribunal's decision in the Original Decision in finding his application an abuse of process was an error in law because it is inconsistent with the finding of the Supreme Court in Ezekiel-Hart v Council of the Law Society of the ACT & Anor [2021] ACTSC 133 which held that a related application was not an abuse of process.

35. The appellant says that "the difficulty with the difference in time" [that the Original Tribunal's decision was delivered on 12 April 2021 while the Supreme Court decision was not handed down until 30 June 2021] was cured by the fact that the tribunal had obtained the transcript of the Supreme Court hearing and "in that transcript the Supreme Court judge clearly asks question[s] to understand that the respondent admitted that it [his statement of claim] was not an abuse of process".[27] The appellant says given this the Original Tribunal was aware that the Supreme Court proceedings were not an abuse of process. It was therefore an error of law for the tribunal to then decide his Human Rights Commission-referred complaint was an abuse and dismiss it.

36. The appellant further contends with respect to Appeal point 5(b)(ii):

At paras 58-62 the appellant contends that Tribunal erred in law in the Original Decision in dismissing his application given section 53E of the Human Rights Commission Act 2005 only requires a "kernel of a case" to establish discrimination.

37. The HRC Act (and the Discrimination Act) is a beneficial law which is protective. Given this, if the Original Tribunal failed to find out if there was repeated discrimination (by not holding a hearing) it has necessarily fallen into error.[28] The HRC Act only requires a kernel of a case of discrimination. In this case the Original Tribunal found distress was established, and once that distress was established the tribunal had no other discretion than to hear the matter.[29]

38. The appellant further contends with respect to Appeal point 5(b)(iii):

At paras 78-80 the appellant contends that Tribunal erred in law in the Original Decision in not taking any proper account of section 4AA of the Discrimination Act 1991, namely that whether or not the Appellant continues to suffer the effect of the discrimination is not a relevant factor.

39. The effect of the beneficial interpretation provisions provided to a person who has a protected attribute by section 4AA is such that if the discrimination alleged is having a continuing effect on him, which he says it is, the Original Tribunal should not dismiss it. Rather, it should have proceeded to a hearing so as to understand or find out whether the ill-effect was or was not continuing. The appellant says the Original Tribunal fell into error by failing to do this.[30]

40. The appellant further contends with respect to Appeal point 5(b)(iv):

At paras 87-88 the appellant contends that Tribunal erred in law in the Original Decision in finding that the effect on the appellant's breached right must be significant to ground a finding of discrimination.

41. The appellant did not specifically address this ground in his oral submissions but did raise it in his response to the respondent's oral submissions. The respondent had contended the appellant's claim was dismissed because, irrespective of the significance of any breach, there was no substantive remedy available and, in those circumstances, it would have been an abuse of process to require the tribunal to devote substantial resources to it. The appellant referred to the tribunal's decision in Complainant 201908 v Commissioner for Fair Trading (Complainant 201908)[31] where it was held that discriminatory action had compromised an applicant's right to equality before the law and, as a consequence, undermined his dignity. The remedy to address that loss of dignity were orders for an apology and damages. The appellant says he suffered the same loss of dignity, and orders in the same terms would have provided him with a substantive remedy.[32]

42. The appellant further contends with respect to Appeal point 5(b)(v):

At paras 96-98 the Appellant contends that Tribunal erred in law in the Original Decision because it is inconsistent with the finding of the Supreme Court in Ezekiel-Hart v Council of the Law Society of the ACT & Anor [2021] ACTSC 133.

43. The appellant was asked to address what he says is the second inconsistency between the Original Tribunal's decision and the finding of the Supreme Court. This is that, while the Court struck out his statement of claim, it did not summarily dismiss it. The appellant contends the tribunal should have done likewise. He contends the tribunal does have the power to do so, because the directive that needs to be followed is the authorising law's [the HRC Act] and the only direction open for the tribunal is to proceed to a hearing.[33]

44. The appellant conceded the discretionary errors which he had asserted in his reply were misconstrued and these alleged errors were not pressed.[34]

45. In its oral submissions the respondent submitted as follows, in respect of Appeal point 2:

The Tribunal, in making the Original Decision, misinterpreted section 53E of the Human Rights Commission Act 2005 in dismissing a "Commission-initiated discrimination matter" without hearing.

46. The appellant has provided no authority to support that proposition that because of the particular nature of his claim, the Tribunal did not have the statutory discretion conferred by section 32 of the ACAT Act to dismiss his claim either for lack of substance or as an abuse of process. Indeed, the tribunal's decision in Sirohi v Director-General, Justice and Community Safety Directorate (Sirohi)[35] supports the contrary view, where a discrimination claim was dismissed pursuant to section 32.[36] The respondent further contends that section 32 does not "carve out any particular types of claims", particularly where very serious allegations of dishonest and malicious conduct are made "replete with allegations of deceit, lying and misleading the courts and tribunals" and which are not particularised in any way.[37] The respondent noted that the Original Tribunal identified the continued raising of such allegations as an abuse of process and this formed part of the reason to strike out the complaint.[38] The respondent contends the Original Tribunal made no error in treating a discrimination claim like any other application before the tribunal and subject to the purview of section 32.[39]

47. The respondent further contends with respect to Appeal point 5(a)(i):

At paras 87-88 [of his Reply filed 18 August 2021] the appellant contends that Tribunal made an error of fact in the Original Decision in not finding the impact of victimisation on him was real and continuing.

48. The Original Tribunal was dealing with an interlocutory application and gave the appellant the benefit of the doubt that he may have been able to make out a case of some type of victimisation. But the Original Tribunal then had to consider whether the tribunal was in a position to provide a real or substantive remedy.[40] It is evident from the original decision that there was no evidence before it of any loss whatsoever.[41] The complaint was about delay in the making of the decision to grant the appellant a practising certificate. Even assuming there had been delay there had been no loss. Independently of the Original Tribunal's decision, the appellant had been refused a practising certificate and had no right to one, in the absence of exercising his statutory right of appeal to the Supreme Court under section 81 of the Legal Profession Act 2006. Even if there had been no delay in making the decision by the respondent he would not have had a practising certificate. None of the remedies available to the Original Tribunal under section 53E(2) would have been appropriate.[42]

49. The respondent further contends with respect to Appeal point 5(b)(i):

At paras 51-56 the Appellant contends the Tribunal's decision in the Original Decision in finding his application an abuse of process was an error in law because it is inconsistent with the finding of the Supreme Court in Ezekiel-Hart v Council of the Law Society of the ACT & Anor [2021] ACTSC 133 which held that a related application was not an abuse of process.

50. There are substantial differences between a proceeding in the Supreme Court and an application in the tribunal. The tribunal is limited by legislation in what it can do, the Supreme Court is not. It was open to the Supreme Court in its decision to strike out the appellant's statement of claim but allow it to be re-pleaded and keep the proceedings on foot. This is what the Court did. It is not open to the tribunal under section 32(2) to do this. Its powers extend to either refusing to hear an application, dismissing an application, or making a direction to a person not to make an application of the same kind. Given the options open in each respective venue it was not an error of law for the Original Tribunal to proceed differently from the Supreme Court.[43]

51. The respondent further contends with respect to Appeal point 5(b)(ii):

At paras 58-62 the appellant contends that Tribunal erred in law in the Original Decision in dismissing his application given section 53E of the Human Rights Commission Act 2005 only requires a "kernel of a case" to establish discrimination.

52. Even if the appellant did have a kernel of a case this could not result in any substantive relief under section 53E(2) of the HRC Act. The respondent submitted that Sirohi[44] held that lack of substance refers not only to the prospects of success of an appellant's claim but also the prospects of whether the tribunal could grant the relief sought by the complainant. In the circumstances where the respondent had decided that the appellant was not entitled to a practising certificate the remedies in sub-section 2 were not available. As such no error of law arises.[45]

53. The respondent further contends with respect to Appeal point 5(b)(iii):

At paras 78-80 the appellant contends that Tribunal erred in law in the Original Decision in not taking any proper account of section 4AA of the Discrimination Act 1991, namely that whether or not the Appellant continues to suffer the effect of the discrimination is not a relevant factor.

54. The appellant contends that he should have had the advantage of the section 4AA's beneficial interpretation provision when the Original Tribunal determined that whether or not he continues to suffer the effect of any discrimination was not a relevant factor. The respondent contends that the matters the Original Tribunal took into account in determining an abuse of process - that no substantive remedy being available; that the appellant was seeking to re-agitate issues already decided; and the un-particularised nature of the allegations made against the respondent - made it unnecessary or irrelevant for the Original Tribunal to consider whether the appellant continued to suffer the effects of any alleged discrimination.[46]

55. The respondent further contends with respect to Appeal point 5(b)(iv):

At paras 87-88 the appellant contends that Tribunal erred in law in the Original Decision in finding that the effect on the appellant's breached right must be significant to ground a finding of discrimination.

56. The respondent contends the Original Tribunal's reason for dismissing the appellant's claim was not based on the breach being insignificant. The claim was dismissed because, irrespective of the significance of the breach, there was no substantive remedy available. In these circumstances it would have been an abuse of process to require the tribunal to devote substantial resources and the respondent substantial costs to deal with a claim for which there was no substantive remedy. The respondent says the meaning of "lacking in substance" goes both to the prospects that the tribunal will find the respondent to have engaged in discriminatory conduct, as well as to the prospects that the tribunal can grant relief. The relevant question to ask is whether, as Carr J said in McGlade v Human Rights and Equal Opportunity Commission & Anor[47] (paraphrasing Ormiston JA's description in State Electricity Commission of Victoria v Rabel[48]) there are facts that would undoubtedly deny the complainant relief.[49] The respondent says there are such facts, namely the characterisation of the complaint by the Original Tribunal narrowed purely to the delay in deciding on his 2020 application for a practising certificate. The tribunal could offer no substantive remedy if discrimination was found to be at the root of that delay.

57. The respondent further contends with respect to Appeal point 5(b)(v):

At paras 96-98 the appellant contends that Tribunal erred in law in the Original Decision because it is inconsistent with the finding of the Supreme Court in Ezekiel-Hart v Council of the Law Society of the ACT & Anor [2021] ACTSC 133.

58. As the Original Tribunal recognised,[50] the tribunal proceedings go to delay by the respondent in making a decision about the appellant's practising certificate. The Supreme Court proceedings go to a different matter - the decision by the respondent not to issue the appellant with that certificate. There cannot be an inconsistency between what the two forums decided given they were deciding different matters.[51]

59. The scope of the appellant's original complaint is clear. As the Original Tribunal correctly delineated, it is one with a narrow characterisation - the respondent's delay in deciding on his 2020 application for an unrestricted practising certificate. The applicant says this delay is because of discrimination due to race.

60. The scope of the Original Tribunal's powers is also clear. Section 32(2) of the ACAT Act allowed it to do one 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 - _

61. Both of those matters are relevant to the appellant's grounds of appeal distilled by the Appeal Tribunal in paragraphs 5(b)(i) and 5(b)(v) of its in chambers order as above. The appellant says the Original Tribunal fell into error of law because it is inconsistent with McWilliam AsJ's decision in Ezekiel-Hart v Council of the Law Society of the ACT & Anor.[52] Putting aside the practical issue of the sequence in which the two decisions were made,[53] the two decisions deal with substantively different matters. We do not give any weight at all to the appellant's assertion "the difficulty with the difference in time" was cured by the fact that the Original Tribunal had obtained the transcript of the Supreme Court hearing. The Original Tribunal had before it the appellant's complaint that the respondent's delay in making a decision about his practising certificate was discriminatory. The Supreme Court proceedings instead go to the decision by the respondent not to issue the appellant with that certificate. Similarly, the scope of the Original Tribunal's powers is legislatively limited but this was not so with the Supreme Court. That Court had the power to make an order that partially benefitted the appellant - striking out his claim while not summarily dismissing it or declaring him a vexatious litigant. That favourable course, in the appellant's eyes, was not open to the Original Tribunal.

62. Two further matters of the appellant's grounds of appeal distilled by the Tribunal in paragraphs 2 and 5(b)(ii) of its in chambers order relate to section 53E of the HRC Act. The appellant says the Original Tribunal fell into an error of law because it misinterpreted or failed to correctly apply section 53E. The appellant asserts two failures - it was not open to the Original Tribunal to dismiss his complaint referred by the HRC without a hearing; and once the tribunal had found a kernel of a claim, which the appellant says it must, it is similarly not open to it to dismiss his application.

63. The respondent has argued that the appellant's complaint lacked substance given it was directed at delay in refusing him a practising certificate not at the substantive act of refusing him that certificate (for which the respondent says the appellant has a clear remedy to pursue in the Supreme Court). The Original Tribunal was therefore correct to dismiss the claim under section 32 because no substantive remedy was open to it for any harm caused by such delay. Before any alleged delay, the appellant had no practising certificate; after the alleged delay he had no practising certificate. There is no loss or damage to point to that the tribunal could have remedied.

64. The appellant says in reply, citing Complainant 201908, that discriminatory action that has compromised an applicant's right to equality before the law, and as a consequence undermined his dignity, is compensable. The appellant says he suffered such loss of dignity, and orders in the same terms as were made in Complainant 201908 would have provided him with a substantive remedy. But it seems to us that the tribunal was considering these effects in Complainant 201908 in terms of attempting to assess compensation. As the tribunal in that matter said,[54] an applicant seeking compensation under section 53E(2) of the HRC Act must establish on the balance of probabilities that he suffered loss and damage. The appellant certainly lists "loss of income, worthlessness, loss of reputation" and "impact on his children and his health" as his loss and damage but all this (which is clearly genuinely felt by the appellant) relates to the refusal of a practising certificate, not to delay in that refusal.

65. We accept the Original Tribunal could offer no substantive remedy. The appellant had suffered no significant loss from the delay.

66. The Original Tribunal noted the right which the appellant has, but has not taken up, to review the substantive decision in the Supreme Court pursuant to section 81(1)(a) of the Legal Profession Act 2006.[55] Williams AsJ in the Supreme Court proceedings noted the appellant had demonstrated some insight into the availability of this avenue and had foreshadowed amending his statement of claim to include a section 81 challenge.[56] The Appeal Tribunal also canvassed his intentions with respect to this avenue with the appellant. His response, however, did not suggest that he was certain he would pursue this course:

MR EZEKIEL-HART: ...(Not transcribable)... trying to say, your Honour, is that the Act, section 81, I did not make application in relation to section 81. I made application in relation to section 40B and section 40C [Human Rights Act 2004] and one of the reasons which is obvious is that before we could know what is happening, 28 days is requirement for section 31 has elapsed so the only avenue left for a person is to go through the Human Right Commission Act which - within one year so that is the benefit of that section, Human Right Commission Act otherwise one of the section - one of the requirement of 28 days under section 81 a large ...(not transcribable)... trying to get all the necessary evidence and all the things, you are actually out of time and given the type of malicious nature, the application of the defendant will always be that you are out of time.[57]

67. It would seem to offer him an avenue to ventilate his substantive issue and he is urged to strongly consider that course.

68. The Appeal Tribunal concludes that no errors of fact, law or discretion are demonstrated by any of the grounds raised by the appellant.

69. The appellant has not demonstrated an error of fact, law or discretion pursuant to section 79 of the ACAT Act, therefore the appeal is dismissed.

[1] [2021] ACAT 29

[2] [2021] ACAT 103

[3] [2021] ACAT 37 at [4]

[4] [2016] ACTSC 275 at [29]- [39]

[6] [2011] ACTSC 207 at [52]

[7] [2011] ACTSC 207 at [54]

[8] [2016] ACTSC 275 at [36]

[9] [2009] ACTSC 149 at [78(2)]

[10] [2021] ACAT 103 at [5]

[11] [2021] ACAT 37 at [4]

[12] [2018] ACAT 4

[13] [2013] ACTSC 219 at [13]

[14] B & T Constructions at [13] ff

[16] Affidavit of Katie Binstock affirmed 23 October 2020 at paragraph 6, annexure C

[17] Ezekiel-Hart v ACT Law Society [2021] ACAT 29

[20] As detailed by Ward J in Szanto v Bainton [2011] NSWSC 985 at [107]

[21] Ezekiel-Hart v Council of the Law Society of the ACT & Anor [2021] ACTSC 133 at [80]

[22] [2012] ACTSC 103 at [119]

[24] Transcript of proceedings 27 September 2021, page 13

[25] Appellant's reply filed 18 August 2021 at paragraphs 87-88

[26] Appellant's reply filed 18 August 2021 at paragraph 89

[27] Transcript of proceedings 27 September 2021, page 19

[28] Transcript of proceedings 27 September 2021, page 16

[29] Transcript of proceedings 27 September 2021, page 17

[30] Transcript of proceedings 27 September 2021, page 18

[31] [2021] ACAT 2 at [66]

[32] Transcript of proceedings 27 September 2021, page 28

[33] Transcript of proceedings 27 September 2021, page 21

[34] Transcript of proceedings 27 September 2021, page 22

[35] [2019] ACAT 84

[36] Transcript of proceedings 27 September 2021, page 22

[37] Transcript of proceedings 27 September 2021, page 22

[38] Original decision at [75]-[76]

[39] Transcript of proceedings 27 September 2021, page 23

[40] Transcript of proceedings 27 September 2021, page 23

[42] Transcript of proceedings 27 September 2021, pages 23-24

[43] Transcript of proceedings 27 September 2021, page 24

[45] Transcript of proceedings 27 September 2021, page 25

[46] Transcript of proceedings 27 September 2021 page 25-26

[47] [2000] FCA 1477 at [35]

[49] Transcript of proceedings 27 September 2021, page 26

[51] Transcript of proceedings 27 September 2021, pages 26-27

[52] [2021] ACTSC 133

[53] The Original Tribunal's decision was delivered on 12 April 2021, the Supreme Court decision on 30 June 2021.

[56] Ezekiel-Hart v Council of the Law Society of the ACT & Anor [2021] ACTSC 133 at [158]

[57] Transcript of proceedings 27 September 2021, page 31