Supreme Court of the ACT|2012-06-29

Ezekiel-Hart v Law Society of the Australian Capital Territory, Reis, King and Barnett [2012] ACTSC 103 (29 June 2012)

EMMANUEL TAM EZEKIEL-HART v THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY, ROBERT REIS, LARRY KING and ROD BARNETT

[2012] ACTSC 103 (29 June 2012)

PROCEDURE - Supreme Court procedure - default judgment - date when judgment may be entered - setting aside for irregularity.

PROCEDURE - Supreme Court procedure - abuse of process - whether subsequent proceedings constitute an abuse of process.

PROCEDURE - Supreme Court procedure - pleadings - striking out statement of claim as disclosing no cause of action.

Court Procedures Rules 2006 (ACT), rr 54(2), 73, 101, 102, 425(3), 1117, 1119, 1122(3), 1147, 6256, 6464

Legal Profession Regulation 2007 (ACT), table 10 item 3(c)

Legal profession (Solicitors) Rules 2007 (ACT), r 20

Law Council of Australia, Model Rules of Professional Conduct and Practice (Law Council of Australia, 2002)

Sykes E I et al, General Principles of Administrative Law (Butterworths, 4th ed, 1997)

Turner A K, The Doctrine of Res Judicata (Butterworths, 2nd ed, 1968)

Alliance Acceptance Co Ltd v Makas (1976) 12 ACTR 19

Anlaby v Praetorius (1888) 20 QBD 764

Australian Musical Distributors Pty Ltd v Whebell [1969] QWN 40

Banque Commerciale SA En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256

Beaudesert Shire Council v Smith [1966] HCA 49; (1966) 120 CLR 145

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616)

Cameron v King (Unreported, Supreme Court of Western Australia, Sanderson M, 2 March 1999)

Chahwin v Euphoric Pty Ltd [2009] NSWSC 805; (2009) 73 ACSR 252

Coburn v Brotchie [1890] VicLawRp 4; (1890) 16 VLR 6

Coffey v Secretary, Department of Social Security [1999] FCA 375; (1999) 86 FCR 434

Commonwealth Bank of Australia v Wales [2012] NSWSC 407

Dey v Victoria Railway Commissioner's [1949] HCA 1; (1949) 78 CLR 62

Evans v Bartlam [1937] AC 473

Ezekiel-Hart v Law Society of the Australian Capital Territory [2010] ACTCA 6; (2010) 173 ACTR 15

Ezekiel-Hart v Law Society of the Australian Capital Territory [2010] HCASL 210

Gamble v Killingsworth [1970] VicRp 22; [1970] VR 161

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84

House v The King [1936] HCA 40; (1936) 55 CLR 499

Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637

Hoong v Leung Cheong Kweng Mines Ltd [1964] AC 993

Leggott v Great Northern Railway Co (1876) 1 QB 599

Mahenthirarasa v State Rail Authority of New South Wales (No 2) [2008] NSWCA 201; (2008) 72 NSWLR 273

Manton v Cantwell [1920] AC 781

McDonald v South Australia [2011] FCA 297

Melbourne Steamship Co Ltd v Moorehead [1912] HCA 69; (1912) 15 CLR 333

Midland Bank Trust Co Ltd v Green [1980] CR 590

Mutual Life & Citizens' Assurance Co Ltd v Evatt [1968] HCA 74; (1968) 122 CLR 556

New Brunswick Railway Co v British and French Trust Corporation Ltd [1939] AC 1

NIML Ltd v MAN Financial Australia Ltd (No 2) [2004] VSC 510

Niven v Grant (1903) 29 VLR 102

Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180

Perkins v Williams (1900) 17 WN(NSW) 135

Pope v Aberdeen Transport Co Pty Ltd [1965] NSWR 1550

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

Saltoon v Lake [1978] 1 NSWLR 52

Sheldon v Brown Bayley's Steelworks Ltd [1953] 2 QB

Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699

Tobes v Fleet [2011] ACTSC 122

Williams v Spaatz [1992] HCA 34; (1992) 174 CLR 509

Worchild v University of Queensland Law Society Inc [2006] FCA 1078; (2006) 234 ALR 179

AND: THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

1. The appeal from the order of the Registrar be dismissed.

1. Emmanuel Tam Ezekiel-Hart is an Australian lawyer under the Legal Profession Act 2006 (ACT).

2. Mr Ezekiel-Hart was issued with a restricted practising certificate under s 44 of the Legal Profession Act, at least for the years ended 30 June 2008 and 2009, and worked as an employed solicitor for a local legal firm.

3. In late 2008, he decided to commence practice on his own account and, in order to do so, applied on 11 August 2008 for an unrestricted practising certificate also under

s 44 of the Legal Profession Act. The first defendant, the Law Society of the Australian Capital Territory (the Law Society), responded, setting out some requirements before Mr Ezekiel-Hart could commence practice on his own account.

4. Mr Ezekiel-Hart went about securing premises from which to conduct his legal business and ended his employment with the legal firm by whom he had been employed on, it appears, 12 September 2008.

5. On 12 September 2008, the Law Society wrote to Mr Ezekiel-Hart advising him that before it would issue him with an unrestricted practising certificate, he had to complete a practice management course. As a result, Mr Ezekiel-Hart was not able to commence legal practice on his own account on the date he had intended to do so. He was, however, ultimately issued with an unrestricted practising certificate from 1 July 2009.

6. By Originating Claim filed on 17 March 2009, Mr Ezekiel-Hart commenced proceedings, not these proceedings, against the Law Society and certain employees and an officer of the Society (the second, third and fourth defendants), claiming damages which he alleged flowed from the delay in issuing him with the unrestricted practising certificate. The defendants applied to strike out Mr Ezekiel-Hart's claim and sought summary judgment. On 31 August 2009, the learned Chief Justice made orders including entering judgment for the defendants on Mr Ezekiel-Hart's claim.

7. Mr Ezekiel-Hart appealed to the Court of Appeal against that judgment. On 19 March 2010, that appeal was dismissed: Ezekiel-Hart v Law Society of the Australian Capital Territory [2010] ACTCA 6; (2010) 173 ACTR 15. Mr Ezekiel-Hart then sought special leave to appeal to the High Court of Australia from the decision of the Court of Appeal. Special leave to appeal was refused on 29 September 2010: Ezekiel-Hart v Law Society of the Australian Capital Territory [2010] HCASL 210.

8. On 30 August 2011, Mr Ezekiel-Hart filed an application for orders setting aside the judgment of the learned Chief Justice striking out his Originating Claim and entering judgment. That application was dismissed by his Honour on 2 September 2011.

9. The defendants in these proceedings prepared a Bill of Costs for both the proceedings in the Supreme Court and in the Court of Appeal. Those costs were assessed by the Registrar in the sum of $55,564.76.

10. On 7 September 2011, Mr Ezekiel-Hart, by further Originating Claim, commenced these proceedings in this Court against the same defendants: the Law Society, the same two of its employees and the same, now former, officer.

11. The Originating Claim was delivered to the offices of a firm of solicitors and a Notice of Intention to Respond was filed by them on 16 September 2011. No defence was filed with the Notice. On 13 October 2011, default judgment for damages to be assessed was entered for Mr Ezekiel-Hart as the defendants had failed to file a defence.

12. On 3 November 2011, the defendants applied to set aside the default judgment and on 21 November 2011, the Registrar did so and permitted the defendants to defend the proceedings. The defendants then filed a defence on that day.

13. On 1 December 2011, Mr Ezekiel-Hart appealed against the Registrar's order.

14. Despite filing a defence, the defendants have now applied for the Originating Claim to be struck out, that the proceedings be dismissed under r 425(3) of the Court Procedures Rules 2006 (ACT), that the defendants be granted summary judgment under r 1147 of the Court Procedures Rules and costs.

15. Both the application and appeal came before me on 30-31 January 2012. After hearing submissions, I granted Mr Ezekiel-Hart leave to file further written submissions with leave to the defendants to respond and otherwise reserved my decision. Those further written submissions have been received and considered.

(1) the decision of the Registrar was in the interests of justice and should not be disturbed;

(2) the fresh proceedings disclose no cause of action and are vexatious, oppressive and embarrassing;

(3) the fresh proceedings are an abuse of process as they are so substantially identical to the earlier proceedings which have already been struck out; and

(4) in any event, the costs of the earlier proceedings have not been paid and any fresh proceedings must be stayed until those costs are paid.

17. Mr Ezekiel-Hart traverses each of these arguments. I shall deal with each in turn.

18. Under r 6256 of the Court Procedures Rules, a party may appeal against a decision of the Registrar. Sub-rule 6256(4) provides that such an appeal is a rehearing of the matter anew. This, it seems to me, is a modern formulation of what was formerly called a hearing de novo as described in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at 620.

19. A rehearing of the matter anew is a new determination of the liabilities and rights of the parties rather than a correction of errors in the determination of the court from which the appeal has been taken: Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 96. Thus, for example, the principles constraining an appellate court as established in House v The King [1936] HCA 40; (1936) 55 CLR 499 do not apply: Tobes v Fleet [2011] ACTSC 122 at [4].

20. Accordingly, I consider afresh the evidence before the Registrar and the evidence now before me in order to make a decision.

Was Mr Ezekiel-Hart entitled to enter default judgment?

21. The evidence included an affidavit of Michael James Phelps, solicitor for the defendants, sworn on 3 November 2011. From that affidavit, and from the material on the court file including the plaintiff's affidavit of service and in support of the application for default judgment, I find:

1. The Originating Claim with Statement of Claim attached was issued on 7 September 2011.

2. The Claim described the "address for service" of the defendants as the offices of Mr Phelps' firm. There is, of course, no address for service in a proceeding at a solicitor's office until a solicitor has been retained to act for the defendant. This is then formalised when a Notice of Intention to Respond is filed in a proceeding under r 101 of the Court Procedures Rules (an impossibility until at least the originating process has been issued by the Court). A solicitor may accept service under r 6464 but that is an act of the solicitor for the defendant, who must, of his or her own volition, accept such service; it cannot be forced by the plaintiff or his, her or its solicitor.

3. The Originating Claim was delivered to the office of Mr Phelps. It was given to a member of his staff. If this was intended as service on the defendants, it was irregular.

4. Nevertheless, on 16 September 2011, Mr Phelps caused a Notice of Intention to Respond to be filed. This had the effect of waiving any irregularity of service (as would the filing of an appearance under the Supreme Court Rules 1937 (ACT): Sheldon v Brown Bayley's Steelworks Ltd [1953] 2 QB 393 at 400, 401) and amount to a submission to the jurisdiction (Perkins v Williams (1900) 17 WN(NSW) 135 at 136): r 73 of the Court Procedures Rules.

6. On 13 October 2011, Mr Ezekiel-Hart applied for default judgment. He filed, as required under r 1119 of the Court Procedures Rules, an affidavit of service and also a statement in that affidavit as required by r 1122(3).

7. The affidavit of service stated that a sealed copy of the Originating Claim had been handed over to "the office assistant" at the offices of Mr Phelps' firm.

22. A question arises as to when service was effected. Delivery of the Originating Claim was clearly made on 7 September 2011. It was, however, not personal service. An originating process is required to be served personally: Court Procedures Rules

23. There is no evidence before me to show that there was, on 7 September 2011 or before that, any agreement by Mr Phelps to accept service. The affidavit of service did not attest that "the office assistant", who may or may not have had authority to accept service on behalf of Mr Phelps, said anything to suggest or state that service was then accepted. Where there has not been proper service of an originating process, r 73(2) of the Court Procedures Rules provides that the date of filing a Notice of Intention to Respond is taken to be the date of service.

24. Rule 6464(3) of the Court Procedures Rules provides that service is taken to have been effected under that rule when the solicitor accepts service of the document. In my view, that requires some conscious act on behalf of the solicitor to show that he or she has instructions to accept service, whether before or after delivery of the originating process. Mere receipt of the documents at his or her office is insufficient. That is so, even where, as here, the solicitor had acted in prior proceedings involving the same parties. There is no presumption that the solicitor will be retained for fresh proceedings even where the same parties are involved. There may, of course, be special circumstances that show, in a particular case, that a solicitor is so instructed. A statutory example is s 33 of the Court Procedures Act 2004 (ACT).

25. Accordingly, on the evidence before me, application of r 6464 or r 73(2) of the Court Procedures Rules leads me to the conclusion that service was taken to have been effected on 16 September 2011, when Mr Phelps filed a Notice of Intention to Respond. This may, of course, have been otherwise if there had been evidence of an arrangement whereby Mr Phelps had agreed to accept service by delivery of the Originating Claim at his office. There was no such evidence.

26. Under r 102, a defendant has 28 days within which to file a defence, whether included with the Notice of Intention to Respond or not. In this case, 28 days after 16 September 2011 is 14 October 2011, applying s 151(3) of the Legislation Act 2001 (ACT).

27. Thus, the defendants were not in default under r 1117 of the Court Procedures Rules until the end of the day on 14 October 2011 and so default judgment was not able to be applied for until 15 October 2011. As that was a Saturday, in practical terms, the earliest day on which default judgment could have been entered was on 17 October 2011, not as happened on 13 October 2011. It was, accordingly, entered irregularly. As McInerney J said in Gamble v Killingsworth [1970] VicRp 22; [1970] VR 161 at 168-9:

[I]f the judgment attacked is shown to have been irregularly obtained, as, for instance, if it is shown to have been entered prematurely or for too much, the defendant is entitled to have it set aside ex debito justitiæ and without terms - except as part of the condition of an order as to costs ...

See also Anlaby v Praetorius (1888) 20 QBD 764 at 768, 771; Alliance Acceptance Co Ltd v Makas (1976) 12 ACTR 19.

Should the default judgment have otherwise been set aside?

28. That is, of course, sufficient to dispose of the appeal. In deference to the arguments of counsel, however, I will briefly refer to the question of whether, as a matter of discretion, the default judgment should have been set aside.

29. The factors that are relevant to the exercise of the discretion are well-known. In Ryan v Adams (1993) 112 FLR 474 at 476, Miles CJ said of the relevant principles that "[a]s far as this Court is concerned, the most authoritative pronouncements are those of the Federal Court in Davies v Pagett [1986] FCA 106; (1986) 10 FCR 226." In that case, the Court noted that the trial judge had set out a summary of the principles from Lord Wright's speech in Evans v Bartlam [1937] AC 473 at 489 and then adopted the trial judge's summary of the relevant considerations as follows:

The length of delay between the time for delivery of defence and the date of interlocutory judgment. On this aspect the giving of notice of intention to apply for judgment may be a relevant factor.
The length of delay between the entering of such judgment and the application to set it aside.
The reasons for such delay. The defendant's own contribution to the delay, as contrasted with delay caused by his legal advisers, may fall for consideration.
The evidence as to whether or not the defendant may have a defence? The probability of a successful defence need not be demonstrated and the fact that the defendant's case may appear weak, will seldom be a bar.
Whether the plaintiff will be prejudiced by setting aside the judgment, the nature of the prejudice being such that it cannot adequately be compensated by an order for costs.

30. I add that the courts have given separate consideration to the giving of notice of the intention to apply for judgment. As Wallace J said in Pope v Aberdeen Transport Co Pty Ltd [1965] NSWR 1550 at 1551:

I think that where the party signing judgment does so without giving warning of its intention to do so, such party will generally, though perhaps not invariably, be in difficulties on a summons to set aside the judgment where a defence on the merits is disclosed.

31. This factor has also been adopted recently by the NSW Supreme Court in Commonwealth Bank of Australia v Wales [2012] NSWSC 407 at [24]. Indeed, such an approach has a long history for it was adopted by Hood J in Coburn v Brotchie [1890] VicLawRp 4; (1890) 16 VLR 6 at 7-8. See also Australian Musical Distributors Pty Ltd v Whebell [1969] QWN 40 and Cameron v King (Unreported, Supreme Court of Western Australia, Sanderson M, 2 March 1999).

32. Mr Phelps, in his affidavit supporting the application to set aside judgment, explained why a defence had not been entered in time. In effect, his evidence was that he was very busy at the time and was about to go on leave. He considered that the proceedings were an abuse of process and prepared a brief to counsel to prepare an application to strike out the proceedings. Due to what he described as "unforeseen intense pressure of other matters with the office during [his] absence on leave", the brief was not delivered until the default judgment had been entered.

33. There was, on the evidence, no suggestion that Mr Ezekiel-Hart had given notice of his intention to apply for judgment, even though he was well aware that solicitors were acting for the defendants.

34. When he returned from leave, Mr Phelps' attention was drawn to the default judgment and he set about drawing the defence in preparation for the application to set aside the judgment. This was further delayed because, he deposed:

My time since then has virtually been fully consumed by other proceedings in which I am representing the first named defendant, with insufficient time being able to be devoted until now to the drafting of a Defence to some 60 paragraphs contained in the Statement of Claim.

35. He candidly and appropriately accepted "that it is my fault entirely that Default Judgment has been able to be entered". The application itself was made on 3 November 2011, not very promptly, but without, in my judgment, culpable delay.

36. It is, of course, a counsel of perfection to say that if a practitioner is too busy to attend to proceedings and comply with the time limits in the Rules, he should make other arrangements. Nevertheless, it is an important matter that needs consideration. Even a letter to the plaintiff pointing out the difficulties, noting that the application was foreshadowed, confirming that the defendants have a good defence and seeking an indulgence would have done much to preserve the position of the defendants. An invitation in such a letter to provide a warning before judgment was entered would also strengthen the position of the defendants were judgment to be "snapped on" (see Cameron v King).

37. Nevertheless, I have perused the defence and note that it puts in issue a number of the factual allegations of the plaintiff not merely generally but specifically and certainly amounts to a defence on the merits. In the light of the foreshadowed application for which a brief had been prepared, it may have been appropriate for the pleading to have included a challenge to the whole of the Statement of Claim as an abuse of process.

38. I note that there was no material to suggest that the plaintiff would suffer unfair prejudice by the setting aside of the judgment.

39. I also note that, in Davies v Pagett, despite a delay of the proceedings of some

17 months, including nearly 11 months between the entry of judgment and the application to have it set aside, a delay described by the Court (at 231) as "gross and inexcusable", the Court did there set aside the judgment where there was a defence on the merits and there was an absence of prejudice.

40. Taking into account the absence of prejudice, the defendants being able reasonably to assert a defence on the merits, the absence of a warning about the entry of judgment and despite the default of the defendants' solicitor and the delay in making the application, I consider that it was appropriate, as a matter of discretion, that the judgment be set aside.

42. In these proceedings, Mr Ezekiel-Hart seeks damages under various heads, including "exemplary, aggravated and special damages", for alleged breaches of a duty of care owed by the defendants to him.

43. The allegations are wide-ranging, including an allegation of discrimination said to cause "disability to the applicant [sic], of the nature protected by s. 117 of The Commonwealth Constitution." It is by no means easy to understand the Statement of Claim, but, doing the best I can, it seems to allege the following claims.

44. Mr Ezekiel-Hart told the Law Society that he was proposing to commence legal practice on his own account and on 11 August 2008 applied for an unrestricted practising certificate to enable him to do so.

45. The Law Society acknowledged receipt of his application and stated:

If you decide to practise on your own account, the society will require confirmation of your own policy of professional indemnity insurance before issuing your practising certificate. There are two approved providers in ACT; LawCover and Gallagher Broking Services.

46. Mr Ezekiel-Hart assumed that this letter meant that he would be granted an unrestricted practising certificate and proceeded to rent offices and purchase office equipment. The Law Society, however, in its defence, noted that the letter also sought clarification of whether Mr Ezekiel-Hart was intending to continue as an employee of his current firm or to practise on his own account. There was, in any event, no date in the letter as to when any certificates would be granted.

47. I have no hesitation in saying that Mr Ezekiel-Hart was not entitled to assume from the Law Society's letter that he would be granted an unrestricted practising certificate and, in particular, when it would be granted. It simply could not be read that way. His reliance on it in that way was misconceived and actions taken by him as a result were at his own risk and the consequences are not to be visited on the Law Society.

48. Mr Ezekiel-Hart further says that the Law Society and other defendants were aware that he was to terminate his then current employment as an employed solicitor but the Law Society says in its Defence that it only knew of this on 12 September 2008, the day on which he had terminated that employment. Even had it known earlier, I am unable to see that it owed him any duty in that respect. It may have been quite generous to advise him that no certificate had, at that date, been granted and perhaps warn him of the consequences of that to his plans, but it could be no more than that.

49. I accept that the extent to which a person or other judicial entity may owe a duty of care is no fixed list: Mutual Life & Citizens' Assurance Co Ltd v Evatt (1968)

[1968] HCA 74; 122 CLR 556 at 566. It may be that, in appropriate circumstances, the advice by a practitioner that he or she is to terminate their employment may give rise to a duty of some kind.

50. In these circumstances, however, where Mr Ezekial-Hart has relied incorrectly and inappropriately on a letter from the Law Society and then unilaterally decided on a course of action of which he informed the Society, no duty of care arose. Thus, there can be no cause of action against the Law Society from the facts as so far pleaded.

51. The Law Society subsequently wrote to Mr Ezekiel-Hart requiring that, before it would issue an unrestricted practising certificate to him, he had to complete an approved course in legal practice management.

52. Mr Ezekiel-Hart further claims that there was a withholding of information from him but declines to condescend to any particularity. As a practitioner, seeking to show an entitlement to an unrestricted practising certificate, and thus "a level of professional skill ... that it is appropriate that an unrestricted practising certificate be issued to [him]" (Legal Profession Regulation 2007 (ACT) table 10 item 3(c)), Mr Ezekiel-Hart can be assumed to have understood the process established by the regulatory legislation, made appropriate inquiries himself of what he was required to do, all of which appears to be publicly available, and informed himself of any necessary obligations before taking the unilateral step of leaving his prior employment and seeking to establish his own business.

53. This seems to me to answer, were it necessary, the suggestion by Mr Ezekiel-Hart that his case came within the principles set out in Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180. It is simply not consistent with the facts to suggest that, even on the allegations in the Statement of Claim:

(a) there was in the Law Society or the other defendants a foresight of the likelihood of harm that Mr Ezekiel-Hart would suffer by its decision; or

(b) he was within a class of vulnerable persons who were unable to protect themselves from harm.

54. Mr Ezekiel-Hart referred to a number of other authorities. From none of them can I discern any principle or factual analogy that would require or entitle me to find that the Law Society had any duty in the circumstances alleged in the Statement of Claim:

(a) to grant Mr Ezekiel-Hart an unrestricted practising certificate before he terminated his employment; or

(b) to warn him of the possibility that it would not be granted.

55. In a leap of logic that cannot be sustained, Mr Ezekiel-Hart then alleged that this letter was used by the second, third and fourth defendants "as a vehicle [to close] the plaintiff [sic] business." The fact is that, without an unrestricted practising certificate, which had not been issued, Mr Ezekiel-Hart was apparently not entitled to open his business and nothing he has alleged in his Statement of Claim entitled him to do so.

56. There is simply no basis in the Statement of Claim for the allegation that the defendants were closing his business by the Law Society's decision. Even were it so, it is unlikely that such a decision would lead to any damages being recoverable: cf Northern Territory v Mengel (1995) 185 CLR 307; Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637 at 645.

57. The Law Society has a statutory obligation to consider applications for the issuance of an unrestricted practising certificate and it must do so in accordance with the Legal Profession Act and the Legal Profession Regulation.

58. If a decision is made not to issue such a certificate, that decision can be challenged by appeal to this Court under s 81 of the Legal Profession Act. It may be, as submitted by the defendants, that such a right of challenge denies Mr Ezekiel-Hart the kind of relief he seeks in these proceedings. There is certainly authority to support that proposition in Coffey v Secretary, Department of Social Security [1999] FCA 375; (1999) 86 FCR 434 at 443-4; [25]-[27].

59. I have examined the detail of the claims by Mr Ezekiel-Hart in deference to the arguments made at the hearing, but the biggest obstacle confronting his claim is in s 587A of the Legal Profession Act, which provides:

(1) A person is not civilly liable for anything done or omitted to be done honestly and without recklessness -

(a) in the exercise of a function under this Act; or

(b) in the reasonable belief that the act was in the exercise of a function under this Act.

(2) This section does not limit any other provision of this Act about protection of an entity from liability.

60. This clearly includes the second, third and fourth defendants insofar as they were acting under the Legal Profession Act, which it appears they were as they were processing the application by Mr Ezekiel-Hart for an unrestricted practising certificate. "Person" referred to in s 587A(1) must include a corporation, as provided for in s 160(1) of the Legislation Act. The Law Society, the first defendant, is made a corporation by s 576(2) of the Legal Profession Act; it is, therefore, also entitled to the protection of s 587A(1).

61. No allegation is made that the defendants were not acting in the exercise of a function under the Legal Profession Act. No allegation was made in the pleadings that any of the defendants acted dishonestly or recklessly. The nearest that any paragraph came to making such latter allegation is, perhaps, where Mr Ezekiel-Hart alleges that the second defendant "misrepresented facts and provided to the Executive at the time information in a report that never existed at the time he made his recommendation to the Executive." This is somewhat difficult to understand, but I assume it is "information" that is said "never existed", though that is not at all clear. This is, however, not an allegation of dishonesty or recklessness. More would need to be pleaded for such an allegation to be made.

62. It may also be inferred that "the allegation that the second, third and fourth defendants used the decision of the Law Society to close [Mr Ezekiel-Hart's] business" might impute dishonesty, but it is not so pleaded and the acts of those defendants may have been done for a quite proper purpose (though the defendants denied they did them at all). The pleading does not say it was dishonest or reckless.

63. Thus, section 587A of the Legal Profession Act is a complete answer to the claims Mr Ezekiel-Hart makes in his Statement of Claim.

64. In an attempt to circumvent this conclusion, Mr Ezekiel-Hart refers to other legislation, suggesting other claims. He refers to the Discrimination Act 1991 (ACT), the Commonwealth Constitution and the Human Rights Act 2004 (ACT). None of these provide any remedy for him as claimed or at all.

65. The reference to s 117 of the Constitution is entirely misconceived. The reference in that section to disability is completely different to the disability referred to in s 8 of the Discrimination Act. It simply does not arise here.

66. The Discrimination Act does not give Mr Ezekiel-Hart any remedy. Section 72 of that Act provides that the Act "does not give a person any right of action in relation to the doing of an act that is unlawful" under any conceivably relevant provision of the Act.

67. Finally, the s 40C(4) of the Human Rights Act provides that the Supreme Court may not make an award for damages in granting any relief under that Act.

68. There is, accordingly, no cause of action disclosed in the allegations leading up to and including the letter from the Law Society advising him that an unrestricted practising certificate would not be issued to him until he had completed the approved practice management course.

69. It is important to note that Mr Ezekiel-Hart does not claim that the requirement to complete such a course was either unlawful or inappropriate. To undertake such a course is, of course, a highly desirable obligation directed towards reducing the number of problems that, regrettably, the Law Society and the courts have to address with failings, defalcations and misconduct in the conduct of legal practice from time to time. It is a requirement that is to be supported by the courts.

70. Mr Ezekiel-Hart then made allegations that on or about 24 August 2008 the second defendant had "boasted" to him that he would "tell the Law Society not to issue [him] with an unrestricted practising certificate". This allegation is denied by the second defendant.

71. Assuming it is true, however, for the purposes of considering the application of the defendants to strike out the Statement of Claim (Niven v Grant (1903) 29 VLR 102 at 106), it seems to me that this does not disclose any cause of action that Mr Ezekiel-Hart could bring. There is no allegation that:

(a) the second defendant acted maliciously or improperly in advising the Law Society that an unrestricted practising certificate should not be granted to Mr Ezekiel-Hart;

(b) the Law Society was inappropriately influenced by any malicious or improper advice; or

72. Even were these to have been alleged, it seems to me that there is no right to damages for the reasons set out above (at [56] and [58]). See also [74] below. If the Law Society had been so influenced and made an improper decision, the appropriate response of Mr Ezekiel-Hart was to appeal the decision of the Law Society, a step he did not take.

73. Mr Ezekiel-Hart also alleges that the Law Society did not invite him to comment on or make any submissions to it before denying him the certificate. This may entitle him on the appeal under s 81 of the Legal Profession Act to have the decision set aside; I make no finding whether that would be a good ground to do so as I have heard no argument on it.

74. The point, however, is that such a failure does not entitle him to a claim for damages. In the light of the High Court overruling the decision of Beaudesert Shire Council v Smith [1966] HCA 49; (1966) 120 CLR 145 in Northern Territory v Mengel, it seems to me that any right to damages is currently unavailable for any such error. See also E I Sykes et al, General Principles of Administrative Law (Butterworths, 4th ed, 1997) at 427-9.

75. The Statement of Claim also makes an allegation about the Law Society elections for the 2008/2009 year. The pleading is entirely unclear as to whether any claim is made about that. No relief seems to be claimed for this matter. It is irrelevant and would otherwise be struck out.

76. Finally, so far as I can see, the only other matter alleged in the Statement of Claim is that the Law Society described Mr Ezekiel-Hart to members of the public as "not currently practising with an ACT firm". It is not clear whether Mr Ezekiel-Hart claims that this is defamatory of him, though the pleading comes close to making that claim, but does not actually do so. The difficulty for him, however, is that the claim is true. He had resigned from his previous employment, he could not practise on his own account until he had an unrestricted practising certificate and he was not otherwise employed. Indeed, that is the nub of his claim for damages. There is no cause of action maintainable arising out of this allegation.

77. Mr Ezekiel-Hart makes a number of other claims, referring to them with rhetorical flourish and exaggeration, reminiscent of many Statements of Claim filed by unqualified litigants, none of which sound in damages or, indeed, plead any recognisable or possible cause of action.

78. I am conscious that there is a high threshold that must be crossed before a Statement of Claim is struck out as disclosing no cause of action, as made clear in cases such as Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-30.

79. I am, however, comforted by what the learned President of the Court of Appeal said in Ezekiel-Hart v Law Society of the Australian Capital Territory (at 16; [6]) of the earlier Statement of Claim, which is strikingly similar to the Statement of Claim, both as to content, as I shall show below, and as to style:

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

80. I respectfully endorse those comments with which I entirely agree and consider that they apply accurately to the current Statement of Claim.

81. Not only does the drafting of the Statement of Claim reflect poorly on the legal ability of Mr Ezekiel-Hart, the oral and written submissions he made did not disclose such an understanding of the law or of advocacy as would be expected in the holder of an unrestricted practising certificate. The submissions were replete with irrelevant material and citations from authority taken out of context or unsupportive of any relevant proposition.

82. The Statement of Claim must be struck out as disclosing no cause of action.

83. Often a court which strikes out a Statement of Claim, even on the basis that no cause of action is disclosed in it, will permit the plaintiff to replead.

84. In this case, I find it difficult to see that Mr Ezekiel-Hart could formulate a cause or causes of action from the facts of this case and that would militate strongly against any such permission.

85. There is, however, an even stronger reason for not granting such permission. This Statement of Claim, it is claimed by the defendants, seeks to plead claims which have already been decided in the previous proceedings which have been decided adversely to Mr Ezekiel-Hart as referred to above (at [6]-[8]).

86. In general, there are three ways in which the previous proceedings could be regarded as preventing these proceedings properly being prosecuted and therefore liable to be struck out as an abuse of process - if the previous proceedings had created a res judicata or, secondly, an issue estoppel or, thirdly, if the processes of the Court were being used to inflict injustice or unfairness such as where the continuance of the proceedings are unjustifiably vexatious or oppressive because they seek to litigate proceedings anew. I shall deal with each of these in turn.

87. The doctrine of res judicata provides that a decision of a court of competent jurisdiction is binding between the parties to it and the same claim cannot be raised between them (or their privies), including all matters of fact and law which the prior decision established as the legal conclusion of the court: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531-2. The right or cause of action has merged in the judgment and no longer has an independent existence: see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 597.

88. The doctrine only applies where there is an identity of the parties to the two proceedings: Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 at 276. They must also be suing or being sued in the same right or capacity: Leggott v Great Northern Railway Co (1876) 1 QB 599; Manton v Cantwell [1920] AC 781 at 788. In this case, all the parties are the same and suing or being sued in the same capacity.

89. The judgment of the learned Chief Justice in this case, as referred to above (at [6]), was, in a sense, a judgment in default. That is to say, the hearing of the strike out application of the defendants commenced on 21 August 2009 when Mr Ezekiel-Hart was present and when materials were handed up to his Honour. His Honour became part-heard but the matter was adjourned. When the matter was called on again, Mr Ezekiel-Hart did not attend, and there was a suggestion that he was unwell. The Court adjourned briefly to permit a medical certificate or other evidence of illness to be produced but, when none was, the proceedings continued ex parte and the learned Chief Justice dismissed the proceedings as disclosing no cause of action and entered judgment against Mr Ezekiel-Hart.

90. Regrettably, I have not had the benefit of his Honour's reasons but while the decision was ultimately made in the absence of Mr Ezekiel-Hart, it is clear that his Honour heard argument, had comprehensive submissions and made a decision on the merits.

91. I have, however, gone further and compared the two Statements of Claim. There are striking similarities. The first seven paragraphs are identical in both. The earlier Statement of Claim next includes some paragraphs which do not seem to me to be material, but excluding those, the following six paragraphs are also relevantly identical in the two pleadings, except that, for some reason, unlike in the current proceedings, the second defendant in the earlier proceedings is not alleged to have been aware when Mr Ezekiel-Hart was ending his prior employment and the third defendant in the earlier proceedings was not said to be using the first defendant "as a vehicle" to close Mr Ezekiel-Hart's business.

92. The earlier Statement of Claim then pleaded in eight paragraphs different matters that have also not been reproduced in the current Statement of Claim but relating to claims that requirements concerning the practice management course were unreasonable, there was an unreasonable decision not to issue the unrestricted practising certificate and that the decision not to do so had been withheld until Mr Ezekiel-Hart had left his paid employment. These are not re-pleaded in the current Statement of Claim.

93. There are then some prayers for relief in the current Statement of Claim which are replicated elsewhere in the earlier Statement of Claim and then the next four paragraphs are relevantly identical in both documents.

94. Thereafter, the two Statements of Claim diverge. The earlier one sets out seven paragraphs under the heading "Further particulars of omissions constituting negligence on the part of the 2nd defendant". As particulars they cannot be said to make the two pleadings relevantly different.

95. In any event, the first of these raised the same issue about the Law Society stating that Mr Ezekiel-Hart was "not currently practising with an ACT firm" and so raised no new issue.

96. The balance of the earlier Statement of Claim raised other issues - complaints about the marks he had received in the practice management course and an issue about the 2008/2009 election. These have not been sought to be re-litigated in the current proceedings and can be ignored for present purposes.

97. In the current Statement of Claim, paragraphs [21]-[60] do not repeat any allegations made in the earlier Statement of Claim. They are, however, for the most part evidence rather than material facts, apart from allegations of breach of procedural fairness and an alleged misrepresentation by the second defendant to the Executive of the Law Society. I have dealt with the first above (at [73]-[74]) and the second above (at [70]-[71]). Both would be a matter for any appeal and not provide, in my view, any right of action by Mr Ezekiel-Hart.

98. The upshot of this analysis is that, so far as the claim and cause or causes of action for damages for "[d]etriment and losses suffered from acts and omissions of the defendants" (as set out as the nature of the claim in the Originating Claim), the pleaded causes of action in the current proceedings are identical to those in the earlier proceedings, even to the use of many identical paragraphs. Thus, the identity of claims for the application of the doctrine of res judicata is met.

99. The decision of the learned Chief Justice, however, was not a final decision; it was interlocutory: Ezekiel-Hart v Law Society of the Australian Capital Territory at

18; [19]. This would appear to mean that the principle of res judicata may not be available: Midland Bank Trust Co Ltd v Green [1980] CR 590 at 607, where the second edition of A K Turner, The Doctrine of Res Judicata (Butterworths, 1968) was cited with approval, including a requirement that the decision be final and decided on the merits.

100. It may be, therefore, that the technical requirements of res judicata have not been met.

101. The question is not free of doubt at least to the extent of its application. A default judgment, though liable to be set aside, is still final, at least for the purposes of the doctrine of res judicata: Hoong v Leung Cheong Kweng Mines Ltd [1964] AC 993 at 1010. It must, however, be strictly construed as to what it decided: New Brunswick Railway Co v British and French Trust Corporation Ltd [1939] AC 1 at 21, 37.

102. The reasons of the learned Chief Justice for the decision of 31 August 2009 was not put before me; indeed, I did not have a copy of the order made though I did have the associate's notes of the orders, sometimes referred to as "the bench sheet". His Honour struck out the Statement of Claim and entered judgment though whether under r 425(3) of the Court Procedures Rules or summary judgment it is not clear. In Ezekiel-Hart v Law Society of the Australian Capital Territory, the High Court (at [1]) described what his Honour did as making "[o]rders ex parte striking out the applicant's originating claim pursuant to r 425 of the Court Procedures Rules (ACT) ('the Rules')," the same conclusion to which the learned President of the Court of Appeal had come to in the Court of Appeal (at [10]).

103. The High Court considered (at [5]) that there was "insufficient reason to doubt the correctness" of the decision of the learned President of the Court of Appeal which, of course, included necessarily a finding that the decision of his Honour was interlocutory. It was not a final decision.

104. While unclear, I have a real doubt as to whether the doctrine of res judicata applies in these circumstances.

105. The doctrine of issue estoppel is somewhat different, though clearly having the same policy underpinning and general effect as the doctrine of res judicata. The doctrine provides that a party may not plead a matter of fact or rely on a matter of law which, though not actually decided by an earlier decision, was a necessary step or ingredient in the cause of action, has by virtue of the earlier decision been already decided by the earlier decision.

106. The difference between the doctrines was explained by Dixon J in Blair v Curran (at 532) as follows:

Ezekiel-Hart v Law Society of the Australian Capital Territory, Reis, King and Barnett [2012] ACTSC 103

At a glance

Court

Decision date

Source

Judgment (247 paragraphs)

Ezekiel-Hart v Law Society of the Australian Capital Territory, Reis, King and Barnett [2012] ACTSC 103 (29 June 2012)

Parties

Legislation Cited (16)

Cases Cited (26)