Ezekiel-Hart v Reis

2. Matter SCA 75/17 is an application for leave to appeal from the decision of an Acting Presidential Member of the ACT Civil and Administrative Tribunal (ACAT) dismissing an appeal from a Senior Member of the Tribunal (see Ezekiel-Hart v Reis & Anor (Appeal) [2017] ACAT 76 (ACAT appeal decision)). The Senior Member had dismissed the plaintiff's claim for relief against the first and second defendants under the Discrimination Act 1991 (ACT) (Discrimination Act) (see Ezekiel-Hart v Reis & Anor [2017] ACAT 3 (ACAT decision at first instance)).

3. After hearing both matters I reserved my decision in each. These are my reasons for decision in SCA 75/17.

4. The power to grant leave to appeal is contained in s 86 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act) which relevantly provides:

1. Appeals to the Supreme Court
   • (1) A party to an application, other than an application mentioned in subsection (2), for an appeal may appeal to the Supreme Court on a question of fact or law from either -
     • (a) one of the following:
       • (i) a decision of the appeal tribunal;
   • (2) However, the appeal may be brought only with the Supreme Court's leave.

5. The approach to be taken in assessing an application for leave was recently summarised by Associate Justice McWilliam in Bailey v Bottrill [2019] ACTSC 45 at [7] - [8] as follows:

The discretion to grant leave conferred by s 86 of the ACAT Act is broad, and not susceptible to exhaustive definition: Wiser v Havelock Housing Assn Inc [2014] ACTSC 138 per Burns J at [3]. A number of cases have set out the principles to guide the Court in the exercise of its discretion, they include: Pires v DibbsBarker Canberra Pty Ltd [2014] ACTSC 283 at [48]; and, Wsol v John James Memorial Hospital [2015] ACTSC 378 at [9]. These cases draw upon Victorian authorities where a similar statutory regime exists for appeals from the Victorian Civil and Administrative Tribunal. These cases include: Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-7; and, Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 at [28].

The following principles emerge from those authorities to assist the Court in its task:

a. The need for leave is to reduce the number of appeals and provide a filter so that only those of some substance or where there is a miscarriage of justice should be able to be heard, though the test should be applied "in a liberal manner, and not begrudgingly": Perry v Smith [1901] ArgusLawRp 51; (1901) 27 VLR 66 at 68;

b. Whether leave should be granted or not must depend upon the justice of the case.

c. The application for leave must identify the question, of fact or law, which the applicant for leave claims arises and which is important to the substantive appeal succeeding or failing.

d. The applicant need not show error - that is for the appeal itself - but must show that there is a real or significant argument to be put that error exists.

e. Where a question has been identified which bears directly on the relief which will be sought on the appeal and once it has been shown that there is sufficient doubt attending the question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in effect.

f. The public importance of any question of fact or law is relevant but not decisive as to the question of whether leave to appeal should be granted.

g. It may be relevant to show that the error, if uncorrected, would impose substantial hardship.

6. The applicant filed an affidavit affirmed on 18 October 2017 and a draft notice of appeal in support of his application. Under sub-r 5071(2) of the Court Procedure Rules 2006 (ACT) the affidavit should have identified the nature of the appeal and the questions relied-upon by the applicant. Ordinarily those questions would also be reflected in the proposed grounds of appeal. Unfortunately the 196 page affidavit does not contain a coherent statement of either the nature of the appeal or the questions involved. Rather, it contains extracts of evidence, submissions (including references to and extracts from various authorities) and matters of argument. Consequently, I found the document difficult to comprehend.

7. At [772] - [844] of the applicant's affidavit he poses a large number of "questions" to which he also provides his own answers. By way of example, the first of these is:

Questions involved

Whether it was open to the Tribunal to select the arm of section 8 of the Discrimination Act 1991 that it wish [sic] to make finding such that it will decide to make finding about 'direct discrimination "in exclusion of "indirect discrimination" arising from the same facts and circumstances despite the Appellant affirming that his Application was for direct and indirect discrimination? NO

8. While the applicant is self-represented he is also a trained lawyer who has practised for some years as a solicitor. It is most unfortunate that he has not been able to provide a concise summary identifying a question or questions of fact or law arising from the appeal decision of the Tribunal. The draft notice of appeal does not assist. It pleads nearly 80 grounds of appeal which again blur the distinction between argument and the identification of errors of fact or law. By way of example, ground 1 was pleaded as follows:

1. The Decision goes against the weight of evidence before the Tribunal such that the Tribunal misapprehended and misapplied the case laws; as detailed in the affidavit attached

9. The applicant filed on 30 April 2019 written submissions in reply to those of the respondents. Those submissions suffer from the same defects as the affidavit and the draft notice of appeal. The applicant's oral submissions on 11 July 2019 did nothing to clarify the basis of his appeal.

10. Doing the best I can from this material, I understand the essence of the applicant's complaint, in question form, to be as follows: did the Appeal Tribunal err in concluding that there was no basis to set aside the conclusions of the Tribunal at first instance that neither the exclusion of the applicant from the second respondent's premises nor the refusal of his practising certificate application was the result of discrimination on the grounds of race or political conviction?

Tribunal Findings at First Instance and on Appeal

11. The applicant's discrimination claim under the Discrimination Act relates firstly to events on 23 February 2016 when, according to the applicant, he was ejected from part of the second defendant's premises pursuant to an oral directive from the first defendant and thereafter excluded from that part of the premises.

12. The second claim made by the applicant relates to the handling of his application for a practising certificate and the refusal of that claim. For convenience I will adopt the descriptions used by the Appeal Tribunal of the first of these claims as "the access to premises claim" and the second as "the practising certificate claim".

13. There was a factual dispute as to the circumstances of the access to premises claim. The contending evidence was summarised by the Tribunal at first instance at [33] to [38] of the Senior Member's reasons for her decision. The Senior Member preferred the evidence of the witnesses called in the respondents' case to the evidence of the applicant and some others to whom he complained shortly after the event (see [72]). It is important to note that this finding was made on the basis of evidence given by the key witnesses orally, including in cross-examination.

14. It was on the basis of that assessment that the Senior Member found that there was no "unfavourable treatment" of the applicant in the events of 23 February 2016.[1] The Senior Member went on to hold that even if there was such treatment it was not motivated by the applicant's race or political conviction (see [73]-[75]). In reaching this conclusion she plainly accepted the first respondent's evidence as to his reason for requesting that the applicant not be permitted into the secure area of the premises.

15. As to the practising certificate claim, the Senior Member accepted that the refusal amounted to unfavourable treatment (see [39]). The applicant had argued that reference to events in the past between himself and the respondents led to the inference that the refusal was due to his race or political convictions (see [41]-[50]).

16. The Senior Member accepted that such an inference could be legitimately drawn in an appropriate case (see [77]), however, she did not see this as such a case for the reasons she explained at [78]-[82]. Indeed at [81] the Tribunal concluded that there were coherent reasons for the second respondent's conduct which had nothing to do with discrimination in the relevant sense.[2]

17. I also note that the Senior Member found the applicant not to have been an entirely satisfactory advocate in his own cause (see [83]-[84]).

18. The Tribunal at first instance found that the practising certificate claim should fail on the basis of a complete absence of evidence that the refusal was motivated by the applicant's race or political conviction (see [82]).

19. The applicant appealed from the Senior Member's decision by notice of appeal dated 15 February 2017. The notice of appeal was 65 pages long. Acting Presidential Member Orr QC, who heard the appeal, noted that it was "...difficult to discern the specific bases of the appeal" (at [10]).

20. A directions hearing was held on 22 February 2017 where it was ordered that the appeal should be dealt with as a review of the original decision under s 82 of the ACAT Act. Because of the difficulties in comprehending the original notice of appeal the applicant was ordered to file and serve a document setting out the reasons for appeal by reference to paragraphs of the decision appealed against, identifying the alleged errors of fact or law. He filed a document pursuant to that direction on 8 March 2017. That document was 82 pages long and suffered from the same defects as the original notice of appeal (see [11] of the ACAT appeal decision).

21. The respondents then applied to strike out the appeal on a summary basis under s 32 of the ACAT Act. That application was unsuccessful but resulted in a direction that the applicant file a further document clarifying the basis for his appeal, which was to be no more than 20 pages long. On 5 May 2017 the applicant filed a further appeal document which was 29 pages long. The Appeal Tribunal relied on this document as the basis for his application, being the shortest and most comprehensible of those filed (see [13] of the ACAT appeal decision). It is apparent that the applicant also filed further documents by way of submission and a large list of authorities. The respondents filed a further application for summary dismissal. However that was returnable on the date appointed for the substantive hearing and the Appeal Tribunal decided to determine the matter on a substantive rather than summary basis.

22. The Appeal Tribunal dealt generally with the submissions of the applicant at paragraphs [27] to [36] of the decision. In summary, the Acting President pointed to a number of underlying issues with the applicant's application, including:

(a) his failure to show some factual or legal error;

(b) the difficulties he faced in challenging the original Tribunal's assessment of the evidence of witnesses (there being no additional evidence presented in the appeal);

(c) his misconceived reliance on indirect discrimination (that not having been part of his case at first instance);

(d) his pursuit of the contention that racial discrimination must have occurred because there was "no other reason for such inequitable treatment";

(e) his decision to focus on a sequence of earlier interactions with the respondents in respect of which he was unable to point to any cogent evidence of racism; and,

(f) the fact that the applicant could not seek to challenge earlier court decisions in the pursuit of his appeal and the inappropriateness of grounds of appeal which merely referred to a case and asserted, without more, that the tribunal proceeding was inconsistent with it.

23 In relation to the access to premises claim, the Acting Presidential Member indicated that the Senior Member might have been in error in concluding that the exclusion was not unfavourable treatment (see [38]). However, this finding did not assist the applicant because, as the Acting Presidential Member pointed out at [39]-[40], the applicant provided no basis for overturning the first instance decision that the first respondent's directive was not based on the applicant's race or political conviction.

24. As to the practising certificate claim, the Appeal Tribunal accepted that the applicant might have an argument that he was not afforded procedural fairness in the events leading to the 21 March 2016 decision to refuse his application (see [46] and [55]). However, having examined the applicant's arguments relating to the issues of his bankruptcy, the draft disciplinary application, the failure of the second defendant to offer him a conditional practising certificate and the passage of time since the events recorded in the disciplinary application, the Appeal Tribunal concluded:

[59] But this is not enough to succeed in this appeal. First, Mr Ezekiel-Hart must show that that [sic] the practicing certificate decision was the result of discrimination on the grounds of race or political conviction. The original tribunal found that it was not. It was stated at [81]:

The Tribunal finds that there were coherent well-evidenced reasons presented by the respondent (see paragraphs 58 to 62) about why the Law Society did not approve the applicant's application, had acted in certain ways, for example, made the 2013 complaint against the applicant and not finalised it, and pursued his bankruptcy. It is true that the 2013 complaint and the bankruptcy involved some exercise of discretion by the second respondent. However this does not mean the second respondent was discriminatory. If the decision not to approve the applicant's 2016 application for a practicing certificate is an improper decision because it in part relies on the 2013 complaint against him, this does not mean the decision is discriminatory.

[60] Mr Ezekiel-Hart argued that not only were the failures to accord him procedural fairness, but that these were motivated by racial or political conviction discrimination. But the original tribunal found there was no evidence to support this contention. No convincing basis for overturning this view was presented in this appeal tribunal.

25. The Acting Presidential Member also noted at [66] the claim by the applicant that the exclusion from the premises and the refusal of the practising certificate were caused by the applicant's complaint to government, and his pursuit of court proceedings against the respondents. The Senior Member rejected that claim and accordingly found no basis for asserted victimisation under s 68 of the Discrimination Act. The Appeal Tribunal found no ground for overturning that decision. Similarly, it saw no ground for a claim of vilification under s 67A of the Discrimination Act, given that the Senior Member had preferred the evidence of the respondents (see [88] of the first instance Tribunal decision).

26. As noted by the Associate Justice in the extract at [5] above, it is not necessary for the purposes of the leave application for the applicant to demonstrate actual error on the part of the Tribunal appealed from. However, he must be able to put a real or significant argument that such an error exists so that this Court should have doubt as to the correctness of the Tribunal's decision.

27. Unfortunately, so far as I can understand his submissions, the applicant seems to have repeated the various arguments which were unsuccessful at first instance, and again on appeal. The applicant has not demonstrated that any part of the Appeal Tribunal's decision errs by reference to the facts as found by the Tribunal at first instance having regard to the evidence on which those facts were found. Nor has he demonstrated any error in legal reasoning by the Appeal Tribunal. Having read the evidence before the Tribunal at first instance, the decision of that Tribunal and the carefully reasoned decision of the Appeal Tribunal, I am not persuaded that there is sufficient doubt as to the correctness of the latter to justify the grant of leave.

28. Accordingly, the orders of the Court are as follows:

(1) The application for leave to appeal is dismissed.

(2) The applicant is to pay the respondents' costs of the application.

I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe.

[1] Sub-s 8(2) of the Discrimination Act provides: 'For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.'

[2] See paragraph [24] of these reasons where paragraph [81] is extracted as part of the reasons of the Appeal Tribunal.