Ezekiel-Hart v The Council of the Law Society of the ACT

1. This judgment concerns various applications made by the plaintiff via email to my associates copied to the parties and sent after I gave an ex tempore judgment on 31 July 2023: see Ezekiel-Hart v The Council of the Law Society of the ACT (No 2) [2023] ACTSC 207.

2. Although not obliged to do so (see Ezekiel-Hart v The Council of the Law Society of the ACT (No 5) [2023] ACTSC 218 at [30]-[38]) I have in this instance treated those emails as an application for an adjournment of the applications specially fixed for hearing before me today and an application that I recuse myself.

3. This judgment assumes familiarity with the contents of that judgment.

4. The evidence, the subject of this judgment, was a series of emails and responses predominantly but not wholly between Mr Ezekiel-Hart and my associates. They have been collectively marked Exhibit A in relation to the applications the subject of this judgment and are described below.

Background

5. After giving judgment in Ezekiel-Hart (No 2), Mr Ezekiel-Hart emailed my associates on 1 August 2023 at 10.53pm. Amongst other things, Mr Ezekiel-Hart said: Dear Registrar and Officer in Charge, Withdrawal and discontinuing of my claim SC139/23 due to oppression and detriments and lack of protection from relevant authority including prejudgment and conduct aimed to kill me by the second defendant using the first defendant ... I have from date 1 August 2023 discontinue SC139/23, the court, Curtin AJ refused to allow the defendants give me documents in their possession, though the defendants told his Honour to refuse the subpoena but make order for some documents to be produced. I cannot concentrate with the tribunal matter on foot, so I have discontinued this matter to fight the persecution in the tribunal.

6. On 2 August at 9.14am, my associates emailed the plaintiff and the parties and said: … His Honour draws the attention of the parties to Jorgensen v Wilson (No 2) [2023] ACTSC 40 at [17]. His Honour has made the following orders in Chambers: 1. Order that the application by the plaintiff to discontinue the proceedings made by email dated 1 August 2023 at 10.53 pm is dismissed. 2. Order that the plaintiff is not entitled to discontinue the proceedings without leave of the Court. 3. Order that the plaintiff is granted leave to file and serve any application in proceedings to discontinue the proceedings on or before noon on 4 August 2023, such application being returnable on 7 August 2023.

7. Order that any evidence relied on by the plaintiff in support of that application is to be filed and served on or before noon on 4 August 2023. …

8. On 2 August 2023 at 1.48pm, the plaintiff emailed my associates and the other parties and said: … I am unwell, I am unable to work under the pressure that you are putting me for the benefit of the defendant. You have closed your mind to reality and appear as advocate of the defendants. All you want to do is to be the one who takes credit and favour that you declared me vexatious for the defendants. If you do not want to accept that I have discontinued the claim, you can adjourn the matter till when I recover my health. I will not die because you have the intentions to do what the defendants wanted from you, to enable them kill me using the lies of [RR]. Since you do not want to see the lies, I need to recover before anything else. You are so biased that even if I tell you good morning you will see it as offence. I do not want to be before you anymore in this discontinued matter certainly not now that I am unwell. If you must continue with the discontinued matter don't put undue stress and pressure on me, I am unwell. You can adjourn the matter to October let me have time to seek legal advice and you must be fair to order that [RR] attend for cross examination in the date in October if you intend to be fair and just. I have taken enough provocation for 15 years. I have discontinued the matter if you want to do what you are assigned to do set the hearing in October I cannot be running persecution in the Tribunal and this matter at the same time. Please show fairness you are in public office, it important that the public see that I have appropriate opportunity to amend my claim or have reasonable time to do anything. The current time is not reasonable given the time used in preparing for the persecution in the Tribunal. I have discontinued the matter, if you want it on, give me enough time in October and bring [RR], the man who always lie and mislead court for cross examination. …

9. On 2 August at 4.34pm, my associates replied to Mr Ezekiel-Hart and copied to the parties and said: … HH makes the following orders in chambers: 1. The applications by the plaintiff made by email dated 2 August 2023 at 1:48pm are dismissed. 2. The plaintiff is granted leave to file and serve any application in proceedings (referred to in the email identified in order 1 above) on or before noon 4 August 2023, such application being returnable on 7 August 2023. 3. Any evidence relied on by the plaintiff in support of the application in proceedings are to be filed and served on or before noon 4 August 2023. …

10. No applications or evidence were filed by the plaintiff pursuant to the orders made in either of the emails sent from chambers as set out above. I also note in relation to the assertion that Mr Ezekiel-Hart was unwell, that no details were provided of that claimed ill health including the nature and extent of any ill health, nor any details as to when it began to be experienced. There was no medical evidence provided in support of that allegation.

11. In Bobolas v Waverley Council [2016] NSWCA 139, McColl JA, with whom Simpson JA and Sackville AJA agreed, made observations in relation to medical evidence required, as a matter of generality, in support of adjournment applications based on ill health. Their Honours said at [220]-[222]: [220] In my view, Pain J’s rejection of the appellants’ medical certificates as having no probative value was unexceptionable. As Ward JA pointed out in earlier proceedings involving the appellants where they appear to have relied upon medical “certificates” in similar form: “[68] The medical certificates tendered by the applicants … are in such general terms as to deprive them of any real weight. Leaving aside the fact that the identity of the doctor is redacted (which would have made it difficult for the doctors’ opinion to have been tested had the Council sought to have challenged any adjournment application based on the certificates), and leaving aside discrepancies in the dates of those certificates, the certificates are in very vague terms. [69] Young J, as his Honour then was, noted in Forster v Harvey [2006] NSWSC 1112, a party whose case is delayed by a medical certificate from the other side should have the opportunity of cross-examining the doctor concerned. His Honour observed that ‘unfortunately medical certificates appear to be very easily obtained’ and that it was ‘quite useless’ for a person in effect to enclose a ‘common form medical certificate containing a very vague assertion as to the disability and not turn up herself and/or make the doctor available for cross-examination’. Although that was a case in which there had been various delays based on such certificates, his Honour’s comments indicate why little weight can be placed on an untested medical certificate of the kind now tendered by the applicants.” [221] A medical certificate relied upon to demonstrate a litigant is unable to attend court must address the “critical question whether, and if so why, the medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a court hearing.” (citations omitted)

12. Of course, the descriptors “general terms”, “vague”, “vague assertions as to the disability” and the “critical question” to be addressed apply just as much to claims of ill health by a litigant as they do to any medical certificates tendered by the litigant.

13. In relation to the plaintiff's claim of bias set out in his email of 2 August 2023, it is unclear whether the allegation is of actual or apprehended bias. Other than expressing dissatisfaction with my judgment in Ezekiel-Hart (No 2), no further particulars were given in relation to the allegations of bias (of either description).

14. If the application is in relation to apprehended bias, the relevant test was set out in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63. The relevant test was set out by Gleeson CJ and McHugh, Gummow and Hayne JJ at 6 wherein their Honours said at [6]: [6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. … (citations omitted)

15. Other than the bald assertion of bias no other submissions or evidence were provided by the plaintiff to support the assertion. Nor did he file any application in proceedings for the seeking of any relief in relation to that allegation.

16. On 3 August 2023 at 5.25pm the plaintiff provided my chambers with a copy of an unsealed application for leave to appeal from my judgment in Ezekiel-Hart (No 2).

17. Rule 5301 of the Court Procedures Rules 2006 (ACT) says: 5301 Appeals to Court of Appeal—stay and reinstatement (1) An appeal to the Court of Appeal in a civil proceeding does not operate as a stay of the order appealed from unless— (a) a territory law provides otherwise; or

Note A territory law includes these rules (see Legislation Act, s 98). (b) the Court of Appeal or the court otherwise orders.

Note 1 Pt 6.2 (Applications in proceedings) applies to an application for a stay or for an order under this rule. Note 2 An appeal to the Court of Appeal in a criminal proceeding does not operate as a stay of the conviction appealed from. (2) In an urgent case, an application to the Court of Appeal or the court for a stay may be made without serving it on anyone. (3) If the application to the Court of Appeal or the court for a stay is made without serving it on anyone, the application must be accompanied by an affidavit setting out the grounds relied on in support of the claim of urgency. (4) If the order appealed from is stayed by the Court of Appeal or the court, the Court of Appeal or the court may make any order that it considers necessary or desirable to give effect to the stay. (5) The Court of Appeal may, by order, amend or set aside an order made by the court or it under this rule. (6) The court may, by order, amend or set aside an order made by it under this rule. (7) An application for an order of the Court of Appeal for a stay may be made whether or not a similar application has been made to the court. (8) If any step has been taken for the enforcement of an order and the Court of Appeal amends or sets aside the order on appeal under this part, the Court of Appeal may make the orders for reinstatement it considers appropriate.

17. There is no specific rule of which I am aware which applies in terms to applications for leave to appeal but suffice to say that the mere filing of an application for leave to appeal does not, without more, operate to stay proceedings.

18. On 4 August 2023, at 5.13pm, the plaintiff emailed my associates and the parties and said: … Please note the Court has set 16 August 2023 at 9.30am for hearing of the appeal which I served you previously with unsealed copy. I had provided sealed hard copy to each of your offices, … and at the office box of the ACT Government solicitor. I remind you once again there is appeal relating to the documents, you should know better that you cannot proceed with applications when appeal is on foot in relation to documents that may be used for the application. I did not put the date, it is court's date. …

19. On 4 August at 5.22pm my associates replied to the plaintiff and the parties and said: … His Honour refers to Mr Ezekiel-Hart’s email below. His Honour confirms that the applications listed for hearing on Monday, 7 August 2023 will proceed on that day. Mr Ezekiel-Hart may make an application for adjournment on Monday if he wishes to do so. …

20. On 4 August 2023 at 6.14pm, the plaintiff emailed my associates and the parties and said: ADJOURNMENT Your Honour, Good evening, this is to notify you that the Court of Appeals, a superior Court had decided to hear appeal in relation to your decision made on 31 July 2023 on evidence that would be needed in relation to any application, including witness and injunction. The Superior Court has set 16 August 2023 at 9.30am to hear my appeal against your honour's decision. Arising from the above and noting that the defendants are filing documents today, and with toothache the reasonable thing is that I inform your honour of the situation for your honour to adjourn the matter in chamber pending the decision of the appeal court. I am going to see a doctor on Monday and will not be available, and I strongly believe that the court of appeals will grant me the documents and evidence I need for the matter and any future applications. I believe it will be unreasonable for the parties to incur any on Monday in light of these information, and I believe the appropriate thing is for your honour to adjourn the matter in chamber to avoid cost on Monday. …

21. I should note no application has been made by the plaintiff for a stay of proceedings as a result of Mr Ezekiel-Hart filing the application for leave to appeal.

22. The last-mentioned email from the plaintiff was received after close of business hours of the Court and so was not responded to until 7 August 2023 at 8.33am when my associates replied to the plaintiff and the parties as follows: … His Honour refers to the email of Mr Ezekiel-Hart sent at 6.14 pm on 4 August 2023. Insofar as that email amounts to an application for an adjournment, the application is refused. Mr Ezekiel-Hart may renew his application for an adjournment at 10 am today should he wish to do so. Any evidence in support of the application is to be filed and served by 10 am today, 7 August 2023. …

23. In the interim, on 4 August 2023 at 8.57pm, the plaintiff emailed the parties (but not my associates) and said: What is happening now is treating appellate court and temple of justice with disdain. You all know the nature of the hierarchy of Court in the ACT. You all also know that the appeal on foot directly affect any application whatsoever that anyone want to make. A judge depends on you as a lawyer and senior lawyers to be guided, not you depend on judge. It is your duty to inform the Court that Appeal Court has taken over and the decision of the Appeal court affects fully the conduct of your application and the matter should be adjourned pending Court of appeals decision. The reason that I am taking time to draw your attention is when this matter may become a subject of complain to the appellate Court and regulatory body as to how you ignored informing his honour that his hands are tied till Court of Appeals makes decision whether or not I will have witness and document to respond to your applications. Do not say, I did not inform you and draw your attention to likely complaint to the Chief Justice and the Attorney-General. Apply your legal wisdom and protect your reputation, power and authority is transient of [RR] that you are fighting his vendetta against Black lawyers will not be professional standard director forever. He has stayed there for over 10 years, and according to African adage when you sit on a seat for a long time it will smell. I will not be in Court on Monday, I am waiting a Superior Court to answer my prayers. To be fore warned is to be fore armed, they say. I will not pay your cost of stubbornly going to Court on Monday in defiance to the direction of the Court of Appeal …

24. On 6 August 2023 at 9.11pm, the solicitor for the first to sixth defendants responded to Mr Ezekiel-Hart’s email of 4 August 2023 at 8.57pm and said: … We refer to the plaintiff’s email to the parties and to the Court sent on Friday, 4 August 2023, at 8:57pm. In the email the plaintiff states that he will not be in Court on Monday. We also note the plaintiff’s earlier email exchanges with the Court and in particular to the email from the Associate to the Acting Justices sent to the parties on Friday, 4 August 2023, at 5:22pm. The email confirms that: a. the applications listed for hearing on Monday, 7 August 2023, will proceed on that day; and b. the plaintiff may make an application for adjournment on Monday if he wishes to do so. We also note the plaintiff’s email on Friday, 4 August 2023, at 8:57pm states that proceeding on Monday, 7 August 2023, will be in defiance of a direction of the Court of Appeal. At this stage, the Court of Appeal has not made any directions. Further, the matter is not presently before the Court of Appeal. As we understand it, on 3 August 2023, the plaintiff filed an application for leave to appeal his Honour’s interlocutory orders made on 31 July 2023. We write to put you on notice that our position is that his Honour, Acting Justice Curtin, should hear the parties’ applications tomorrow, which have been listed before him. …

25. On 7 August 2023 at 12.06am, the plaintiff responded to that email: … I will not teach you the law and the process and procedures anymore. You can rent a judge to execute your plots as you like and cover the lies of [RR], I am above human destruction. I wish you good luck. …

26. On 7 August 2023 at 9.39am, Mr Ezekiel-Hart emailed my associates and the parties and said: I will not be in Court today if you want the tooth I will provide it to you, am attending to my health within the limits of my income. I am deeply provoked by the conduct of the 1st to 6th Defendants, and I respectfully urge your honour not to allow your self to be used as instrument of oppression or allowed the court to be used as such, given that Court of appeals has set date to decide whether it would allow me documents and witnesses for this applications before you. Where will be the justice that I came for? if Court of appeals say I should have opportunity to present documents and evidence with the Defendants before you, and you have proceeded to dismiss the claim which transcript evidence shows that you have formed such opinion, but may change if the evidence and documents I sought from the Appeal are presented to you. I urge you to consider the interest of justice as paramount and public policy that I should not depend on public funds of Centrelink when I can have my work done if not discriminated against and treated with distinction by giving certificate to White lawyers found guilty of various offences but held on to my certificate by lying to court and Tribunal in circumstances that no court of law has ever found me guilty of any offence whatsoever in 58 years. I urge you to adjourn this matter till the outcome of Court of appeals decision in this matter. …

27. Again, no details were given of the claimed ill-health.

28. There was no identification of the medical practitioner the plaintiff had earlier said he would be attending for treatment nor the time at which he would be doing so nor was any medical evidence provided with that email.

29. On 7 August 2023 at 9.45am my associate replied and said: … I refer to the below email. HH has refused the application. No further applications by email will be entertained until further order. …

30. When these matters were called at 10:00am this morning the defendants appeared but there was no appearance by the plaintiff. The plaintiff was called outside court but has not appeared.

31. As matters subsequently transpired, the applications proceeded on 7 August 2023 in the absence of the plaintiff. The Court sat from 10 am until 3.46 pm on 7 August, and from 10:00am until 11.02am on 8 August 2023. The plaintiff did not attend Court during those times.

32. As noted in Ezekiel-Hart (No 2) at [3], and as notified by Mr Ezekiel-Hart's email to my associates of 20 July 2023 at 4.42pm, Mr Ezekiel-Hart had notified the parties and the court that he would not be pursuing his application listed for hearing today.

33. I note his email of 20 July 2023 at 4:42pm confirming that he would not pursuing his application listed for hearing on 7 August 2023. In that email he said: … Wishing you a pleasant afternoon. I will not pursue the hearing of the plaintiff’s application in proceeding dated 24 May 2023 listed for hearing on 7 August 2023 with an estimate of 2 days. I want it to be taken out of the list. I will have to amend my statement of claim given some of the documents produced by the 1-6th defendants. I am still waiting for documents to be produced by 1-9th Defendants. His Honour was not inclined to make orders and directed to the effect that I should use the process to get what I needed from the defendants. I am pursuing that course to obtain the documents to enable me amend once and appropriately the statement of claim. The 1-6 defendants are withholding documents and information that I will need to answer their questions in effect I will need a process to cause them to provide the documents and needed information. …

34. I note Mr Ezekiel-Hart's email contains a typographical error and the reference to the plaintiff’s application in proceeding dated “24 May 2023” should read “25 May 2023”.

35. For the reasons set out above, the application(s) for an adjournment and the application that I recuse myself are dismissed.

36. In short, no evidence was provided to support the adjournment application(s) and despite directions being given that such evidence be provided.

37. In relation to bias, no submissions (as distinct from allegations) were made to support the allegations. There is no actual bias, and it is my view that a fair-minded lay observer would not reasonably apprehend that I might not bring an impartial mind to the resolution of the questions I am required to decide.

38. I note that no further applications made by email by the plaintiff will be entertained or hereafter responded to from my chambers. If the plaintiff wishes to file an application he can do so by proceeding in the manner provided for by the rules and subject to the Orders made in Ezekiel-Hart (No 5).

Orders

39. I make the following Orders: (1) I order that the plaintiff’s application in proceeding filed 25 May 2023 be dismissed with costs. (2) I dismiss the plaintiff’s (email) applications for an adjournment and that I recuse myself. I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin. Associate: Date: