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[2024] ACTCA 40
respondent. The application for leave to appeal was dismissed, and the applicant was ordered to pay the respondents’ costs of the application.
The Court of Appeal refused permission to appeal an earlier procedural decision. It said the proposed grounds did not identify a real error that warranted reconsideration, and the applicant had not shown that refusing permission would cause substantial injustice. The Court also found that the primary judge’s handling of subpoenas, the pleading, the bias allegations, and costs did not create sufficient doubt. The applicant was ordered to pay the respondents’ costs.
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2,291 words · generated 08/10/2026
Emmanuel Ezekiel-Hart applied for leave to appeal from orders made by Curtin AJ on 31 July 2023. The earlier application had asked the Supreme Court to issue subpoenas to the defendants and to restrain the first to sixth defendants from pursuing a disciplinary proceeding in the ACT Civil and Administrative Tribunal (ACAT) ( [13]). The primary judge dismissed the application with costs, in reasons published as [2023] ACTSC 207 ([14]).
7 cited instruments linked from this judgment.
Because the challenged orders were interlocutory, Mr Ezekiel-Hart needed leave to appeal under s 37E(4) of the Supreme Court Act 1933 (ACT) ([16]). He filed an application for leave on 3 August 2023, supported by three affidavits. His draft notice of appeal raised 13 grounds ([3], [17]). The respondents opposed leave.
The leave application was heard on 18 October 2023. The Court reserved its decision while a separate proceeding concerning whether Mr Ezekiel-Hart should be declared a vexatious litigant was determined ([6]). On 2 February 2024, Curtin AJ made that declaration and struck out the Statement of Claim in the underlying proceeding. That judgment discussed 38 earlier proceedings and described the claim as defective, but Loukas-Karlsson J expressly stated that the leave application was decided on its merits without taking the vexatious-litigant declaration into account ([7]–[12], [81]).
Loukas-Karlsson J dismissed the leave application on 23 December 2024 and ordered Mr Ezekiel-Hart to pay the respondents’ costs ([84]–[85]). The reasons focus on the proposed appeal grounds and the established test for leave from interlocutory orders.
The Court identified two central questions: whether the primary judge’s decision was attended with sufficient doubt to warrant reconsideration, and whether substantial injustice would result if leave were refused, assuming the decision were wrong ([21]). The applicant bore the onus. The questions were related, not separate boxes to be assessed in isolation ([21], [24]–[25], [27]).
The type of decision also mattered. The subpoena ruling was a decision about practice and procedure. Drawing on the cited authorities, the Court said leave is granted sparingly to avoid delaying and fragmenting proceedings, and that courts are particularly cautious about appeals concerning procedural or discretionary decisions. By contrast, an interlocutory decision determining substantive rights may more readily warrant leave ([21]–[23]). The stay or restraint issue was treated differently: it engaged the Court’s supervisory jurisdiction over tribunals and concerned substantive rights, rather than merely practice and procedure ([79]). Even so, the Court found no identified error in the primary judge’s treatment of that issue.
The Court considered the proposed grounds one by one. It found that several did not identify an error in the decision at all. For example, the first ground concerned the applicant’s practising-certificate position, which the Court said was not before the primary judge in the July application ([28]–[29]). Other grounds made serious allegations, including that public office holders had lied or misled the Court, but did not supply a proper basis for them ([30]–[32]). The Court described the proposed grounds globally as tending towards repetition, imprecision, and lack of substance ([27]).
The Court also addressed the argument about r 6601A of the Court Procedures Rules 2006 (ACT). That rule, as reproduced in the judgment, restricts issuing a subpoena to produce without leave unless the Court has set a date for the hearing of the originating claim ([34]). The Court accepted the primary judge’s interpretation that “date for hearing” meant the final hearing of the proceedings, rather than an interlocutory application ([36]–[38]). The primary judge had also reasoned that, even if leave was not required, the subpoenas could be treated as applications to set them aside because they were broad and no legitimate forensic purpose had been established ([37]).
On the discrimination and human-rights grounds, the Court found that some statutory provisions relied on by the applicant had not been interpreted by the primary judge, and that the applicant had not supplied evidence linking the alleged detriment to the protected conduct described in s 26 of the Australian Human Rights Commission Act 1986 (Cth) ([39]–[42]). The Court therefore saw no sufficient doubt on those grounds. It also found that s 65(2) of the Legal Profession Act 2006 (ACT) was not an issue before the primary judge, and that s 31 of the Human Rights Act 2004 (ACT) did not, without more, provide a ground of appeal against that decision ([43]–[47]).
The bias allegations were not supported by evidence. The Court stated the apprehended-bias test by reference to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337: whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the matter ([55]). It concluded that the primary judge’s approach was logically reasoned and that there was no basis for such an apprehension ([55]–[56]).
The Court also rejected the contention that the primary judge could not assess the pleading without hearing evidence or permitting cross-examination. It considered that the pleading could be assessed on its face, and that the primary judge needed to consider it to decide whether the proposed subpoenas had a legitimate forensic purpose ([58]–[64]). The applicant had not applied to amend the Statement of Claim, so the Court found no error in the primary judge’s not granting an application that had not been made ([60]).
Finally, the Court found that substantial injustice would not result. The opportunity to issue subpoenas was not finally extinguished: the Court said that, if a hearing date were set in the underlying proceeding, subpoenas could be issued without leave ([75]). It also accepted the respondents’ submission that restraining the Law Society from proceeding would affect the exercise of statutory functions said to serve the public interest ([76]). The Court found no sufficient doubt or substantial injustice, considered both individually and collectively, and refused leave ([80]–[84]).
The judgment does not announce a new test for leave to appeal or state that it altered existing law. Instead, it gathers and applies established ACT Court of Appeal principles. The framework is expressed as two “touchstones”: sufficient doubt and substantial injustice ([21]). The applicant bears the onus, and the nature of the interlocutory decision informs the discretion ([21]–[25]).
The judgment’s account of the “before” position is that leave is generally approached cautiously where the challenged decision is procedural or discretionary, reflecting the need to avoid delay and fragmentation. The distinction between a procedural interlocutory decision and one determining substantive rights remains relevant; the latter is more readily considered for leave ([21]–[23]). The decision also stresses that sufficient doubt and substantial injustice interact, so the degree of doubt required may vary with the circumstances ([24]).
The “after” position, based only on this judgment, is an application of those principles to Mr Ezekiel-Hart’s proposed appeal. The Court found the primary decision was not attended with sufficient doubt, and that refusing leave would not cause substantial injustice ([81]–[84]). The judgment does not say that the applicable test was changed, narrowed, or expanded. Nor does the supplied text establish how later courts have treated this 2024 decision.
A relevant qualification is that the Court treated the proposed grounds as a whole as well as separately. It concluded that there was no sufficient doubt on any individual ground and none when they were assessed collectively ([83]). That makes the judgment a practical illustration of how the leave threshold can operate where appeal grounds are unclear, unsupported, or directed to matters outside the decision under appeal.
At [21], the Court identifies the two questions: “Is the decision attended with sufficient doubt to warrant its being reconsidered?” and “Would substantial injustice result if leave was refused, supposing the decision to be wrong?” In plain English, the applicant had to show both a meaningful reason to question the decision and a significant unfairness from not allowing an appeal, even on the assumption that the decision might be wrong.
At [24], the Court explains that those questions “should not be isolated in separate compartments”. Put simply, the required level of doubt is assessed in context. The potential injustice matters when deciding how much doubt is sufficient, and vice versa.
At [21]–[23], the Court describes the caution applied to procedural appeals. It says leave is granted sparingly to avoid fragmenting cases and that a tighter approach applies to procedural or discretionary decisions. The distinction does not make leave impossible; it affects how the discretion is exercised.
At [36]–[38], the Court deals with the subpoena rule. The primary judge read “date for hearing” as referring to the final hearing, and Loukas-Karlsson J found that interpretation correct. In practical terms, the applicant’s argument that a hearing date for an interlocutory application was enough did not persuade the Court.
At [55]–[56], the Court addresses apprehended bias. It applies the fair-minded lay observer test and finds no evidence-based foundation for the allegations. The plain-English point is that dissatisfaction with a ruling, without a proper factual basis for a reasonable concern about impartiality, did not establish bias for this leave application.
At [75], the Court says the opportunity to issue subpoenas “was not finally extinguished”. This mattered to substantial injustice: the refusal of leave did not, in the Court’s view, permanently remove the applicant’s ability to seek subpoenas if the proceeding reached a stage where the rule allowed them without leave.
At [82]–[84], the Court states its ultimate reasoning. The applicant had not discharged the onus of identifying a basis for reconsideration, and the Court found no sufficient doubt either on individual grounds or collectively. It therefore refused leave.
The decision is relevant to applications for leave to appeal from interlocutory rulings in ACT civil proceedings, particularly where the ruling concerns practice and procedure or involves the exercise of a discretion. Examples in the judgment include refusing subpoenas, assessing whether proposed subpoenas have a legitimate forensic purpose, and making a costs order after an unsuccessful application ([13]–[16], [34]–[38], [59]–[68]).
It is also relevant where a proposed appeal raises multiple grounds that are unclear, repetitive, conclusory, unsupported by evidence, or unrelated to the decision being challenged. The Court examined whether each ground identified a reviewable error and whether the grounds, viewed together, created sufficient doubt ([27]–[70], [82]–[83]).
For allegations of apprehended bias, the case illustrates the Court’s use of the fair-minded lay observer test and its attention to whether there is a proper evidentiary foundation ([55]–[56]). For a complaint that a pleading was assessed without evidence, it illustrates that the pleading itself may be considered when the question is whether subpoenas have a legitimate forensic purpose ([58]–[64]).
The decision also addresses a situation where the refused procedural step may remain available later. The Court treated the continued possibility of issuing subpoenas after a hearing date was set as relevant to whether refusing leave would cause substantial injustice ([75]). This part of the reasoning is tied to the particular rule and procedural circumstances described in the judgment; the text does not establish that the same result follows in every subpoena dispute.
The judgment itself does not report any later judicial treatment of Ezekiel-Hart v The Council of the Law Society of the ACT [2024] ACTCA 40. The supplied text identifies authorities relied on by Loukas-Karlsson J, but it does not cite decisions that subsequently applied, distinguished, or otherwise treated this judgment.
The judgment does refer to Ezekiel-Hart v The Council of the Law Society of the ACT (No 7) [2024] ACTSC 12, a separate Supreme Court decision made after the hearing of the leave application. That is not later treatment of the Court of Appeal’s decision: it was part of the procedural context considered before the Court of Appeal decided the leave application. Loukas-Karlsson J expressly stated that the leave decision was made on its merits without taking the vexatious-litigant declaration into account ([6]–[12], [81]).
The authorities discussed in the reasons are earlier authorities. They are used to explain the leave test, the distinction between procedural decisions and decisions affecting substantive rights, the apprehended-bias test, and costs principles ([21]–[25], [55], [67]). No broader claim about subsequent adoption of the 2024 decision can be made from this judgment alone.
The judgment does not decide the substantive merits of the underlying dispute about the Law Society’s conduct, practising certificates, or the ACAT disciplinary proceedings. It determines only whether leave should be granted to challenge the particular interlocutory orders. The Court expressly noted that the practising-certificate issue was not before the primary judge in the July application ([28]–[29]).
Nor does the judgment determine whether any alleged discrimination, retaliation, perjury, or other misconduct occurred. Its reasoning is that the proposed leave grounds did not identify a sufficient evidentiary basis or an error in the decision under appeal ([31]–[32], [39]–[42], [48]–[56], [72]–[76]). Those findings about the leave application should not be read as final findings on every underlying allegation.
The judgment’s interpretation of r 6601A is tied to the wording and procedural context set out in the reasons. It does not address every class of proceeding or every kind of subpoena. It also does not determine how the subpoena issue would have been resolved after a hearing date was set; it says only that the opportunity was not finally extinguished at the time relevant to the substantial-injustice analysis ([34]–[38], [75]).
Finally, the judgment provides no account of later appellate or first-instance decisions applying its reasoning. Whether later courts have adopted, limited, or distinguished this decision remains unanswered by the supplied text.
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Ezekiel-Hart v The Council of the Law Society of the ACT Citation: [2024] ACTCA 40 Hearing Date: 18 October 2023 Decision Date: 23 December 2024 Before: Loukas-Karlsson J Decision: (1) The Applicant’s application for leave to appeal is dismissed. (2) The Applicant is to pay the Respondents’ costs of this application. Catchwords: APPEAL – CIVIL LAW – application for leave to appeal – appeal from interlocutory decision – leave refused Legislation Cited: Australian Human Rights Commission Act 1986 (Cth) s 26 Court Procedures Rules 2006 (ACT) rr 406(1)b), 430, 1721, 6601A Discrimination Act 1991 (ACT) s 68 Human Rights Act 2004 (ACT) ss 31, 40B, 40C Human Rights Commission Act 2005 (ACT) s 98 Legal Profession Act 2006 (ACT) ss 6, 65(2), 384 Supreme Court Act 1933 (ACT), ss 37E(4), 37J, 67A(1) Cases Cited: Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012] ACTCA 37 Berhero Pty Ltd v Hinds (No 2) [2024] ACTSC 377 Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) [2008] ACTCA 9; 2 ACTLR 44 Donohue v Volanne Pty Ltd (No 2) [2021] ACTCA 11 Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Ezekiel-Hart v The Council of the Law Society of the ACT (No 2) [2023] ACTSC 207 Ezekiel-Hart v The Council of the Law Society of the ACT (No 7) [2024] ACTSC 12 Michael Wilson & Partners Ltd v Nicholls (No 9) [2022] ACTCA 70 More Than a Morsel Pty Ltd v Dean [2003] ACTCA 9 Pesec v Consolidated Builders Limited [2021] ACTCA 25 Re an application for leave to appeal by Insurance Australia ltd [2017] ACTCA 57; 83 MVR 1 SU v 5 Blackman Cres Macquarie Pty Ltd [2022] ACTCA 62 Parties: Emmanuel Ezekiel-Hart (Applicant) Council of the Law Society of the ACT (First Respondent) Robert Anthony Reis (Second Respondent) Simon Carton (Third Respondent) Farzana Choudhury (Fourth Respondent) Katie Elizabeth Binstock (Fifth Respondent) Samuel Harper (Sixth Respondent) Attorney-General of the ACT (Seventh Respondent) Director of Public Prosecutions (ACT) (Eighth Respondent) ACT Police Commissioner (Ninth Respondent) Representation: Counsel Self-represented (Applicant) D Moujalli (First to Sixth Respondents) A Muller (Seventh and Eighth Respondents) T Miller (Ninth Respondent) Solicitors Self-represented (Plaintiff) Thomson Geer (First to Sixth Respondents) ACT Government Solicitor (Seventh and Eighth Respondents) MinterEllison (Ninth Respondents) File Number: AC 31 of 2023 Decision Under Appeal: Court/Tribunal: ACT Supreme Court Before: Curtin AJ Date of Decision: 31 July 2023 Case Title: Ezekiel-Hart v The Council of the Law Society of the ACT (No 2) Citation: [2023] ACTSC 207 LOUKAS-KARLSSON J: Introduction
On 23 December 2024 I dismissed this application for leave to appeal. I now publish the reasons for that decision.
This is an application for leave to appeal from orders made by Acting Justice Curtin (the primary judge) on 31 July 2023. Mr Chief Ezekiel-Hart (the Applicant) sought: (a) “That the applicant be given leave to appeal against the judgment of Honourable Acting Justice Curtin delivered on 31 July 2023”; and (b) That the applicant be given leave “to make this application even though the notice was filed more than 7 days after the day the judgment was given.”
The application was supported by three affidavits of the Applicant affirmed on 3 August 2023, 19 September 2023 and 12 October 2023.
The Applicant was self-represented in this case.
I am sitting as the Court of Appeal constituted by a single judge pursuant to s 37J of the Supreme Court Act 1933 (ACT).
Subsequent judgment declaring the Applicant a vexatious litigant
For context, I note at the outset, that subsequent to the hearing before me of this application for leave, Curtin AJ (also the primary judge in this matter before me) on 2 February 2024 made an order declaring the Applicant to be a vexatious litigant (Ezekiel- Hart v The Council of the Law Society of the ACT (No 7) [2024] ACTSC 12 (Ezekiel-Hart (No 7)) (February 2024 orders). The vexatious litigant case was argued before Curtin AJ in August 2023 prior to the hearing before me in October 2023, concerning this leave application. It was therefore submitted, and I agreed, that it was appropriate to reserve my decision until the determination by Curtin AJ of the vexatious litigant application by the Law Society.
The Law Society in that case put forward 38 earlier proceedings which were submitted to be within the meaning of the term “vexatious proceedings”, as defined in s 67A(1) of the Supreme Court Act 1993 (ACT). The relevant facts of each of these 38 proceedings, in addition to Curtin AJ’s findings as to which of the proceedings were vexatious, are set out in Curtin AJ’s judgment in Ezekiel-Hart (No 7) at [109] – [319].
The judgment stated that the Applicant should be declared a vexatious litigant, on the basis that he had “frequently commenced vexatious proceedings, most of which concern the [Law Society’s] refusal to grant him practising certificates” (at [430]).
Additionally, the Statement of Claim was struck out with Curtin AJ stating at [361] – [362]: [361] The statement of claim is wholly defective. It does not serve the purpose of a pleading, which is to clearly inform the defendants of the case they have to meet. It is supposed to do so by clearly setting out the material facts in relation to the elements of each cause of action pleaded. [362] The statement of claim contains claims that the applicant seeks to pursue which are fundamentally flawed and based upon an erroneous understanding of relevant legal principles. (emphasis added)
Further, the Statement of Claim was found not to comply with the mandatory requirements in r 406(1)b) and r 430 of the Court Procedures Rules 2006 (ACT) (Court Procedures Rules) having regard to the serious allegations (at [364] – [366]).
In that case, the plaintiff did not appear and made no application in person or otherwise that he be given leave to replead. Curtin AJ found that in any event, he was satisfied that no viable amended Statement of Claim would be produced were the plaintiff given leave to replead (at [367]). For completeness, I note that the Statement of Claim referred to in the judgment declaring the Applicant a vexatious litigant is the very same Statement of Claim concerning the application for leave to appeal that I must decide.
Curtin AJ ultimately stated at [399] – [402]: [399] In my view, summary dismissal is justified. [400] The contents of the statement of claim amount to a diffuse smorgasbord of overlapping allegations of fraud of various kinds (some involving allegations against persons not named in substantive paragraphs of the pleading) which lack any (required) material facts, contain claims which are fundamentally flawed, and are based upon an erroneous understanding of relevant legal principles. Many paragraphs are conclusory or completely unspecific as to when and in what way the alleged acts of dishonesty occurred. [401] Those matters, together with the ulterior purpose identified, lead me to conclude that these proceedings are an abuse of process. [402] As I have found earlier, the statement of claim is wholly defective and does not comply with the Rules. (emphasis added) Background to the application for leave before me sitting as the Court of Appeal
The application
On 3 August 2023, the Applicant filed an application seeking leave to appeal from the primary judge’s orders made on 31 July 2023 (the application). As the Applicant sought to appeal against an interlocutory order, the Applicant required leave to appeal: s 37E(4) Supreme Court Act 1933 (ACT).
The draft notice of appeal specified 13 grounds of appeal.
The first, second, third, fourth, fifth and six respondents (Law Society Respondents) opposed the granting of leave. The Law Society Respondents relied on the affidavit of Ms Binstock affirmed on 18 August 2023 in relation to the Leave Application.
The seventh and eighth respondents, being the Attorney-General of the ACT and the Director of Public Prosecutions (ACT), opposed the granting of leave and adopted the submissions of the Law Society Respondents.
The ninth respondent (the ACT Police Commissioner) opposed the granting of leave and relied on the submissions of the Law Society Respondents and sought that the application be dismissed with costs. The relevant law
It is well established that there are no rigid criteria concerning whether to grant leave to appeal from interlocutory orders. Further, it is well established that delay and the fragmentation of cases are to be avoided where possible and that the onus is on the Applicant, who applies for leave. There are nevertheless two fundamental questions to be answered. The first question concerns sufficient doubt, and the second question concerns substantial injustice. In Donohue v Volanne Pty Ltd (No 2) [2021] ACTCA 11 (Donohue v Volanne), Murrell CJ usefully set out relevant principles concerning the question of granting leave to appeal from interlocutory orders at [13] – [15]. [13] Although there are no rigid and exhaustive criteria which govern the exercise of the discretion to refuse or grant leave to appeal from an interlocutory decision, there are two touchstones: a. Is the decision attended with sufficient doubt to warrant its being reconsidered? b. Would substantial injustice result if leave was refused, supposing the decision to be wrong? See Re an application for leave to appeal by Insurance Australia Ltd [2017] ACTCA 57 at [10], Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9; 2 ACTLR 44 (Capital Property), More Than a Morsel Pty Ltd v Dean [2003] ACTCA 9 at [4].” [14] The onus lies upon the party who applies for leave to satisfy the Court of Appeal of those factors. [15] The type of decision that is the subject of the application also informs the exercise of the discretion. As Refshauge J observed in Capital Property at [28]: “[T]he principles with which a Court approaches the decision as to whether to grant leave are: a. that leave will be granted sparingly to avoid delaying and fragmenting the hearing of cases; b. that a Court will be particularly hesitant to grant leave where the decision is one in respect of practice and procedure or is made in the exercise of a discretion; and c. that decisions which, though interlocutory, determine substantive rights will more readily be the subject of the grant of leave.” See also Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012] ACTCA 37; 7 ACTLR 48 at [58] and Quach v Butt [2017] ACTCA 4 at [12]. (emphasis added)
Is the decision attended with sufficient doubt to warrant reconsideration?
For the reasons that follow, in my view, the decision of the primary judge is not attended with “sufficient doubt” to warrant reconsideration.
The Law Society Respondents submitted that the grounds of appeal, as outlined by the Applicant in the notice of appeal, are “repetitive, vague, imprecise and unsubstantiated” and that it is impossible to discern from the grounds any alleged errors in the decision which could give rise to “sufficient doubt” to warrant the Decision being reconsidered. Regrettably, I must agree. Globally, the grounds tend towards repetition, a lack of precision, and a lack of substance. It is now proper to deal with each ground individually on the question of “sufficient doubt”, while noting that the question of “sufficient doubt” and substantial injustice are related and not isolated concepts. Nevertheless, for the sake of clarity, I will deal with the substantial injustice question under a separate heading.
Ground 1
Ground 1 asserts that the decision is plainly unjust as it institutionalises “oppression and impunity without ramification which have continued for over ten years beyond the maximum 5 years that a lawyer in the ACT can have his certificate seized by Mr Robert Reis using the Council without the orders of the Court.”
The Law Society Respondents submitted that this ground appears to refer to the Applicant not holding a practicing certificate. The Law Society Respondents correctly submitted that this issue was not before the Court. It is clear that the primary judge was concerned with an application for leave to issue subpoenas and an application to effectively stay ongoing proceedings in the ACT Civil and Administrative Tribunal (ACAT). Therefore, in my view, the Applicant has not identified any proper basis for stating that the decision is unjust. Nor does the ground otherwise identify any errors in the decision. On my review of the decision and this ground, it is clear that no error has been identified by the Applicant and that there is therefore no relevant “sufficient doubt” identified with respect to this ground and the decision.
Ground 2
Ground 2 asserts that the decision encourages lies and the misleading of the Court by public office holders acting ostensibly with the authority of the ACT Law Society.
The Law Society Respondents properly submitted that the ground does not identify any error in the decision. That is correct on my assessment of the purported ground. It was further submitted that this ground “borders on the scandalous” and is not a proper ground of appeal.
In my view, no error has been identified in the decision itself. The ground is wholly without substance. It is a ground where no basis whatsoever has been put forward to substantiate serious allegations of “lies and misleading of the Court.” These are flagrant and dramatic allegations made by the Applicant without a proper or any basis. There is, therefore, in my view, relevantly no “sufficient doubt” concerning this ground and the decision.
Ground 3
Ground 3 asserts that the decision is infected with errors of fact and law, in that the primary judge misapprehended the facts and proceeded with that misapprehension to a “poor interpretation” of r 6601A of the Court Procedures Rules which “allow[s] [the] issue of subpoena[s] when hearing date…set.”
It is appropriate in this context to set out r 6601A in full. Rule 6601A relevantly states: 6601A Issuing subpoena to produce—originating claim (1) This rule applies to a proceeding started by— (a) originating claim; or (b) originating application, if the court has ordered that the proceeding continue as if started by originating claim; or (c) an application for arbitration under part 3.13 (Workers compensation); or (d) an application in a family violence or personal violence proceeding under part 3.12 (Family violence and personal violence proceedings). (2) An issuing officer must not issue a subpoena to produce in the proceeding without the court’s leave unless the court has set a date for the hearing of the originating claim. (3) Subrule (2) does not apply to a subpoena in a proceeding under part 3.13 that is addressed to a party to the proceeding. (emphasis added)
The Law Society Respondents submitted that this ground does not identify any error of fact. That submission is correct; on my review of the asserted ground and the decision of the primary judge, I am of the view that no error of fact has been identified by the Applicant. Further, in my view, there has been no misapprehension or “poor interpretation” of Rule 6601A by the primary judge.
In relation to r 6601A, the primary judge correctly, in my view, interpreted “date for hearing” to refer to the date of final hearing at [17]: Subrule 2 of that rule refers to a “date for hearing”. That expression is not defined in the rules so far as I can see but the words “hearing date” appear in the rules elsewhere and it seems to me from the context in which those words appear that those words, and the words “date for hearing”, refer to the date for the final hearing of the proceedings and not for the hearing of interlocutory applications
At [18] the primary judge stated that even if he were wrong about the interpretation of r 6601A, and the plaintiff did not require leave, the primary judge would have treated the application as an application by the defendants to set aside the subpoenas pursuant to r 6604 and granted the application.
In my view there is no “sufficient doubt” in respect of this aspect of the decision. As a matter of statutory construction, on my analysis, the primary judge was correct in his interpretation of r 6601A and the issue of final hearing.
Ground 4
Ground 4 asserts that the primary judge misapprehended the true impact of the detriment to the Applicant occasioned by the Law Society Respondents, and that the primary judge misinterpreted s 26 of the Australian Human Rights Commission Act 1986 (Cth), s 98 of the Human Rights Commission Act 2005 (ACT) and s 68 of the Discrimination Act 1991 (ACT).
The Applicant submitted that s 26 of the Australian Human Rights Commission Act 1986 (Cth), s 98 of the Human Rights Commission Act 2005 (ACT) and s 68 of the Discrimination Act 1991 (ACT) were implemented to “ensure unhindered prosecution of human rights and discrimination action without detriments.” The Applicant submitted that, in this case, it affected “compliance with court timetables because it is practically st nd impossible without money occasioned by the 1 and 2 Defendants for [the Applicant] to attend [ACAT] for disciplinary action because of “discrimination action.””
The Law Society Respondents correctly submitted that the primary judge did not, in fact, in the decision, interpret s 98 of the Human Rights Commission Act 2005 (ACT) or s 68 of the Discrimination Act 1991 (ACT). As for s 26, the Law Society Respondents further submitted that the finding in relation to s 26 of the Australian Human Rights Commission Act 1986 (Cth) (the decision at [77] – [78]) was correct. The primary judge relevantly stated as follows: [77] I also do not accept the plaintiff's fourth submission. Section 26 of the Australian Human Rights Commission Act 1986 says: 26 Offences relating to administration of Act (1) A person shall not hinder, obstruct, molest or interfere with: (a) a member participating in an inquiry or examination under this Act; or (b) a person acting for or on behalf of the Commission, while that person is holding an inquiry or carrying out an investigation under this Act.
Penalty: 10 penalty units. (2) A person who: (a) refuses to employ another person; or (b) dismisses, or threatens to dismiss, another person from the other person’s employment; or (c) prejudices, or threatens to prejudice, another person in the other person’s employment; or (d) intimidates or coerces, imposes any pecuniary or other penalty upon, or takes any other disciplinary action in relation to, another person; by reason that the other person: (e) has made, or proposes to make, a complaint to the Commission; or (f) has alleged, or proposes to allege, that a person has done an act or engaged in a practice that is inconsistent with or contrary to any human right; or (g) has furnished, or proposes to furnish, any information or documents to the Commission or to a person acting for or on behalf of the Commission; or (h) has given or proposes to give evidence before the Commission or to a person acting on behalf of the Commission; commits an offence punishable upon conviction: (j) in the case of a natural person—by a fine not exceeding 25 penalty units or imprisonment for a period not exceeding 3 months, or both; or (k) in the case of a body corporate—by a fine not exceeding 100 penalty units. (3) It is a defence to a prosecution for an offence under subsection (2) constituted by subjecting, or threatening to subject, a person to a detriment specified in paragraph (2)(a), (b), (c) or (d) on the ground that the person has alleged that another person has done an act or engaged in a practice that is inconsistent with or contrary to any human right if it is proved that the allegation was false and was not made in good faith. Note: Sections 136.1, 137.1 and 137.2 of the Criminal Code deal with making false or misleading statements, giving false or misleading information and producing false or misleading documents. [78] To make good this submission, the plaintiff would need to provide proof that any one or more of the first to sixth defendants have intimidated or coerced or imposed any pecuniary or other penalty upon or taken any other disciplinary action in relation to the plaintiff by reason that the first to sixth defendants have done the particular matters set out in s 26(2)(e) to (h). (emphasis added)
Ground 5
Ground 5 asserts that the primary judge misapprehended the application of s 65(2) of the Legal Profession Act 2006 (ACT) (LPA) and that the decision cannot be justified under s 31 of the Human Rights Act 2004 (ACT) (HRA).
The Law Society Respondents submitted that it is not clear what precise point is sought to be raised by this ground. I agree. This ground, in my assessment, is opaque; clarity, in my view, is lacking concerning the basis for this ground. Further, the Law Society Respondents submitted that the application of s 65(2) of the Legal Profession Act 2006 (ACT) was not in fact an issue before the Court. I accept that submission as it accords with my view of the issues before the primary judge upon my review of the decision.
It is relevant to set out s 65(2) LPA in this context: 65 Restriction on further applications for local practising certificate after refusal to grant or renew (1) This section applies if the relevant council decides under section 62 (Refusal to grant or renew unrestricted or restricted practising certificate—failure to show cause etc) or section 63 (Refusal to grant or renew barrister practising certificate—failure to show cause etc) to refuse to grant or renew a local practising certificate to a person. (2) The relevant council may also decide that the person is not entitled to apply for the grant of a local practising certificate for a stated period of not longer than 5 years. (3) If the relevant council makes a decision under subsection (2), the relevant council must include the decision in the information notice required under section 62 (2) or section 63 (2). (4) A person in relation to whom a decision has been made under this section, or under a provision of a corresponding law that corresponds to this section, is not entitled to apply for the grant of a local practising certificate during the period stated in the decision.
It is also relevant to set out s 31 HRA as it is referred to by the Applicant in the context of this purported ground: 31 Interpretation of human rights (1) International law, and the judgments of foreign and international courts and tribunals, relevant to a human right may be considered in interpreting the human right. (2) In deciding whether material mentioned in subsection (1) or any other material should be considered, and the weight to be given to the material, the following matters must be taken into account: (a) the desirability of being able to rely on the ordinary meaning of this Act, having regard to its purpose and its provisions read in the context of the Act as a whole; (b) the undesirability of prolonging proceedings without compensating advantage; (c) the accessibility of the material to the public. Note The matters to be taken into account under this subsection are consistent with those required to be taken into account under the Legislation Act, s 141 (2). (3) For subsection (2) (c), material in the ACT legislation register is taken to be accessible to the public.
Ground 6
Ground 6 asserts that the decision constitutes a miscarriage of justice. There is an allegation that one of the Law Society Defendants lied to the ACAT and to the Court. The Applicant submitted that the Law Society should be required to give evidence and produce documents for a forensic purpose.
The Law Society Respondents submitted that the Applicant did not particularise the forensic purpose of the documents sought, to the applications before the Court or the pleadings. I agree that the forensic purpose was not particularised by the Applicant. It cannot be said, therefore, that the decision is attended by doubt.
In my view, the primary judge’s reasoning is unassailable. No forensic purpose has been identified by the Applicant. Therefore, the decision, in my view, is not attended by “sufficient doubt.” Grounds 7, 10 and 11
Grounds 7, 10 and 11 assert that the primary judge was biased.
In relation to Ground 7, the Applicant submitted that the primary judge was biased and appeared to “act as [an] advocate of the Defendants” by refusing leave for the Applicant to amend the Statement of Claim and stating the following at [63]: The terms of the subpoenas are broad and so broad, in my view, as to be oppressive in the circumstances where the pleadings are legally incompetent.
In relation to Ground 10, the Applicant asserted that the primary judge was so biased that the Respondents “asked that some part of the subpoena be complied with as an order, but his Honour refused and dismissed the whole subpoena against the wishes of the Defendants and interests of justice.”
In relation to Ground 11, the Applicant asserted that the primary judge’s failure to grant the injunction was biased. The Applicant submitted that on 13 April 2023, the Court refused an application for an injunction restraining the first and second Defendants from causing detriment to the Applicant, in circumstances where the Applicant was a victim of the defendants’ contravention of ss 40B and 40C of the HRA, s 26 of the Australian Human Rights Commission Act (1986) (Cth) and s 98 of the Human Rights Commission Act 2005 (ACT).
The Law Society Respondents submitted that there is no evidence capable of sustaining an allegation that the primary judge was biased. I agree. In my view, the applicant asserts allegations of bias without any proper evidentiary basis; the allegations of bias are simply baseless. Further, the Law Society Respondents submitted there can be no suggestion that a fair-minded lay observer might reasonably apprehend bias. For apprehended bias to be established, I note that the test is whether a fair-minded lay observer might have reasonably apprehended that the primary judge might not have brought an impartial mind to the application: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6].
Ground 8
Ground 8 asserts that the primary judge erred in making a finding concerning the substantive matter and failing to allow the Applicant to amend the Statement of Claim.
The primary judge found at [35] that he could not “discern any clear or cogent cause of action or the material facts” relevant to the cause of action in the Statement of Claim: I cannot discern any clear or cogent cause of action or the material facts relevant to that cause of action in this document. In Mendonca v Legal Services Commissioner [2020] NSWCA 84 McCallum JA, with whom Basten and Leeming JJA agreed, said at [21] that the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point. In my view that same observation applies to pleadings in that the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions in a pleading to attempt to identify any cause or causes of action sought to be advanced. (emphasis added)
The Law Society Respondents submitted that consideration of the contents of the Statement of Claim was necessary for the primary judge’s assessment of whether the subpoenas that the Applicant sought to have issued had any legitimate forensic purpose. I agree. This is clear from the below paragraphs of the primary judge’s decision at [63] – [64]: [63] The terms of the subpoenas are broad and so broad, in my view, as to be oppressive in the circumstances where the pleadings are legally incompetent. [64] In all of those circumstances, I am not satisfied that there is any legitimate forensic purpose (in the relevant sense) to be served by granting leave to issue these subpoenas and I refuse the application.
The Law Society Respondents further submitted that in circumstances where the Applicant did not discharge his forensic onus of demonstrating the potential relevance of the documents sought, the primary judge was entitled to have regard to the Statement of Claim as drafted, to ascertain whether there was any possible legitimate forensic purpose to the subpoenas which the Applicant sought. Importantly, it was highlighted in relation to the primary judge’s asserted failure to allow the Applicant to amend the Statement of Claim, that there was, in fact, no application before the primary judge to amend the Statement of Claim. In my view, where there was no application to amend the Statement of Claim as here, there can be no failure in not allowing an application (that was not brought before the primary judge).
In conclusion on this ground, I find there is no error demonstrated in the primary judge’s reasoning. In my view, the terms of the subpoenas were broad and oppressive. On this ground, I find no “sufficient doubt” concerning the decision. Ground 9
Ground 9 asserts that the primary judge erred in finding that the pleadings are “legally incompetent” without hearing evidence or allowing the Law Society Defendant referred to in Ground 6 to be cross-examined.
Ground 12
Ground 12 asserts that the primary judge misapprehended “the fact of first in time to make application on 1 May 2023” and proceeded under that misapprehension to make a cost order against the Applicant. The Applicant submitted that this misapprehension was despite the fact that it was the misleading and deceptive conduct and unconscionable conduct of the first and second Defendants that brought the matter to court.
The Law Society Respondents correctly submitted that the alleged error of fact is unclear and that, in any event, it had no bearing on the costs order. The Law Society Respondents further correctly submitted that the primary judge made a costs order against the Applicant because his application was unsuccessful. In my view, the approach of the primary judge was legally orthodox and I do not evince any error in this regard.
The General Rule (Court Procedures Rules r 1721) and the principles concerning the award of costs are well established: see Berhero Pty Ltd v Hinds (No 2) [2024] ACTSC 377 at [57]. Costs usually follow the event: see Michael Wilson & Partners Ltd v Nicholls (No 9) [2022] ACTCA 70 at [12] – [13] where I underlined that: [12] In terms of awarding costs, the Court's discretion is unfettered save that the discretion must be exercised judicially: Perisher Blue Pty Limited v Chubb Fire Safety Limited [2014] ACTCA 43 at [41]-[42]. Determining the appropriate costs order requires a broad evaluative judgment of what justice requires in the particular circumstances of the case. So much is apparent from the comments of French CJ, Hayne, Bell, Gageler and Keane JJ in Gray v Richards (No 2) [2014] HCA 47; 252 CLR 601 at [2], where their Honours stated: “The disposition of costs is within the general discretion of the court. Ordinarily, that discretion will be exercised so that costs are awarded to the successful party, but other factors may have a significant claim on the discretion of the Court. The disposition which is ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires.” (Emphasis added, citations omitted) [13] The ordinary consequence is that costs follow the event: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 (Oshlack) at [67], [134]. That is to say, that the successful party will generally be entitled to its costs on a party-party basis. (emphasis added)
In conclusion on this ground, in my view, there is no “sufficient doubt” concerning the decision in this regard. Costs have properly followed the event.
Ground 13
Ground 13 asserts the Applicant’s evidence and conduct of the Law Society Respondents demonstrates that the decision is erroneous.
The Law Society Respondents correctly submitted this ground is conclusory and does not identify any alleged error in the decision. I agree. In my view, this is a conclusion couched as a ground by the Applicant. The ground bears no substance. There is, in my view, no “sufficient doubt” concerning this ground and the decision.
Would substantial injustice result if leave were refused?
For the following reasons, in my view substantial injustice would not result if leave were refused, supposing the decision to be wrong.
The Applicant submitted that the Respondents have “admitted recklessness” and “admitted perjury” in an affidavit in ACAT.
The Applicant further submitted that, “noting that Council of 18 April 2016 sat and dismissed all the complaints in that year, and [the] same matters were brought to [ACAT] in 2023, all rules of procedural fairness were ignored.”
The Applicant additionally submitted that, if leave were refused, this would not serve the public interest because it would “entrench a new custom of lying to the Court to pervert the court of justice.”
In relation to an order that subpoenas be issued, the Law Society Respondents correctly submitted that the Applicant had not been deprived of the opportunity to issue subpoenas. In my view, this is important to answering the question of substantial injustice supposing the decision to be wrong. In the event that a hearing date in SC 139 of 2023 be set, the Applicant would have the opportunity for subpoenas to be issued to the respondents without requiring the leave of the Court. This, in my view, is correct as the opportunity for issuing subpoenas was not finally extinguished and remained extant at that time.
In relation to whether the public interest would be prejudiced, the Law Society Respondents relied on ss 6 and 384 of the Legal Profession Act 2006 (ACT). The statue provides that a primary purpose of the functions which the Law Society discharges are for the protection of consumers of legal services. The Law Society Respondents submitted that, where the primary judge was asked to restrain these proceedings, the Court was, in essence, being asked that the Law Society be restrained from performing their statutory functions in the public interest. In my view, the submission concerning the public interest is correct. Further, in my view, if leave to appeal was not granted, it would not constitute a substantial injustice, supposing the decision to be wrong. I am of this view, balancing all relevant considerations concerning the public interest including the stage of the proceedings.
For completeness, I further note concerning the stay issue, that for all intents and purposes, identical relief was concurrently sought in both the Supreme Court and the ACAT by the Applicant.
Conclusion
The question of the issuing subpoenas is clearly an interlocutory decision in relation to practice and procedure where there are strict constraints as discussed at [21] – [25] earlier in this judgment.
The issue of stay or restraint of ACAT invokes the Courts supervisory jurisdiction in relation to tribunals and is not an issue of practice and procedure but of substantive rights as discussed earlier in this decision: see Donohue v Volanne. My review of the timeline and the relevant documents reveals that the applicant’s contention that the ACAT proceedings were a response to the Applicant proceeding in the Supreme Court, has no proper basis in the evidence: additionally, see [72] of the decision: [72] The first defendant informed the plaintiff of its own-motion complaint by letter dated 24 February 2023 and the present proceedings were not commenced until 11 April 2023. That is, steps had been instituted prior to 1 May 2023 which could naturally result in the commencement of the Tribunal proceedings and at a point in time before the plaintiff had commenced the present Supreme Court proceedings. There is simply no evidence that the bringing of the Tribunal proceedings on 1 May 2023 was for any purpose other than a legitimate purpose and so I reject the submission. (emphasis added)
In my view, no error concerning a principle of law nor any error of fact or otherwise has been identified by the Applicant on any ground. There has not been a taking into account by the primary judge of an irrelevant consideration; nor has there been a failure to take into account a relevant consideration. The decision of the primary judge, in my view, was not unreasonable nor plainly unjust.
In my view, leave should be refused on all grounds. This decision is made on the merits of the Application for leave, without taking into account that the Applicant has been declared a vexatious litigant: see [6] – [12].
Leave should be refused because the Draft Notice of Appeal and the Affidavits of the applicant do not identify any basis whatsoever that would lead this Court, sitting as the Court of Appeal, to conclude there is “sufficient doubt to warrant the decision being reconsidered.” The Applicant bears the onus and that onus has not been satisfied.
I have assessed the proposed grounds both individually and collectively as discussed above from [25] to [70]. There is no “sufficient doubt” either on the individual grounds or the grounds assessed collectively. Moreover, substantial injustice would not result if leave were refused (as discussed at paragraphs [69] – [78]).
Leave was therefore refused on 23 December 2024.
Orders
I certify that the preceding eighty-five [85] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: 22 January 2025
Ezekiel-Hart
The Council of the Law Society of the ACT [2024] ACTCA 40
(2000) 205 CLR 337
(1991) 33 FCR 397
(1981) 148 CLR 170
(1936) 56 CLR 221
The application for leave to appeal was dismissed, and the applicant was ordered to pay the respondents’ costs of the application.
On 31 July 2023, the primary judge heard an application by the Applicant dated 26 July 2023 (the July Application) seeking orders for the issuing of subpoenas to the defendants and restraining the first to sixth defendants from proceeding with a disciplinary proceeding in ACAT. In summary, the following orders were sought: (a) That subpoenas be issued and served on the Defendants. (b) That the Court restrain Defendants (1-6) from pursuing any further complaint or disciplinary action concerning the dismissed application in the Tribunal on 19 July 2023, which was commenced after the Plaintiff had lodged his human rights claim before this Court and had taken action concerning a claim of discrimination against the Defendants.
On 31 July 2023, the primary judge made orders dismissing the application with costs (the decision). The decision was given ex tempore and the reasons were published: Ezekiel-Hart v The Council of the Law Society of the ACT (No 2) [2023] ACTSC 207.
The application as it related to the seventh and eighth defendants was dismissed on the basis of the absence of evidence that the seventh and eighth defendants were given proper notice of the July application by the Applicant. It is convenient to indicate that the defendants will now be referred to as respondents in this judgment as they are now the respondents to this application for leave to appeal.
Earlier, in Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning and Land Authority [2008] ACTCA 9; 2 ACTLR 44 (Capital Property) at [34], Refshauge J referred to the decision of the Full Court of the Federal Court of Australia in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399 – 400, concerning the broad distinction relevant to interlocutory decision appeals: discussed in Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012] ACTCA 37. It is the distinction that inheres between: on the one hand, interlocutory decisions that determine substantive rights and; on the other hand, an interlocutory decision on a point of practice that does not determine substantive rights: In our opinion, the principles discussed in Niemann and in the other cases to which we have referred provide general guidance which a court should normally accept. However, there will continue to be cases raising special considerations, and the court should not regard its hands as tied in any case beyond this; that by s 24(1A) [of the Federal Court of Australia Act 1976 (Cth) ] the legislature has evinced a policy against the bringing of interlocutory appeals except where the court, acting judicially, finds reason to grant leave. When the court comes to exercise its discretion on a particular application, an important distinction to be observed is that between the common interlocutory decision on a point of practice -concerning which the High Court has given (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177) a strong warning that ‘a tight rein’ should be kept on appeals - and an interlocutory decision determining a substantive right - where leave will more readily be granted. Although the judgments of Jordan CJ in Re Will of Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323 and of the majority of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (supra) are not concerned with the question of the granting of leave, they emphasise this distinction, which was applied to the granting of leave in Ex parte Bucknell (1936) 56 CLR 221 and Sharp, (supra). In the present case, the interlocutory decisions in respect of which leave is sought are certainly attended with difficulty, and their correctness is open to dispute. If they are wrong, significant consequences will be suffered by the applicants. We regard this as a clear case for the grant of leave. (emphasis added)
In a similar vein, in Re an application for leave to appeal by Insurance Australia Pty Ltd [2017] ACTCA 57, Mossop J referred to the distinction at [21]: In assessing whether there is sufficient doubt to warrant the decision being reconsidered it must be borne in mind that the decision in relation to which leave is sought is a discretionary decision involving a question of practice and procedure. It is therefore a decision of a type in relation to which a tight rein must be kept on appeals and which will only be interfered with if the judge below exercised the discretion on the basis of some wrong principle, error of fact, taking into account an irrelevant consideration, failing to take into account a relevant consideration, or in a manner which was unreasonable or plainly unjust. (emphasis added)
On the question of the discretion and the balancing of considerations, in Pesec v Consolidated Builders Ltd [2021] ACTCA 25, Crowe AJ referred to the two related questions of sufficiency of doubt and substantial injustice at [16]. It is clear that the two questions; first concerning sufficiency of doubt and second concerning the question of substantial injustice, are not isolated categories: It is also important to note the following extract from the Sharp v Deputy Commissioner of Taxation (Cth) (1988) 88 ATC 4148 (per Burchett J at 4186) which was quoted with apparent approval by the Full Court in Décor Corporation: “In my opinion, the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations.” (emphasis added)
Additionally, in SU v 5 Blackman Cres Macquarie Pty Ltd [2022] ACTCA 62 I discussed the relevant law at [17], [18] and [69]. I further note that the Court of Appeal in More Than a Morsel Pty Ltd v Dean [2003] ACTCA 9 (at [4]) confirmed that “sufficient doubt” and “substantial injustice” are both to be considered, not merely one or the other.
In my view, the submission of the Law Society Respondents has been made good concerning this ground. It is clear that s 65(2) LPA was not an issue before the primary judge. Nor can s 31 HRA play an appellate role concerning the decision. Section 31 HRA cannot be the basis for a ground of appeal concerning the decision of the primary judge without more, as s 31 generally concerns the question of international judgments in the area of Human Rights Law. My review of the decision at first instance and the asserted ground does not reveal error in the decision. There is therefore, in my view, no “sufficient doubt” concerning the decision.
In my view, the primary judge’s approach was properly and logically reasoned. Further, there is no basis, whatsoever, to suggest that a fair-minded lay observer might reasonably apprehend bias. There is therefore, in my view, no “sufficient doubt” concerning these grounds (7, 10 and 11) and the decision.
The Law Society Respondents correctly submitted that it is appropriate to consider the pleadings without reference to the evidence or allowing the cross-examination of the Law Society Respondents. The Law Society Respondents noted, as an example, r 425(1) empowers the Court to strike out a pleading on various grounds. Rule 425(2) states that the Court may receive evidence on a hearing of an application for an order pursuant to r 425. The Law Society Respondents submitted that it follows that the Court is able to assess whether a pleading is deficient in a relevant sense without receiving evidence. This is clear, in my view, as receiving evidence on this issue is not essential having regard to the Rules.
In my view the pleadings were appropriately and correctly assessed by the primary judge. The deficiency was clear on the pleadings without the court receiving evidence. There is no error. There is therefore, in my view, no “sufficient doubt” concerning this ground and the decision.