Emmanuel Tam Ezekiel-Hart v The Law Society of the Australian Capital Territory

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 29 June 2012
• Date: 29 June 2012
• Docket Number: No. SC 640 of 2011

[2012] ACTSC 103

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SC 640 of 2011

Between:

Emmanuel Tam Ezekiel-Hart

Plaintiff

and

The Law Society of the Australian Capital Territory

First Defendant

Robert Reis

Second Defendant

Larry King

Third Defendant

Rod Barnett

Fourth Defendant

Counsel for the plaintiff: Self represented

Counsel for the defendants: Mr N Beaumont

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

Anlaby v Praetorius (1888) 20 QBD 764

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

Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256

Beaudesert Shire Council v Smith (1966) 120 CLR 145

Blair v Curran (1939) 62 CLR 464

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 )

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

Chahwin v Euphoric Pty Ltd (2009) 73 ACSR 252

Coburn v Brotchie (1890) 16 VLR 6

Coffey v Secretary, Department of Social Security (1999) 86 FCR 434

Commonwealth Bank of Australia v Wales [2012] NSWSC 407

Davies v Pagett (1986) 10 FCR 226

Dey v Victoria Railway Commissioner's (1949) 78 CLR 62

Evans v Bartlam [1937] AC 473

Ezekiel-Hart v Law Society of the Australian Capital Territory (2010) 173 ACTR 15

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

Gamble v Killingsworth [1970] VR 161

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Harris v Caladine (1991) 172 CLR 84

House v The King (1936) 55 CLR 499

Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637

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

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

Mahenthirarasa v State Rail Authority of New South Wales(No 2) (2008) 72 NSWLR 273

Manton v Cantwell [1920] AC 781

McDonald v South Australia [2011] FCA 297

Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333

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

Mutual Life & Citizens” Assurance Co Ltd v Evatt (1968) 122 CLR 556

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

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

Niven v Grant (1903) 29 VLR 102

Northern Territory v Mengel (1996) 185 CLR 307

Perre v Apand Pty Ltd (1999) 198 CLR 180

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

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

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Ramsay v Pigram (1968) 118 CLR 271

Ryan v Adams (1993) 112 FLR 474

Saltoon v Lake [1978] 1 NSWLR 52

Scott v Handley (1999) 58 ALD 373

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

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

Tobes v Fleet [2011] ACTSC 122

Walton v Gardiner (1993) 177 CLR 378

Williams v Spaatz (1992) 174 CLR 509

Worchild v University of Queensland Law Society Inc (2006) 234 ALR 179

Court Procedures Act 2004 (ACT), s 33

Discrimination Act 1991 (ACT), ss 8, 72

Human Rights Act 2004 (ACT), s 40C(4)

Legal Profession Act 2006 (ACT), ss 44, 81, 576(2), 587A

Legislation Act 2001 (ACT), ss 160(1), 151(3)

Constitution (Cth), s 117

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

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

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

Supreme Court Rules 1937 (ACT)

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

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

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

PROFESSIONS AND TRADES — lawyers — grant of practising certificate by Law Society of the Australian Capital Territory — whether breach of duty in exercise of power to grant certificates.

PROCEDURE — Supreme Court Procedure — default judgment — date when judgment may be entered — setting aside for irregularity.

PROCEDURE — Supreme Court Procedure — abuse of process — whether subsequent proceedings constitute an abuse of process.

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

ORDER

THE COURT ORDERS THAT:

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

2. The Statement of Claim be struck out.

3. Judgment be entered for the defendants.

4. The parties be heard as to costs.

INTRODUCTION

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

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

3 In late 2008, he decided to commence practice on his own account and, in order to do so, applied on 11 August 2008 for an unrestricted practising certificate also under s 44 of the Legal Profession Act. The first defendant, the Law Society of the Australian Capital Territory (the Law Society), responded, setting out some requirements before Mr Ezekiel-Hart could commence practice on his own account.

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

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

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

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

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

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

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

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

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

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

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

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

16 Essentially, the defendants say that:

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

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

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

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

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

APPEAL FROM THE REGISTRAR

18 Under r 6256 of the Court...