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

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge ACJ
• Judgment Date: 10 August 2012
• Docket Number: No. SC 640 of 2011
• Date: 10 August 2012

[2012] ACTSC 135

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge ACJ

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 D Hijazi

AON Risk Services (Australia) Ltd v Australian National University (2008) 227 FLR 388

Board of Examiners v XY (2006) 25 VAR 193

Day v Mercedes-Benz Australia Pty Ltd [2010] FCA 1183

Dubbo Refrigeration Co v Rutherford (1898) 14 WN (NSW) 180

Edwards v Stocks (2009) 17 Tas R 454

Ezekiel-Hart v The Law Society of the Australian Capital Territory and Ors [2012] ACTSC 103

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

Golski v Kirk (1987) 14 FCR 143

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 427

Johnsen v Duks [1963] NSWR 730

Northern Territory Fuels Pty Ltd v Hart (1985) 73 FCR 405

Re Zagoridis; Ex parte Q'Plas Group Pty Ltd (1990) 27 FCR 108

Russell v Adwan Pty Ltd (2000) ACTR 1

Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450

Woods v Walsh (1989) 22 FCR 204

Anlaby v Praetorius (1888) 20 QBD 764

Calderbank v Calderbank [1976] Fam 93

Dunnett v Railtrack Plc (in railway administration) [2002] 2 All ER 850

Halsey v Milton Keynes General NHS Trust [2004] 4 All ER 920

Hurst v Leeming [2003] 1 Lloyds Rep 379

J T Stratford & Son Ltd v Lindley [1969] 3 All ER 1122

Lai v Chamberlains [2007] 2 NZLR 7

R (Cowl) v Plymouth City Council [2002] 1 WLR 803

Legal Profession Act 2006 (ACT), ss 81, 383(2), 385, 390, 394(2), 401

Court Procedures Rules 2006 (ACT), rr 1721, 1728

High Court Rules 2004 (Cth), r 41.10

Federal Court Rules, r 40.03

Uniform Civil Procedure Rules 1999 (Qld), r 698

O'Brien, D, Special Leave to Appeal (Supreme Court of Qld Library, 2 ^nd ed, 2007)

PROCEDURE — Costs — Effect of refusal to participate in alternative dispute resolution — Not necessarily relevant to costs order.

PROCEDURE — Costs — Impecunious Unsuccessful Litigant — Not sufficient reasons to deprive successful party of costs.

PROCEDURE — costs — costs of indulgence granted to party — setting aside default judgment — set aside for irregularity — court still retains discretion as to costs.

ORDER

THE COURT ORDERS THAT:

1. Each party pay their own costs of the application and the order of the Registrar made on 21 November 2011 setting aside the default judgment dated 13 October 2011 in respect of which the costs were reserved.

2. Otherwise, the plaintiff pay the costs of the proceedings.

1 On 29 June 2012, I dismissed an appeal commenced by Mr Emmanuel Tam Ezekiel-Hart against a decision of the Registrar, setting aside a default judgment he had secured in these proceedings. I also struck out the Statement of Claim and entered judgment for the defendants: Ezekiel-Hart v The Law Society of the Australian Capital Territory and Ors [2012] ACTSC 103. The facts and circumstances of the matters over which Mr Ezekiel-Hart was suing are set out in those reasons. I do not need to repeat them.

2 On the date of judgment, I granted leave to the parties to file written submissions as to costs: Mr Ezekiel-Hart by 6 July 2012 and the defendants by 13 July 2012. I have now received those submissions, though somewhat late.

3 Mr Ezekiel-Hart sent by email a lengthy document which took issue with a number of findings that I made. That is, of course, not a matter that I can or will consider. It also attached a large bulk of material which included:

• (a) a document headed ‘Plaintiff's Summary of Argument: Statement of [sic] against cost [sic] and questions as was [sic] before the High Court — High Court declined to make costs orders against Mr Ezekiel-Hart’; and

• (b) a copy of the submissions originally filed in accordance with the leave I had given in the substantive proceedings: Ezekiel-Hart v The Law Society of the Australian Capital Territory and Ors at [15].

4 Mr Ezekiel-Hart then filed his written submissions as to costs, but on 17 July 2012. The defendants filed their reply on 18 July 2012. Despite Mr Ezekiel-Hart's submissions being so late, the defendants did not include in their submissions any suggestion I should reject Mr Ezekiel-Hart's submissions. That is an appropriate stance by a body such as the Law Society of the Australian Capital Territory (Law Society). Accordingly, I have had regard to both sets of submissions.

THE SUBMISSIONS OF MR EZEKIEL-HART

5 Mr Ezekiel-Hart relied on his earlier submissions (being (b) in [3] above). I have described them in my judgment: Ezekiel-Hart v The Law Society of the Australian Capital Territory at [119]. They were very difficult to read or to understand the points he was making. I have read them again and they are no clearer or easier to read.

6 They do not address the issue of how I should exercise my discretion as to the costs of my order of 29 June 2012. They are simply silent on that. They provided no assistance.

7 Mr Ezekiel-Hart also referred to the other document attached to his email (being (a) in [3] above). It repeated the history of the proceedings, but not in a way that seemed relevant to costs. It then referred to ‘Reasons why an order for costs should not be made in favour of the respondent [sic]’.

8 The reasons may be summarised as follows:

• (a) the defendants should not have their costs because the Law Society, while ‘[professing] rule of Natural Justice Procedural Fairness’ allegedly made a decision that ‘denied the appellant [sic] right to be heard’;

• (b) while s 401 of the Legal Profession Act 2006 (ACT) empowered the Law Society to refer a matter to mediation, the Law Society had allegedly refused to mediate this matter, thus meaning it would ‘reward a person’ (presumably the defendants) who sought to increase the burden of cases in the court though the person prefers otherwise in public;

• (c) the Law Society is said to have issued an Unrestricted Practising Certificate to Mr Ezekiel-Hart after the proceedings had commenced; and

• (d) making an order for costs in the Defendants” favour would ‘mean institutionalizing oppression in the community’ because, the argument appeared to be, ‘[a] poor person [who] may seek redress against an oppressor can be technically manipulated after a more powerful person had [sic] been oppressive and adamantly unreasonable.’

9 Mr Ezekiel-Hart then submitted that the submissions should be read in the light of the fact that the High court had declined to make a costs order against him when it refused him special leave to appeal: Ezekiel-Hart v The Law Society of the Australian Capital Territory [2010] HCASL 210.

10 Mr Ezekiel-Hart then referred to the Law Society ‘benefitting from 5 consecutive adjournments one of which none of their lawyers attended’. I can only assume that these were in the earlier proceedings, since there were, including the appearance in Court to take judgment, and including the appearance before the Registrar when judgment was set aside, only five appearances all together in these proceedings, only one of which was an adjournment, and at all of which the defendants were represented. What happened in those earlier proceedings, especially of the kind to which Mr Ezekiel-Hart has referred, is irrelevant to the costs of these proceedings.

11 Mr Ezekiel-Hart also referred to a passage from the decision of the Supreme Court of New Zealand in Lai v Chamberlains [2007] 2 NZLR 7, though Mr Ezekiel-Hart referred to it for the some reason as Chamberlains v Lai.

12 That decision, however, concerns the immunity from suit of barristers and the Court there held that it could no longer be retained in its present form. In the course of their reasons, the plurality, Elias CJ and Gault and Keith JJ, referred to whether avoiding abusive collateral challenge is sufficient protection of the integrity of the justice system. Their Honours commented (at 41; [73]):

Any loss suffered by one party as a result of negligence in representation can be properly addressed by a claim against the advocate without vexing the other party further and without distorting the system of civil justice.

13 Mr Ezekiel-Hart prefaced this quotation with a question: ‘Whether it is equitable for Mr Ezekiel-Hart to pay the law society costs [sic] for the ACT Supreme Court granting to him default judgment against the ACT Law Society and Others?’ He did not answer the question, presumably suggesting it was rhetorical.

THE DEFENDANTS” SUBMISSIONS

14 The defendants submitted that Mr Ezekiel-Hart's submissions appear to travel outside the directions and, to that extent, should be ignored.

15 They addressed the issue of the situation in the High Court, to which I refer below. They there submit that there is no reason why the court should depart from the usual order and that Mr Ezekiel-Hart should be ordered to pay the defendants” costs.

CONSIDERATION

16 I do not need to canvass every issue raised for the reasons advanced by the defendants but consider that the following six matters need to be addressed:

High Court proceedings

17 The way in which Mr Ezekiel-Hart framed his submissions suggested that I should follow the decision of the High Court which declined to make an order for costs against him, despite dismissing his application for special leave to appeal against the decision of the Court of Appeal dismissing the appeal from the Chief Justice in turn dismissing the first set of proceedings in which he had sued the defendants for, as I found, essentially the same claims as in these proceedings.

18 The decision of the High Court made no mention of costs. That, it appears, is because...