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ACT CIVIL & ADMINISTRATIVE TRIBUNAL
EZEKIEL-HART v REIS AND ANOR (Appeal) [2017] ACAT 76
AA 5/2017
Catchwords: APPEAL – discrimination complaint – race and political conviction – access to premises – decision not to renew practising certificate – whether appeal should be subject to summary dismissal – whether unfavourable treatment – whether arguable breach of requirements of procedural fairness relevant
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 32, 79, 82Discrimination Act 1991 ss 7, 8, 15, 19, 20, 16Human Rights Commission Act 2005 s 53ALegal Profession Act 2006 ss 11, 36, 44, 47, 69
SubordinateLegislation cited: ACT Civil and Administrative Tribunal Procedural Rules 2009
(No.2) r 21(c)
Cases cited: Barlow v Law Society [2017] ACTSC 35Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576Ezekiel-Hart v The Law Society of the ACT [2014] FCCA 658Fox v Percy (2003) 214 CLR 118Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275Hart v Reis [2017] ACAT 3Huang v University of New South Wales [2014] FCA 1137Kioa v West (1985) 159 CLR 550Law Society v Legal Practitioner 2 [2016] ACAT 120Legal Practitioner RH v Council of the Law Society of the ACT [2016] ACAT 94Spencer v Commonwealth (2010) 241 CLR 118Singh v Owners Strata Plan No. 11723 (No.3) [2012] FCA 1121Zegarac v Dellios [2007] FCAFC 58
Tribunal: Acting Presidential Member R Orr QC
Date of Orders: 21 September 2017
Date of Reasons for Decision: 21 September 2017
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AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 5/2017
BETWEEN:
EMMANUEL EZEKIEL-HARTAppellant
AND:
ROBERT REIS First Respondent
COUNCIL OF THE LAW SOCIETY OF THE ACT Second Respondent
TRIBUNAL: Acting Presidential Member R Orr QC
DATE: 21 September 2017
ORDERThe Tribunal orders that:
1. The application under section 32 of the ACT Civil and Administrative Tribunal
Act 2008 by the respondents is dismissed.
2. The appeal is dismissed.
………………………………..President G Neate AM
Delivered for and on behalf of the Tribunal
REASONS FOR DECISION
1. In these proceedings, Emmanuel Ezekiel-Hart (Mr Ezekiel-Hart or appellant,
who was the applicant in the original tribunal proceedings) appeals against a
decision of the ACT Civil and Administrative Tribunal in Ezekiel-Hart v Reis
[2017] ACAT 3 by Senior Member L Beacroft (original tribunal decision).
Mr Ezekiel-Hart made a complaint under the Discrimination Act 1991
(Discrimination Act) on the grounds of race and political conviction
discrimination, vilification and victimisation.1 The complaint was against
Robert Reis (Mr Reis or the first respondent), and The Council of the Law
Society of the Australian Capital Territory, (Law Society or the second
respondent) which is Mr Reis’ employer.
2. The complaint as determined by the original tribunal raised two events:
(a) the treatment of Mr Ezekiel-Hart in relation to access to the premises of
the Law Society on 23 February, 2016 (access to premises claim); and
(b) the decision of the Law Society on 21 March 2016 not to renew
Mr Ezekiel-Hart’s practising certificate (practising certificate claim).
The complaint concerned direct discrimination2 in the areas of professional or
trade associations, access to premises, and goods, services and facilities.3
3. In summary, the original tribunal found that there was no unfavourable
treatment for the purposes of the Discrimination Act in relation to the access to
premises claim. At any rate, if there was unfavourable treatment it was not on
the basis of race or political conviction. Also, the original tribunal found that in
relation to the practising certificate claim, the decision not to approve the
appellant’s application was not because of race or political conviction. The
original tribunal considered the evidence and could not draw a reasonable and 1 Discrimination Act, sections 7, 8, 67A and 682 Ezekiel-Hart v Reis [2017] ACAT 3 at [20]; Discrimination Act, section
83 Ezekiel-Hart v Reis [2017] ACAT 3 at [22]; Discrimination Act
sections 15, 19 and 20. It may be that section 16 concerning qualifying bodies was also relevant, see the original tribunal decision at [86]
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definite inference of racism from the circumstances. The tribunal found that
there was no victimisation or vilification of the appellant.4
4. This decision concerns both an application under section 32 of the ACT Civil
and Administrative Tribunal Act 2008 (ACAT Act) by the respondents to
dismiss summarily the appeal by Mr Ezekiel-Hart, and the substantive appeal by
Mr Ezekiel-Hart.
Summary of appeal decision
5. The basis of Mr Ezekiel-Hart’s appeal was in parts difficult to understand.
Insofar as it could be understood, Mr Ezekiel-Hart did not put forward any
grounds for overturning the original tribunal decision. The appeal is therefore
dismissed. In view of this decision it is not necessary to determine whether to
dismiss summarily the appeal under section 32 of the ACAT Act.
Background
6. Much of the background to this matter is set out in the original tribunal decision.
In summary, in a letter dated 29 June 2016 the ACT Human Rights Commission
referred a complaint by Mr Ezekiel-Hart to the ACAT under section 53A of the
Human Rights Commission Act 2005.5
7. There had been significant previous history between the parties. Mr Ezekiel-
Hart had made various applications in various courts in relation to actions of the
Law Society.6 However, none of these cases concerned the events specifically in
issue in the original tribunal decision and this appeal.
8. In the original tribunal proceedings, on 11 October 2016 the respondents
applied to have the application by Mr Ezekiel-Hart dismissed in whole or in part
under section 32 of the ACAT Act because he “has been declared vexatious by
the Federal Court of Australia”, and/or because it was an “abuse of process”
given the issues had been dealt with in prior proceedings. The original tribunal
made orders dated 14 November 2016 that dismissed “…so much of the
Complainants application that relates to the discrimination complaint dealt with
by Neville J in Ezekiel-Hart v The Law Society of the ACT [2014] FCCA 658, 4 Ezekiel-Hart v Reis [2017] ACAT 3 at [2]5 Ezekiel-Hart v Reis [2017] ACAT 3 at [3]6 Ezekiel-Hart v The Law Society of the ACT [2014] FCCA 658 at [40]
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delivered on 4 April 2014.” In effect this resulted in the original tribunal
considering the appellant’s allegations in regard to two events that occurred
during 2016, the access to premises claim and the practising certificate claim.7
9. A hearing on these issues was held on 21 and 22 November 2016. As noted at
paragraph [4] above, in the original tribunal decision the complaints of
Mr Ezekiel-Hart were not upheld. Particular aspects of the findings of the
original tribunal are discussed further below.
Appeal proceedings
10. Mr Ezekiel-Hart lodged an application for appeal against the original decision
dated 15 February 2017. This application attached a document entitled ‘Reasons
for Appeal’ (15 February document). This document is very long, 65 pages,
dense and it is difficult to discern the specific bases of the appeal.
11. At a directions hearing on 22 February 2017, a direction was made that the
appeal be dealt with as a review of the original decision.8 In an attempt to deal
with the difficulties created by the 15 February document, Mr Ezekiel-Hart was
ordered to file and serve “a document setting out the reasons for appeal by
reference to paragraphs of the decision appealed against identifying the alleged
errors of fact or law …” (direction 3). Mr Ezekiel-Hart provided what purported
to be such a document on about 8 March 2017 (8 March document). However,
this was also very long, 82 pages, repeated much of the material in the earlier
15 February document, was dense and it remained difficult to discern the
specific bases of the appeal. For the most part this document failed to set out the
reasons for appeal by reference to paragraphs of the decision appealed against
identifying the alleged errors of fact or law, as required by the tribunal’s
direction.
12. The respondents made an application for interim or other orders dismissing
summarily the appeal under section 32 of the ACAT Act. This was heard on
12 April 2017. The application was dismissed, but with leave to make a further
application if necessary. Mr Ezekiel-Hart was directed to provide a further
document setting out each ground or reason for the appeal; a specific reference
7 Ezekiel-Hart v Reis [2017] ACAT 3 at [8]-[10]8 See section 82 of the ACAT Act
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to the relevant paragraph or paragraphs in the original decision appealed
against; the errors of fact or law in relation to that reference in the original
decision; in a document no more than 20 pages long. There was also an
application for interim or other orders by Mr Ezekiel-Hart heard on 12 April
which was dismissed.
13. Mr Ezekiel-Hart provided a further document dated 5 May 2017 entitled
‘Applicant/Appellant Grounds of Appeal’ (5 May document). Notwithstanding
the clear terms of the order made on 12 April it was 29 pages long. There was in
it some attempt to identify relevant findings of the original tribunal which were
challenged, and some attempt to identify evidence, though it is hard to find a
paragraph which does so in relation to the same issue. The Tribunal has focused
on this document in this decision since it is the shortest and most
comprehensible document provided by Mr Ezekiel-Hart. He also provided a
document headed ‘Applicant/Appellant Submissions’ dated 5 May 2017 which
was a further 17 pages long; a reply dated 27 May 2017 which was 15 pages
long; and a list of authorities 12 pages long. Mr Ezekiel-Hart also provided a
document entitled ‘The finding that the Appellant wants this Tribunal to find
and substitute,’ which was treated as a submission.9
14. The respondents made a further application under section 32 of the ACAT Act
for an order summarily dismissing the appeal dated 22 May 2017. This
application and the appeal were heard together on 1 June 2017. The respondents
indicated that they thought it appropriate to hear oral argument on both the
summary dismissal and substantive appeal in order to finalise the proceedings as
cost-effectively and expeditiously as possible. This was the course adopted.
They provided a document entitled ‘Respondents’ written submissions on the
appellants appeal’ (respondents’ submissions).
15. After the hearing Mr Ezekiel-Hart provided supplementary submissions in
relation to some matters (appellant’s supplementary note) as did the
respondents (respondents’ supplementary note).
9 Transcript of proceedings, 1 June 2017, page 5
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Summary dismissal application
16. As noted, the respondents again seek orders under section 32 of the ACAT Act.
Section 32 provides that the tribunal may dismiss an application or part of an
application that it believes is frivolous or vexatious, lacking in substance, or
otherwise an abuse of process.
17. The respondents submitted that the notice of appeal, even with the further
‘particulars’ in the 5 May document, was embarrassing, not particularised,
incomprehensible and does not identify a matter of substance or an appealable
error.10
18. An application for summary dismissal under section 32 of the ACAT Act is
similar to strike out or summary dismissal proceedings in a court. Such
proceedings are subject to a high threshold, generally that there is no cause of
action or no ground of appeal. As French CJ and Gummow J stated in Spencer v
Commonwealth, the exercise of “powers to summarily terminate proceedings
must always be attended with caution.”11
19. The respondents pointed out the need for an appropriate notice of appeal under
rule 13(e)(iv) of the ACT Civil and Administrative Tribunal Procedural Rules
2009 (No.2) which requires the notice of appeal to state “briefly, but
specifically, the grounds relied on in support of the appeal”. It was submitted
that the approach of the Federal Court to such requirements should be adopted;
namely that non-compliance with the rule does not of itself render an appeal
incompetent; but if the notice is also incomprehensible or unrelated to the
judgment, an appeal may be dismissed.12 Reference was also made to the
decision of Justice Penfold in Barlow v Law Society ACT.13
20. The respondents also submitted that Mr Ezekiel-Hart had been given three
chances to file proper grounds of appeal and still had not done so. They noted
that a range of other proceedings brought by Mr Ezekiel-Hart had not been
10 Respondents’ submissions at [4]11 Spencer v Commonwealth (2010) 241 CLR 118 at [24]12 Zegarac v Dellios [2007] FCAFC 58 at [7]; Singh v Owners Strata
Plan No. 11723 (No.3) [2012] FCA 1121 at [25]; Huang v University of New South Wales [2014] FCA 1137 at [53]-[54]
13 [2017] ACTSC 35
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heard on their merits but summarily dismissed. It was argued that further
indulgences should not be afforded, since while a court or tribunal has a duty to
an unrepresented litigant, there is also an obligation is to ensure a fair trial for
all parties. The respondents also noted the fact that Mr Ezekiel-Hart had in fact
been admitted to practice as a lawyer for some period, and the objects of the
ACAT Act. 14
21. The arguments of the respondents are clearly and strongly made. But there are
some further factors to be considered. As noted above, in the original tribunal
proceedings the respondents applied to have the application dismissed in whole
or in part under section 32 of the ACAT Act. While in part successful, the
original tribunal allowed the matter to proceed and considered Mr Ezekiel-
Hart’s complaint in regard to two events that occurred during 2016, namely the
access to premises claim and the practising certificate claim. The key findings
of the original tribunal are clearly and concisely set out in the original tribunal
decision, see especially at [71]-[88].
22. But in relation to these findings, under section 79(3) of the ACAT Act, a party
to the original application may appeal the decision of the tribunal on a question
fact or law, that is any question of fact or law. Under section 82, an appeal
tribunal may deal with an appeal as a new application or as a review of all or
part of the original decision on the application by the tribunal; as noted above
this appeal is on the basis of a review of the original decision. The tribunal’s
appeal jurisdiction is therefore broad, and somewhat different to that of the
Supreme Court or Federal Court; there is some basis for thinking the approach
to summary dismissal applications should also be different. Having been able to
pursue his complaint before the original tribunal, notwithstanding an application
under section 32, it seems appropriate to try to determine an appeal on any
question of fact or law from that decision if possible.
23. More generally, the tribunal’s jurisdiction involves a very wide range of
matters. These include not only discrimination complaints, but also, for
example, mental health, landlord and tenant, guardianship, and small claims
14 Respondents’ submissions, paras [24]-[31]; Huang v University of New South Wales [2014] FCA 1137 at [27]
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matters, and challenges to a wide range of government decisions. Many of the
litigants before the tribunal are unrepresented people, who are disadvantaged in
some way. There are also a range of litigants from different cultural
backgrounds, and these can have an impact on their ability to participate in
proceedings. In exercising its functions, including appeal functions, regard
should be had to this reality. Under section 7 the tribunal is to ensure its
procedures are as simple and informal as is consistent with achieving justice
(see also section 6). Noting of course that the proceedings need to be conducted
fairly and rationally, it would be inappropriate to impose requirements in
relation to proceedings which many litigants could not meet, and which would
subvert the access to justice rights of those for whom the tribunal exists.
24. Further, in this case it would require significant time and effort to determine
whether each paragraph of the 5 May document is embarrassing, not
particularised and incomprehensible and does not identify as a matter of
substance an appealable error. Some are incomprehensible. Others for various
reasons are irrelevant. But there are some paragraphs of the 5 May document
which do indicate a comprehensible ground of appeal in light of the terms of the
original tribunal decision. It does not seem an appropriate or efficient use of
resources to spend significant time in analysing whether each paragraph could
or should be the subject of a section 32 order on a preliminary basis; and then
proceeding with the balance at a later time. Rather it would seem a more
appropriate and efficient course for the Tribunal to simply determine as best as
it can whether those grounds which can be understood and are relevant have
been made out.
25. As discussed below, the Tribunal is of the view that none of those
comprehensible and relevant grounds are made out. The Tribunal notes that if it
had reached a view that the appellant had made out an arguable ground of
appeal, it would have given the respondents an opportunity to respond before
making a final decision; this step however was not necessary.
26. For these reasons is not necessary to determine the application to dismiss
summarily the appeal under section 32 of the ACAT Act. That application can
be dismissed.
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Substantive appeal
27. As noted, some of the arguments raised by Mr Ezekiel-Hart are understandable,
and can be dealt with. There are however some general points to be made in
relation to these arguments.
28. First, as noted this appeal is being dealt with under section 82(b) of the ACAT
Act as a review of the original decision, not as a new application. The appellant
must show an error of fact or law that justifies the original tribunal decision
being varied or reversed.15 There is no requirement that the error be manifest,
obvious or other than an error discernible by a proper assessment of the
evidence and the law.16 But Mr Ezekiel-Hart must show some factual or legal
error.
29. Second, the original tribunal’s decision turned to some extent on an assessment
of the evidence of witnesses. No additional evidence was sought to be presented
in the appeal.17 In these circumstances there are significant difficulties in
Mr Ezekiel-Hart being successful in relation to the original tribunal’s
assessment of the evidence of witnesses.18
30. Third, Mr Ezekiel-Hart made a complaint of direct discrimination in the original
tribunal proceedings.19 In the appeal he suggested that his complaint also
involved indirect discrimination.20 As the original tribunal decision makes clear
at [20], this was not the case.21 Further, he did not articulate the necessary
elements for indirect discrimination under section 8(3) of the Discrimination
Act, namely a condition or requirement that has the effect of disadvantaging
him because of his race or political convictions. In these circumstances it is not
15 Legal Practitioner RH v Council of the Law Society of the ACT [2016] ACAT 94 at [19]-[20]; quoting The Tenant v Commissioner for Social Housing [2016] ACAT 49
16 Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [35]-[38]
17 Rule 21(c) of the ACT Civil and Administrative Tribunal Procedural Rules 2009 (No.2) allows this
18 Fox v Percy (2003) 214 CLR 118 at [73]; Legal Practitioner Council of the Law Society of the ACT [2015] ACTSC 316 at [83]
19 Ezekiel-Hart v Reis [2017] ACAT 3 at [20]20 Transcript of proceedings, 1 June 2017, page 1021 See also transcript of proceedings, 21 November 2016, page 4
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appropriate that an indirect discrimination complaint be allowed to be pursued
in this appeal.
31. Fourth, the original tribunal found at [78] that “the applicant contended that the
Tribunal should infer racial discrimination had occurred because ‘there is no
other reason for such inequitable treatment.’” Mr Ezekiel-Hart seemed to
continue to pursue this argument in the appeal.22
32. Further, the original tribunal noted in this context that Mr Ezekiel-Hart “raised
that the history of events between him and the respondents which he contended
continued in 2016 whereby he ‘continued to be treated in the manner than I am
being treated demonstrated racial discrimination’”.23 Some of these earlier
events are set out at [46] of the original decision. The original tribunal found
however that “there was no evidence of acts by the respondents that even
suggested racism” (at [78]). The one potential piece of evidence, the reference
to “Blackman status,” is discussed at paragraph [79] of the decision; whilst
raised, no basis was provided for overturning the finding in relation to this
specific piece of evidence.24
33. In this appeal, Mr Ezekiel-Hart also raised a range of events prior to the two
events the subject of the proceedings, the access to premises and practising
certificate claim.25 The relevance of these earlier events was not always clear;
the evidence in support of Mr Ezekiel-Hart’s version of these was seldom
specified; the relevant finding of the original tribunal which was sought to be
challenged seldom if ever identified. These issues are often raised in the form of
questions without suggesting any answer or ground of appeal; sometimes there
is an answer but with no factual or legal basis for the answer provided;
occasionally there is a reference to facts or evidence “specified below”, but
22 5 May document, page 12, paragraph (uu)23 Ezekiel-Hart v Reis [2017] ACAT 3 at [44]24 5 May 2017 document, page 20, paragraph 2(u)25 5 May document, page 1, paragraph 1 and 2; page 3, paragraphs (1)
(a) and (b); page 4, paragraphs (1)(c),(e),(f), (g), (h) and (i); page 5, paragraphs (1)(j), (k) and (m); page 12, paragraph (uu); page 15, paragraph (jjj); page 19, paragraph (o) and (p); page 20, paragraphs (r), (s), (t) and (u); page 23, paragraph (cc)
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without any indication as to where that is. As an example of some of these
attributes, the first paragraph of the 5 May document states in full:
Following the Appellant’s 3 July 2008 Unrestricted Practising Certificate Application, on 21 July 2008 the Executive Director wrote “your latest application was considered by the Executive Committee as its meeting on 16 July 2008 … By my calculations you will be eligible to apply for an unrestricted practising certificate in early August 2008, assuming you continue to work three days a week for Ray Swift Moutrage & Associates”. Fact
34. It seems that Mr Ezekiel-Hart’s argument in the appeal was that prior acts of
racial discrimination, or at least inappropriate treatment, by the Law Society and
its officers were evidence in support of his argument that the specified acts were
acts of discrimination, or at least that an inference to this effect should be
drawn.26 This line of argument was open to him. But in order to establish it he
needed to specify the evidence in relation to the prior events; why the
respondents’ evidence in relation to these events, and court decisions in relation
to them, should not be accepted; why on the basis of this evidence these events
amounted to discrimination or at least inappropriate treatment; and why this
showed that the specified acts the subject of these proceedings were
discriminatory, contrary to the Law Society’s evidence and arguments. He did
not do this, as the example in paragraph [33] shows. Therefore none of these
references to past events provide an arguable ground of appeal.
35. Fifth, some of the grounds appear to seek to challenge earlier court decisions27;
as in the original tribunal proceedings this is not a matter which can be pursued
in these proceedings.
36. Sixth, some grounds simply refer to a case and assert that the original tribunal
proceeding was inconsistent with it without any elaboration;28 this is not a
proper ground of appeal.
26 See for example in the 5 May document, page 9 paragraph (hh) 27 For example, see 5 May document, page 28, paragraph 1128 See for example in the 5 May document, page 26, paragraph 7
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Access to premises claim
37. In the access to premises claim Mr Ezekiel-Hart alleged that he attended the
Law Society premises to sort out a problem he had encountered when trying to
submit his 2016 online application for a practising certificate; he was at first
assisted to do so and given access to an area behind reception; but was then told
to leave. These basic facts seem to be accepted, but details of this event were
subject to conflicting evidence between the parties and amongst respondent
witnesses.29
38. The original tribunal accepted that whatever problem Mr Ezekiel-Hart had in
submitting his online application, after his attendance at the premises of the Law
Society he later did successfully submit an online application, and therefore
there was no unfavourable treatment as required by section 8(2) of the
Discrimination Act. Mr Ezekiel-Hart seems to have sought to challenge this
finding, though he did not do so particularly clearly.30 It would have been much
more appropriate for Mr Ezekiel-Hart to simply say that his ground of appeal
was that the original tribunal made an error in deciding at [72] that there was no
unfavourable treatment, because exclusion from the premises of itself was
unfavourable treatment; but for whatever reason Mr Ezekiel-Hart did not do
this.
39. But even if more clearly and precisely raised, this would not have assisted him,
since in the alternative, the original tribunal found that if there was unfavourable
treatment by the respondents on 23 February 2016, it was not due to the
appellant’s race or political convictions. Even if Mr Reis did direct the early exit
of the appellant from the secure area of the Law Society’s premises, which was
contested, there was no evidence that this was due to the appellant’s race or
political conviction. Rather, Mr Reis gave oral evidence that he feared the
appellant and on this basis did not want him in the secure areas of the Law
Society’s premises.31
29 Ezekiel-Hart v Reis [2017] ACAT 3 at [32]-[38], [56]-[57], [71]-[75]30 5 May document, page 8, para (cc); page 15, paragraphs (hhh) and
(iii)31 Ezekiel-Hart v Reis [2017] ACAT 3 at [73]-[75]
12
40. Insofar as there is a challenge to these findings, Mr Ezekiel-Hart provided no
basis for overturning them.32 Perhaps he thought that by addressing earlier acts
he was doing so, but for the reasons given in paragraphs [31]-[34] above, his
approach to this was inadequate to support any appeal.
41. In the original tribunal hearing the focus was on the denial of access on
23 February 2016. In the appeal Mr Ezekiel-Hart raised the more general denial
of future access. Mr Ezekiel-Hart argued that Mr Reis admitted that he gave
instructions to deny him future access. It is true that Mr Reis stated that
Mr Ezekiel-Hart’s presence in the secure area “was in order on that occasion but
in the future he should not be permitted in the secure area”.33 Further as the
original tribunal noted at [37] the Law Society’s bookkeeper gave evidence that
when she told Mr Reis about Mr Ezekiel-Hart’s visit he responded: “That’s OK,
but because the Law Society has a number of difficult issues with him at the
moment he should not generally be allowed in the secure area.”
42. There may be a stronger case that this apparent denial of future access was
unfavourable treatment. But it is not necessary to resolve this. As noted, the
original tribunal held that, if there was unfavourable treatment by the
respondents, there was no evidence that this was due to the appellant’s race or
political convictions. This is also the case in relation to the denial of future
access. Mr Reis stated that the reason for the direction about future access
included “threats that had been made by Mr Ezekiel-Hart in writing to a variety
of people including myself.”34 This view was criticised by Mr Ezekiel-Hart as
being over-reactive. It is noted that Mr Reis admitted that no threats had been
made since 2013.35 But there are no bases for overturning the finding of the
original tribunal, or making a finding that the alleged denial of future access
was due to the appellant’s race or political convictions.
32 5 May document, page 6, paragraphs (u), (v), (w)33 5 May document, 2017, page 4, paragraph (d); transcript of
proceedings 22 November 2016, page 20834 Transcript of proceedings, 22 November 2016, pages 208-20935 Transcript of proceedings, 22 November 2016, pages 212-213
13
Practising certificate claim
43. Mr Ezekiel-Hart made a complaint about the decision to refuse him a renewal of
his practising certificate. On this issue the original tribunal accepted that there
was unfavourable treatment, namely not approving the application. The disputed
issue was whether it was because of the appellant’s race or political convictions.
The original tribunal found that there was no evidence that race or political
conviction were reasons for this adverse decision by the Law Society. Rather
there was a coherent well-evidenced basis to the second respondent’s decision
which was set out by the respondents in their evidence as summarised at [41]-
[50] and [76] of the original tribunal decision.
44. Mr Ezekiel-Hart in effect challenged this finding. A key basis for doing so was
that he was denied procedural fairness in the decision-making process; he stated
that Mr Reis failed to enable him to comment on the grounds relied on to make
the recommendation against him.36
45. As the original tribunal noted, a key document at the meeting on 21 March 2016
where the relevant decision was made was a professional standards
memorandum dated 17 March 2016, with seven attachments (Memorandum),37
which was drafted by Mr Reis.
46. The information attached to the Memorandum included Mr Ezekiel-Hart’s
application. He was asked to confirm some details in a letter from the Law
Society dated 8 March 2016; these matters did not go to the substantive grounds
of the refusal; he replied by email dated 9 March. It appears that Mr Ezekiel-
Hart was given no opportunity to respond to the substantive grounds of the
refusal.38 This was arguably was a failure to accord him procedural fairness.39
Bankruptcy basis for refusal
47. One matter raised in the Memorandum was that Mr Ezekiel-Hart was an
undischarged bankrupt. As set out at [6] of the original tribunal decision, the 36 5 May document, page 5, paragraph (p); page 9 paragraph (gg); page
22, paragraph 2(aa)37 Respondents’ second tender bundle, tab 2; Ezekiel-Hart v Reis [2017]
ACAT 3 at [59]38 Respondents’ second tender bundle39 Kioa v West (1985) 159 CLR 550; Commissioner for Australian
Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
14
Law Society had a significant accumulated sum of costs orders concerning
Mr Ezekiel-Hart, and filed for bankruptcy on the basis of these. He became
bankrupt on 6 June 2013, and apparently remained so at the time of the original
tribunal decision. 40
48. Mr Ezekiel-Hart suggested that it was indicated in the bankruptcy proceedings
that this would not be taken into account in relation to decisions concerning his
practising certificate.41
49. In the appellant’s supplementary note he referred to the decision in Ezekiel-Hart
v Law Society (ACT) [2014] FCCA 400. This concerned three applications: an application for review of a decision dismissing an application to set aside a bankruptcy notice; an application for review of a decision to make a sequestration order by Registrar Wall; and an interim application for a stay. At [18] of the
decision Neville J was outlining the complex procedural history of the matter,
and stated in relation to the consideration by the court of preliminary matters on
21 June 2013, that the “first matter addressed on that occasion was confirmation that, in relation to the stay sought by Mr Ezekiel-Hart, Mr Hijazi (solicitor for the Respondents) confirmed that the Law Society of the ACT would take no action regarding the Applicant's practising certificate based on the sequestration order made by Registrar Wall.” There is a footnote to the relevant transcript, which was not provided. It appears from the comments at [21] of the decision that some form of stay was granted at the 21 June 2013 preliminary hearing. In the substantive proceedings however all the applications were dismissed, including the application for the stay. Although not completely clear, this suggests that some form of relevant undertaking was given at some time, but was superseded by a
40 National Personal Insolvency Index, extracted 4 November 2016, in the respondents’ tender bundle, tab 1
41 5 May document, page 6, paragraph (r); page 9, paragraph (ff); page 18, paragraph 2(l); page 27, paragraph 9; transcript of proceedings, 1 June 2017, pages 30-32
15
stay, the substantive application for which was in due course dismissed.
50. This seems to be supported by the evidence of Mr Reis in the original tribunal
hearing where in cross-examination about the statement at [18] in Hart v Law
Society (ACT) [2014] FCCA 400 he stated:
Mr Hijazi would’ve been acting on the society’s authority to say that but I think … that … was in the context of certain matters that were going on in the forum at that time but following – following the outcome of whatever this interlocutory or other proceeding was completed, we were entirely entitled to proceed. But I think this is addressing that at the time that the society would not be taking any – any action, that’s my recollection.42
51. The respondents submitted in their supplementary note that the allegation that
anyone for the Law Society represented that if Mr Ezekiel-Hart were made
bankrupt, that fact would not be used against him to deny him a practising
certificate is false and wholly unsubstantiated.43 As noted in paras [49] and [50]
above it seems likely that in fact a relevant undertaking was given, but that it
was superseded by later orders of the court, and that no undertaking or stay was
in place at the time of the practising certificate decision.
2013 complaint basis for refusal
52. A second matter put against Mr Ezekiel-Hart in the Memorandum were
complaints made against him in a draft application for disciplinary action,
apparently attached to a letter dated 19 August 2015, but dealing mainly with
events in 2013 (2013 complaint).
53. The original tribunal found that the material before the Council did not include
Mr Ezekiel-Hart’s response to the 2013 complaint against him. However the
tribunal noted that the respondents contended that this was not essential to the
decision-making of the Council given the objective nature of many of the
matters before Council, for example that the appellant was bankrupt and had an
unresolved complaint against him.44 The respondents also argued that the
complaint raised legitimate issues; had not been processed to conclusion; and
42 Transcript of proceedings, 22 November 2016, page 27943 Respondents’ supplementary note 44 Ezekiel-Hart v Reis [2017] ACAT 3 at [59]
16
that progressing the complaint was difficult because the appellant was
overseas.45 The original tribunal did not specifically accept these arguments, but
rather decided the matter on the basis that there was no evidence of racial
discrimination (see below at [59] and [60]).
54. Mr Ezekiel-Hart raised a range of matters in relation to how the 2013 complaint
was considered in the practising certificate decision, in effect suggesting that the
failure to include his response, or to allow him to respond, was a breach of the
rules of procedural fairness.46 He also raised the delay in pursuing the
complaint.47
55. There seems to be a basis for Mr Ezekiel-Hart’s argument that he was not
provided with procedural fairness. If the respondents’ contention is that the
objective fact of the 2013 complaint, and the bankruptcy, did not require the
provision of procedural fairness then it is unconvincing. It is true that under the
Legal Profession Act 2006 (Legal Profession Act), section 11, a ‘suitability
matter’ includes “whether the person is currently subject to an unresolved
complaint, investigation, charge or order under” the Act (section 11(1)(f)) or is
or has been insolvent (section 11(1)(b)). Section 44(4) provides that the Law
Society must not renew a practising certificate if satisfied that the person is not
a fit and proper person to continue to hold the certificate. Under section 36(2),
in considering whether or not a person is a fit and proper person to hold a local
practising certificate, the Law Society may take into account any suitability
matter relating to the person. Therefore the Law Society has a discretion to find
that the appellant is not a fit and proper person based on a complaint and
bankruptcy;48 but there is no obligation to do so. This is an issue in relation to
which the views of Mr Ezekiel-Hart would clearly be relevant. This is the case
notwithstanding that the complaint raised legitimate issues; had not been
processed to conclusion; and that progressing the complaint was difficult
because the appellant was overseas. For the Law Society to decide the renewal
45 Ezekiel-Hart v Reis [2017] ACAT 3 at [60]46 5 May document, page 6, paragraph (q); page 10, paragraph (mm);
page 17, paragraph 2(h)47 5 May document, page 11, paragraph (rr) 48 As argued by Mr Ezekiel-Hart at transcript of proceedings, 1 June
2017, pages 33-34
17
based on its own undetermined complaint without allowing Mr Ezekiel-Hart
any opportunity to respond raises an issue as to whether procedural fairness was
provided.49
Child support basis for refusal
56. A third matter referred to in the Memorandum was a decision of the
Administrative Appeals Tribunal in relation to matters concerning child support
payments. Mr Ezekiel-Hart was also apparently given no opportunity to
comment on this matter. Further he noted that the letter advising him of the
decision dated 5 April 2016 did not mention this matter, suggesting it was not a
basis for the decision, or alternatively that the letter was misleading.50
Failure to make reasonable offers
57. Mr Ezekiel-Hart also argued that the Law Society made reasonable offers to
other lawyers to continue their practice, but no alternative options were
available to him.51 Apparently, Mr Ezekiel-Hart relied on a decision of the
tribunal in Council of the Law Society v Legal Practitioner 252 in this regard,53
and also other cases.54 He referred to section 47 of the Legal Profession Act
which allows for conditions to be imposed on a practising certificate, an option
which was apparently never considered for him.55 He also referred to section
69(1) which provides that if a local legal practitioner has been charged with a
serious offence but the charge has not been decided, the relevant council may
amend the conditions of the practitioner’s local practising certificate or impose
further conditions on the practitioner’s local practising certificate; he argued
that he had been relegated behind a person charged with a serious criminal
49 Kioa v West (1985) 159 CLR 550; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
50 Respondents’ tender bundle, tab 14; transcript of proceedings, 1 June 2017, page 30
51 5 May document, page 5, paragraph (l); page 9, paragraph (ii); page 17, paragraphs 2(i); page 18, paragraphs 2(j), (k); page 22, paragraph 2(z); page 25, paragraph 6; transcript of proceedings, 1 June 2017, page 12
52 [2016] ACAT 12053 Transcript of proceedings, 22 November 2016, page 264 and ff54 Transcript of proceedings, 22 November 2016, page 270 and ff55 Transcript of proceedings, 1 June 2017, page 20
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offence.56 He argued more broadly that in all his dealings with the Law Society
“no mitigation option … was ever considered”.57
Relevance of procedural fairness issues to the appeal
58. There are therefore a number of issues raised by Mr Ezekiel-Hart in relation to
the process in making the decision concerning the practising certificate, some of
which, in particular the failure to allow Mr Ezekiel-Hart to respond to the
grounds of the decision, suggest it is arguable that he was not accorded
procedural fairness in relation to this decision. He submitted that “the danger of
the decision to the members of ethnic background of the Appellant is that it
goes without saying that this matter with precludes natural justice and
procedural fairness is one of public interest.”58
59. But this is not enough to succeed in this appeal. First, Mr Ezekiel-Hart must
show that that the practising certificate decision was the result of discrimination
on the grounds of race or political conviction. The original tribunal found it was
not. It stated at [81]:
The Tribunal finds that there were coherent well-evidenced reasons presented by the respondent (see paragraphs 58 to 62) about why the Law Society did not approve the applicant’s application, had acted in certain ways, for example, made the 2013 complaint against the applicant and not finalised it, and pursued his bankruptcy. It is true that the 2013 complaint and the bankruptcy involved some exercise of discretion by the second respondent. However this does not mean the second respondent was discriminatory. If the decision not to approve the applicant’s 2016 application for a practising certificate is an improper decision because it in part relies on the 2013 complaint against him, this does not mean the decision is discriminatory.
60. Mr Ezekiel-Hart argued that not only were there failures to accord him
procedural fairness, but that these were motivated by racial or political
conviction discrimination.59 But the original tribunal found there was no
evidence to support this contention. No convincing basis for overturning this
view was presented in this appeal tribunal.
56 Transcript of proceedings, 1 June 2017, page 3857 Transcript of proceedings, 1 June 2017, page 858 5 May document, pages 10-11, paragraph (oo); page 11, paragraph
(pp); page 14, paragraphs (aaa) and (ccc)59 Transcript of proceedings, 1 June 2017, pages 22-23
19
61. Second, Mr Ezekiel-Hart could have pursued an appeal in relation to these
procedural fairness matters under section 81 of the Legal Profession Act, but did
not do so. The original tribunal decision at [81] also drew attention to the fact
that Neville J had pointed out in prior proceedings where race discrimination
was also raised that the appropriate course if he regarded the decision as
inappropriate and/or procedurally unfair was for Mr Ezekiel-Hart to appeal the
decision in the ACT Supreme Court under section 81 of the Legal Profession
Act.60 The original tribunal noted at [82] that whatever the strengths or
weaknesses of a section 81 review, this is not what was before it.
62. In this appeal, the respondents also argued that that this would have been the
appropriate response.61
63. Even if the practising certificate decision were held invalid because of a breach
of procedural fairness obligations, this would not of itself support the racial
discrimination complaint, or provide Mr Ezekiel-Hart with a practising
certificate, though it would generally require the Law Society to deal with his
application again properly.
64. Mr Ezekiel-Hart suggested he had sought a reconsideration of the decision.62 He
provided no evidence of any such request. The Law Society indicated it had no
record of having received a written request from Mr Ezekiel-Hart on or around
9 December 2016 (or at any other time for that matter) to reconsider its
decision.
65. Given the possible errors in the decision, the Law Society could have
reconsidered the decision, or asked Mr Ezekiel-Hart to reapply, and provided
appropriate procedural fairness in this process. Notwithstanding the issues, it
apparently chose not do so.
Other issues raised
60 Neville J, Ezekiel-Hart v The Law Society of the ACT [2014] FCCA 658 at [90]
61 Transcript of proceedings, 1 June 2017, page 4862 Transcript of proceedings 1 June 2017, page 8; appellant’s
supplementary note, page 1
20
66. On the basis of the evidence discussed at [66], the original tribunal found at [87]
that the events surrounding the access to premises complaint and practising
certificate complaint, the 2013 complaint and the bankruptcy of Mr Ezekiel-
Hart were not pursued because of Mr Ezekiel-Hart’s complaint to the
government and proceedings in the courts. There was no basis therefore for a
claim of victimisation under section 68 of the Discrimination Act. No ground
was provided for overturing this finding. In relation to the allegations of
vilification, the original tribunal preferred the evidence of the respondents (at
[88]). There was no basis therefore for a claim of vilification under section 67A
of the Discrimination Act. No ground was provided for overturing this finding.
67. Mr Ezekiel-Hart raised the failure of the original tribunal to obtain a transcript.63
This is not a basis for overturning the original decision.
68. He also raised a breach of the rules of natural justice in the original hearing.64
This is a general allegation with no reference to any specific event, and as such
cannot provide a basis for an appeal. He also raised the fact that the President of
the Tribunal signed the original decision on behalf of the senior member who
heard and determined the matter.65 This is allowed by section 62 of the ACAT
Act. It is no basis for overturning the original decision.
69. In the hearing Mr Ezekiel-Hart also raised section 117 of the Constitution,
which is clearly not relevant to his claim.66
Conclusion
70. Despite raising a range of issues, Mr Ezekiel-Hart has not shown an error of fact
or law that justifies the original tribunal decision being varied or reversed.
………………………………..President G Neate AM
Delivered for and on behalf of the Tribunal
63 5 May document, page 8, paragraph (dd); page 24, paragraph 4; page 25, paragraph 5; page 26, paragraph 8; page 27, paragraph 9
64 5 May document, page 24, paragraph 465 5 May document, page 28, paragraph 12(d)66 Transcript of proceedings, 1 June 2017, pages 18-20
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HEARING DETAILS
FILE NUMBER: AA 5/2017
PARTIES, APPELLANT: Emmanuel Ezekiel-Hart
PARTIES, FIRST RESPONDENT: Robert Reis
PARTIES, SECOND RESPONDENT: Law Society of the ACT
COUNSEL APPEARING, APPELLANT N/A
COUNSEL APPEARING, RESPONDENTS
Ms Power
SOLICITORS FOR APPELLANT N/A
SOLICITORS FOR RESPONDENTS Phelps Reid Lawyers
TRIBUNAL MEMBERS: Acting Presidential Member R Orr QC
DATES OF HEARING: 1 June 2017
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