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

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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]

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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

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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

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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

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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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