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ACT CIVIL & ADMINISTRATIVE TRIBUNAL

EZEKIEL-HART vREIS 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 fairnessrelevant

Legislation cited:ACT Civil and Administrative Tribunal Act 2008ss6, 7, 32, 79, 82

Discrimination Act 1991ss 7, 8, 15, 19, 20, 16

Human Rights Commission Act 2005 s 53A

Legal Profession Act 2006 ss 11, 36, 44, 47, 69

Subordinate

Legislation cited:ACT Civil and Administrative Tribunal Procedural Rules 2009 (No.2) r 21(c)

Cases cited:Barlow v Law Society [2017] ACTSC 35

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Ezekiel-Hart v The Law Society of the ACT [2014] FCCA 658

Fox v Percy (2003) 214 CLR 118

Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275

Hart v Reis [2017] ACAT 3

Huang v University of New South Wales [2014] FCA 1137

Kioa v West (1985) 159 CLR 550

Law Society v Legal Practitioner 2 [2016] ACAT 120

Legal Practitioner RH v Council of the Law Society of the ACT [2016] ACAT 94

Spencer v Commonwealth (2010) 241 CLR 118

Singh v Owners Strata Plan No. 11723 (No.3) [2012] FCA 1121

Zegarac 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-HART

Appellant

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

ORDER

The Tribunal orders that:

  1. The application under section 32 of the ACT Civil and Administrative TribunalAct 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, EmmanuelEzekiel-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). MrEzekiel-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 thefirst 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 MrEzekiel-Hart’s practising certificate (practising certificate claim).

The complaint concerned direct discrimination[2] in the areas of professional or trade associations, access to premises, and goods, services and facilities.[3]

  1. In summary, the original tribunal found that there was no unfavourable treatment for the purposes of the Discrimination Actin 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 definite inference of racism from the circumstances. The tribunal found that there was no victimisation or vilification of the appellant.[4]
  2. 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 MrEzekiel-Hart.

Summary of appeal decision

  1. 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

  1. 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]
  2. 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.
  3. In the original tribunal proceedings, on 11 October 2016 the respondents applied to have the applicationby Mr Ezekiel-Hart dismissed in whole or in part under section 32 of the ACAT Actbecause 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, delivered on 4April 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]
  4. 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 MrEzekiel-Hart were not upheld. Particular aspects of the findings of the original tribunal are discussed further below.

Appeal proceedings

  1. 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, 65pages, dense and it is difficult to discern the specific bases of the appeal.
  2. 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 Februarydocument, 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 15February 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.
  3. 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 12April 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 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.
  4. 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 MrEzekiel-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]
  5. The respondents made a further application under section 32 of the ACAT Actfor 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).
  6. 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).

Summary dismissal application

  1. 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.
  2. The respondents submitted that the notice of appeal, even with the further ‘particulars’in the 5 May document, was embarrassing, not particularised, incomprehensibleand does not identify a matter of substance or an appealable error.[10]
  3. 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]
  4. The respondents pointed out theneed 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]
  5. 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 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]
  6. 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].
  7. 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.
  8. 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 matters, and challenges to a wide range of government decisions. Many of the litigants before the tribunal are unrepresented people, who are disadvantaged in someway.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 simpleand 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.
  9. 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.
  10. 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.
  11. 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.

Substantive appeal

  1. 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.
  2. 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 offact or law that justifies the original tribunal decisionbeing 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.
  3. 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 MrEzekiel-Hart being successful in relation to the original tribunal’s assessment of the evidence of witnesses.[18]
  4. 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 appropriate that an indirect discrimination complaint be allowed to be pursued in this appeal.
  5. 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]
  6. 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]
  7. In thisappeal, 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 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