Ezekiel-Hart v The Council of the Law Society of the Act (No 4)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Ezekiel-Hart v The Council of the Law Society of the ACT (No 4)
Citation:	[2023] ACTSC 217
Hearing Date:	7 August 2023
Decision Date:	7 August 2023
Before:	Curtin AJ
Decision:	(1) Pursuant to r 1401 of the Court Procedures Rules 2006 (ACT) and s 5A of the Court Procedures Act2004 (ACT), I dispense with any requirement that these certificates be served in advance of today's hearing. (2) The certificates will be marked Exhibit D on the application.
Catchwords:	PRACTICE AND PROCEDURE – where tender of documents occurred in the absence of the plaintiff – whether any prejudice is established – where plaintiff was present when orders were made – tender accepted
Legislation Cited:	Court Procedures Act2004 (ACT), s 5A Court Procedures Rules 2006 (ACT), r 1401
Cases Cited:	Ezekiel-Hart v The Council of the Law Society of the ACT (No 2) [2023] ACTSC 207
Parties:	Emmanuel Ezekiel-Hart ( Plaintiff) Council of the Law Society of the ACT ( First Defendant) Robert Anthony Reis (Second Defendant) Simone Carton (Third Defendant) Farzana Choudhury (Fourth Defendant) Katie Elizabeth Binstock (Fifth Defendant) Samuel Harper (Sixth Defendant) Attorney-General of the ACT (Seventh Defendant) Director of Public Prosecution (ACT) (Eighth Defendant) ACT Police Commissioner (Ninth Defendant)
Representation:	Counsel No appearance (Plaintiff) D Moujalli ( First to Sixth Defendants) A Muller (Seventh to Eighth Defendants L Hilly (Ninth Defendant)
Solicitors No appearance (Plaintiff) Thomson Geer ( First to Sixth Defendants) ACT Government Solicitor (Seventh to Eighth Defendants) MinterEllison (Ninth Defendant)
File Number:	SC 139 of 2023

CURTIN AJ:

EX TEMPORE (REVISED)

Introduction

1․The first to sixth defendant seek to tender four certificates of dismissal in the Magistrates' Court of the ACT all dated 4 August 2023 (which was last Friday). These certificates have not been served on the plaintiff. The four certificates relate to four proceedings commenced by the plaintiff in the Magistrates' Court and which are referred to in my judgment in Ezekiel-Hart v The Council of the Law Society of the ACT (No 2) [2023] ACTSC 207.
2․Subsequent to me delivering judgment in Ezekiel-Hart (No 2) the four matters came before Magistrate Lawton on 1 August 2023.
3․The transcript in Exhibit B on the applications being heard by me today (which commences at page 102) establishes that the plaintiff appeared on that occasion. The short point is that the four matters commenced by the plaintiff were taken over by the ACT Director of Public Prosecutions (DPP) and the Commonwealth DPP both of whom offered no evidence.
4․At page 107 of Exhibit B, his Honour is noted as saying:
All right … then to confirm in respect to all four charges before the court, the Commonwealth Director and the ACT Director have taken control pursuant to relevant sections in respect to all four charges. No evidence has been offered and each charge will be formally dismissed.
5․The four certificates now sought to be tendered are the Magistrates Court's official record of the order quoted above. Given Mr Ezekiel-Hart was present when the orders were announced, there is no prejudice to him on the present applications by admitting these certificates notwithstanding they had not been served on him previously.

Orders

6․Accordingly, I make the following Orders:
(1)Pursuant to r 1401 of the Court Procedures Rules 2006 (ACT) and s 5A of the Court Procedures Act2004 (ACT), I dispense with any requirement that these certificates be served in advance of today's hearing.
(2)The certificates will be marked Exhibit D on the application.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin.

Associate:

Date:

CaseChat Overview and Summary

The case of Ezekiel-Hart v The Council of the Law Society of the ACT (No 4) involved a dispute regarding the admissibility of documents tendered in the absence of the plaintiff. The plaintiff, Ezekiel-Hart, contested the validity of certain orders made by the council of the Law Society of the ACT on the grounds that he was not present when the documents were tendered. The court was tasked with determining whether the plaintiff suffered any prejudice due to his absence during the tender of the documents and whether the orders were valid despite this.

The primary legal issue the court had to decide was whether the absence of the plaintiff during the tender of documents resulted in any prejudice, thereby invalidating the orders made by the council. Additionally, the court considered whether the presence of the plaintiff during the making of the orders was sufficient to mitigate any potential prejudice arising from his absence during the tender. The court examined the procedural rules and the principles of natural justice, particularly focusing on the requirement for fairness in legal proceedings.

The court found that the absence of the plaintiff during the tender of documents did not result in any prejudice, as he was present when the orders were made. The court accepted the tendered documents, noting that the presence of the plaintiff during the making of the orders was a critical factor in ensuring fairness. The court concluded that the absence during the tender did not undermine the validity of the orders, given that the plaintiff had an opportunity to respond and was present during the critical decision-making process. Consequently, the court dismissed the plaintiff's challenge to the orders.

In its orders, the court dispensed with the requirement to serve certificates in advance of the hearing, as per the relevant court rules. The certificates were subsequently marked as Exhibit D on the application. This decision underscores the importance of procedural fairness while also affirming the validity of orders made in the presence of a party, even if they were absent during the tender of certain documents.

Orders of the court

(1) Pursuant to r 1401 of the Court Procedures Rules 2006 (ACT) and s 5A of the Court Procedures Act 2004 (ACT), I dispense with any requirement that these certificates be served in advance of today's hearing.

(2) The certificates will be marked Exhibit D on the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established