Federal Court of Australia

Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory, in the matter of Bankrupt Estate of Ezekiel-Hart [2025] FCA 181

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant’s application for a stay of the sequestration order made on 21 November 2024 be dismissed.

2.    Grounds 3, 4, 5 and 9 of the Notice of Appeal be struck out.

3.    Prayers for relief 2 and 3 of the Notice of Appeal be struck out.

4.    The Appellant give security in the amount of $20,000 by paying that sum into Court by 4.30 pm on 9 April 2025.

5.    Subject to Order 6, the Appeal be stayed pending the provision of security under Order 4.

6.    The matter be listed for a case management hearing on 23 April 2025.

7.    The Appellant pay the Respondents’ costs of and incidental to all three applications.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

1    On 21 November 2024 a judge of this Court made orders under the Bankruptcy Act 1966 (Cth) sequestrating the estate of Mr Ezekiel-Hart: Council of the Law Society of the Australian Capital Territory v Ezekiel-Hart, in the matter of Ezekiel-Hart [2024] FCA 1341. On 11 December 2024 he filed a notice of appeal which is presently pending. Three interlocutory applications have now been made in the Court’s appellate jurisdiction. The first, made by Mr Ezekiel-Hart, is for a stay of the sequestration order pending the determination of his appeal. The second and third are made by the Respondents and seek the striking out of portions of the notice appeal and the provision by Mr Ezekiel-Hart of security for their costs of the appeal.

2    I do not think that the sequestration order should be stayed. I am unpersuaded by Mr Ezekiel-Hart’s submissions that his appeal has any substantial prospects of success. The primary judge rejected his contention that he had a prima facie case for a set-off or cross demand against either of the Respondents. Before me, he sought to argue that such a set-off or cross demand could be seen to arise from the alleged misleading by the Respondents of Neville J in 2014. The primary judgment records no such argument as having been put to Perry J and I was taken to no part of the transcript before her Honour or any submission to make good the contention that such a submission was put.

3    Apart from that, the Appellant’s somewhat diffuse submissions did not disclose anything which caused me to doubt the primary judge’s reasoning. In my view, the appeal has low prospects of success.

4    Turning then to the Respondents’ interlocutory applications, the first seeks orders that grounds 3, 4, 5 and 9 of the notice of appeal should be struck out along with prayers for relief 2 and 3 (stated in the notice of appeal under the heading ‘Orders sought’). Those grounds provide:

Grounds of appeal

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3.    The Decision was an affront to the conscience of the Court and a miscarriage of justice in that it provided a covering for the disgraceful conduct of the Respondents who have made it a routine to lie and mislead Courts and Tribunal for personal gain including fabrication of document to oppress and mislead with clear intent to kill or suppress the appellant for life, having maintained oppressive conduct of failing to honour their undertaking to the Court, and failure to apologize to the Court for misleading the Court to obtain judgment used to withhold the certificate of the appellant indefinitely over 11 years while lying to the Court that they had provided the Appellant with certificate, and in contrary to section 68 of the LPA 2006.

4.    The Decision diverted from the facts and rewarded Mr Robert Reis for destroying the image of the Court in the public with lies and misleading conduct.

5.    Her honour was focused on preserving and painting good the image of Mr Robert Reis and the Council than focus on the interest of justice and proceeded to misapply the cases provided with evidence in support of the Appellant’s case.

…

9.    Her Honour failed to consider s 37M , 37N, 37P and 53A, of the Federal Court of Australia Act 1976 (Cth) in dealing with the whole of the matters between the parties in the interest of justice noting that the Respondents had earlier misled the Court in bankruptcy proceeding in 2013/2014 proceedings.

…

Orders sought

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2.    That the Respondents pay the Appellant balance of money due to the Appellant from loss of income occasioned by the Respondents by lying under oath and misleading the Court that it has given the Appellant certificate to earn a living in his chosen profession but was a lie used to obtain miscarry of judgment

3.    That the Respondents be declared vexatious litigant Black lawyer hunter for maintaining and with knowledge continue to benefit for 11 years judgment obtained with false and misleading informing because the Appellant was vulnerable and would not be believed as a Blackman.

5    Grounds 3, 4, 5 and 9 do not articulate any comprehensible grounds of appeal. Consequently, they fail to comply with the requirement of Federal Court Rules 2011 (Cth) (‘FCR’) r 36.01(2)(c) that the notice of appeal state briefly but specifically the grounds relied on in support of the appeal. They are liable therefore to be struck out: QE Family Pty Ltd v Peter Warren Automotive trading as Mercedes Benz Macarthur [2024] FCA 1062 at [59]-[62] per Yates J.

6    It is not in that circumstance necessary to deal with the Respondents’ submission that Grounds 3, 4, 5 and 9 are also scandalous and vexatious within the meaning of FCR r 6.01 although my initial impression is that the Respondents are probably correct about this. On their face, prayers for relief 2 and 3 have no place in a notice of appeal.

7    The Respondents’ second application for security for costs should also be granted pursuant to s 56(1) of the Federal Court of Australia Act 1976 (Cth) and FCR r 36.09(1). Whilst it is not inevitable that a party who has lost at first instance will be ordered to put up security for an appeal, generally the Court will approach the matter on the basis that such a party has lost and that the other party has won and should be protected from the further costs exposure inherent in appellate litigation. In this particular case, two matters predominate in the exercise of the Court’s discretion. First, my impression is that the appeal has little merit. Secondly, there is no evidence that the effect of ordering security for costs would be to stifle the appeal. In that circumstance, it is appropriate that security should be ordered.

8    On the application for security for costs, the Respondents elicited evidence that the appeal was expected to take one day and that with all appropriate preparations it was anticipated that their actual costs including disbursements would be $42,500. The charge out rates on which this was based were in my opinion reasonable ones. The professional fees were then subjected to a 20% reduction to reflect the effects of any costs assessment and the disbursements were reduced by 7.5% for the same reason (being the midpoint of an expected rate of recovery on disbursements in a costs assessment of 90-95%). The final figure was $35,687.50. However, on the application the Respondents limited their claim for security to $20,000. I am satisfied that $20,000 is an appropriate amount of security.

9    The appeal should be stayed pending the provision of the security which must be provided within 28 days of the date of the orders made today. I will list the matter for a further case management hearing two weeks after the date by which security is to be provided. If the security has not been provided by the time of that case management hearing, I will indicate that as presently advised, I would propose at that time to dismiss the proceeding for want of compliance with the security order.

10    In those circumstances, the Court will make orders that:

(1)    The Appellant’s application for a stay of the sequestration order made on 21 November 2024 be dismissed.

(2)    Grounds 3, 4, 5 and 9 of the Notice of Appeal be struck out.

(3)    Prayers for relief 2 and 3 of the Notice of Appeal be struck out.

(4)    The Appellant give security in the amount of $20,000 by paying that sum into Court by 4.30 pm on 9 April 2025.

(5)    Subject to Order 6, the Appeal be stayed pending the provision of security under Order 4.

(6)    The matter be listed for a case management hearing on 23 April 2025.

(7)    The Appellant pay the Respondents’ costs of and incidental to all three applications.

Associate:

Dated:    12 March 2025