Federal Court of Australia

Ezekiel-Hart v Council of the Law Society of ACT (Vexatious Proceedings Order) [2025] FCA 551

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 37 AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), Chief Emmanuel Ezekiel-Hart be prohibited from instituting proceedings in this Court (whether alone or in concert with another person) without making an application for leave to institute proceedings in accordance with s 37AR of the FCA Act and obtaining leave in accordance with s 37 AT of the FCA Act.

2.    The originating application filed on 24 October 2024 be dismissed.

3.    The respondents have leave to make any application as to any special costs order within 14 days of the delivery of these reasons.

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

REASONS FOR JUDGMENT

NEEDHAM J:

Background to this application

1    Chief Emmanuel Tam. Ezekiel-Hart, the applicant has instituted proceedings against the respondents, the Council of the Law Society of the Australian Capital Territory (Council) and Mr Robert Reis, its former Professional Standards Director, by way of his Originating Application dated 24 October 2024 (the current proceedings). The current proceedings against the Council and Mr Reis are the latest in a string of various proceedings instituted by the applicant against the respondents, which proceedings have been taken variously in the ACT Supreme Court, the ACT Court of Appeal, the High Court of Australia, ACT Civil and Administrative Tribunal (ACAT or Tribunal), the Federal Circuit Court of Australia, and in this Court. He has also instituted two sets of criminal proceedings against the respondents in the ACT Magistrate’s Court, which were taken over by the Director of Public Prosecutions.

2    The applicant has in the past instituted proceedings against, or joined to the various proceedings, a number of other persons who are not parties to the current proceedings. They include officers of the Council and members of its staff; lawyers acting for the respondents; the Legal Aid Commission of the ACT, the Australian Capital Territory, the Attorney-General of the ACT (as a defendant, and as intervener), the Director of Public Prosecutions of the ACT, individual Judges and a Deputy Registrar of the Supreme Court of the ACT, and that Court itself, the ACT Police Commissioner, the Commonwealth of Australia as represented by the Australian Federal Police, and, in a different context, persons in relation to a tenancy dispute.

3    Many of the various proceedings, including the current proceedings, have involved allegations of breaches of the applicant’s human rights, including racial and other forms of discrimination, and seek a large sum in damages as well as an apology.

4    The current proceedings call in aid both the Australian Human Rights Commission Act 1986 (Cth) and Magna Carta (1297) 25 EDW 1 C 29 (“We will sell to no man, and we will not deny or defer to any man, either justice or right”), and seek “$2,000,000 in damages plus exemplary damages”.

5    The focus of the applicant’s claim in the current proceedings is that:

The Respondents lied to the Court and deliberately misled the Court to defeat Human Rights Claim before the Court and lied in Human Rights and discrimination claim before the Tribunal.

(Paragraph 1, Originating Application)

6    The Originating Application is a prolix and rambling document of some 14 pages which includes extracts from transcript, and alleges a consistent course of conduct by the respondents against the applicant. For example, paragraph 90 of the Originating Application alleges:

I believe these conduct of the Respondents to continue to cause me detriment for over 14 years were on the basis that the Respondents know that the judges will do what they asked and they are above the law, and can do whatever they like to me as a Blackman and their admissions of providing evidence that were “clearly not correct” to any judge or Court is of no consequences and the Respondents can breach the law, and breach my human rights with impunity

7    On 15 November 2024, the applicant was directed to file a Statement of Claim. That document is even longer, at 26 pages, covers much of the same ground. It does not conform with the pleading requirements of the Federal Court of Australia Rules 2011 (Cth). Again, it extracts transcript and makes sweeping allegations of malice, fraud, and assertions that the Court system is involved in the conduct alleged against the respondents. For example, paragraph 69 provides:

Mr Robert Reis has boasted that no one can hold him accountable and I believe him from experience and I know that no Court will question him or bring him to account but I still have trust in the legal system because I see judges and parliamentarians held accountable in recent times, and I know that Mr Robert Reis is not above them.

8    The alleged basis of the claims against the Respondent are summarised in the applicant’s Statement of Claim as follows:

11. I was subject to unlawful Discrimination

12. I was subjected to victimization,

13. I was subjected to detriments

14. I was subjected to unfavourable treatments

15. I was subjected distinction treatment

16, I was subjected to disability

17. The treatments that I was subject were not one-off, they were calculated to harm my human rights and kill me and have lasted for 16 years unnoticed by any authority or subsequent Councils.

9    The various sets of proceedings filed by the applicant against the respondents each arise, to a greater or lesser extent, out of the refusal by the Council to issue the applicant with an unrestricted practising certificate in September 2008 (the 2008 refusal), and subsequent conduct arising out of the applicant’s attempts to have a practising certificate issued at various times.

10    The respondents now seek a vexatious proceedings order against the applicant. As consequential or alternative relief, they seek that his proceedings be dismissed, subject to summary judgment, or struck out. I will maintain the terms “respondents” and “applicant” as they relate to the main proceedings despite the parties each taking the opposite role on the vexatious proceedings application.

11    The respondents do not rely on the totality of the applicant’s litigious history. The proceedings upon which they rely, along with aspects of each, is attached to these reasons as Schedule 1. In this judgment, particular proceedings which appear in Schedule 1 will be referred to by the number by which they are indicated in the schedule.

12    Two further aspects of the matters set out in Schedule 1 were raised during the evidence. These were:

(a)    Ezekiel-Hart v Reis & ors [2018] ACTSC 264; an application by the respondents in proceedings no 17 (SC 433 of 2017, ACT Supreme Court) for summary dismissal of the applicant’s then proceedings, and for a declaration that the applicant was a vexatious litigant, which application was dismissed by McWilliam AsJ with costs (although the respondents had some other success on that occasion). This decision appears in Schedule 1 but the Schedule does not note that the applicant was partially successful. As proceedings no 17 refers to three judgments in total (the second being that of Crowe AJ of 25 July 2019 in Ezekiel-Hart v Reis & ors [2019] ACTSC 192, and the third the costs decision of Crowe AJ in Ezekiel-Hart v Reis & ors [2019] ACTSC 250) I will refer to them in these reasons, respectively, as 17.1, 17.2, and 17.3. The applicant relies on part of the McWilliam AsJ decision (being no 17.1), which will be dealt with in more detail below.

(b)    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, a determination by Perram J dismissing a stay sought by the applicant, and ordering that he give security for costs for the appeal, and that he pay the respondent’s costs. This decision was relied on by the respondents. This judgment was given after Schedule 1 was prepared, and it will be referred to in these proceedings as no 44, despite being one of the steps in proceedings no 43.

13    As the respondents correctly summarise in their written submissions on the vexatious proceedings order:

… the applicant has been unsuccessful in every civil proceeding which he has instituted against the Law Society and related persons and which has been concluded either summarily or on a final basis, ie, 37 failed proceedings which have been instituted by the applicant. In the case of the two criminal proceedings commenced by the applicant …, the proceedings were dismissed after the prosecution offered no evidence in support of the charges.

Vexatious Proceedings Orders

14    Section 37AO(1)(a) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) empowers the Court to make, in appropriate circumstances, a vexatious proceedings order. Such an order is a serious undertaking. As the Full Court said in Ferdinands v Registrar Burns (Vexatious Proceedings Order) [2024] FCAFC 157 (Cheeseman, Goodman, and McEvoy JJ) at [15]:

The consequences of a vexatious proceedings order may include that the person the subject of the order is precluded from instituting proceedings, or proceedings of a particular type, without the leave of the Court: s 37AQ(1)(a) of the FCA Act. As Wheelahan J observed in Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30 at [6], the Court’s power to grant such leave is fettered, because leave may be granted only if the Court is satisfied that the proceeding is not a vexatious proceeding: s 37AT(4).

15    The powers to make orders under s 37AO(1) and (2) are as follows:

37AO Making vexatious proceedings orders

(1) This section applies if the Court is satisfied:

(a)    a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b)    a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.

(2) The Court may make any or all of the following orders:

(a)    an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b)    an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c)     any other order the Court considers appropriate in relation to the person.

Note:    Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

16    The applicant has been declared a vexatious litigant by Judge Neville in the (then) Federal Circuit Court of Australia on 4 April 2014 (Ezekiel-Hart v Council of the Law Society of the ACT [2014] FCCA 658 – proceedings no 14), and by Curtin AJ in the Supreme Court of the ACT on 2 February 2024 (Ezekiel-Hart v Council of the Law Society of the ACT (No 7) [2024] ACTSC 12 – proceedings no 36). The applicant filed what appears to be two applications to appeal, or to seek leave to appeal, against Curtin AJ’s order, but both were dismissed; by Loukas-Karlsson J on 23 December 2024 (Ezekiel-Hart v Council of the Law Society of the ACT [2024] ACTCA 40 – proceedings no 37), and struck out as incompetent by McCallum CJ for a failure to seek leave to appeal (Ezekiel-Hart v Council for the law Society of the ACT [2024] ACTCA 2 – proceedings no 38). I note that the respondents wrote to the applicant on 29 February 2024 pointing out the requirement for leave prior to the decision of McCallum CJ.

Evidence on the vexatious proceedings application

17    The respondents relied on an affidavit of a solicitor, Mr Samuel Harper, who set out in careful detail each of the proceedings upon which the respondents rely. Mr Harper has been acting for the Council since 2019 and has had day-to-day carriage of the respondents’ matters relating to the applicant since early 2022, under supervision of Ms Binstock and Mr Hill of Thomson Geer.

18    The applicant objected to evidence being given by Mr Harper, submitting that Mr Reis was the appropriate person to give evidence, and that he would in any case wish to cross-examine Mr Reis. He said:

… those who have made the affidavit are nowhere directly connected to the issue that is actually before the court. So in fact, they are only solicitor providing information that was instructed to them. So the actual people that are directly involved in what your Honour will consider as to whether they are telling the truth or they’re actually having a good defence, that person has not [?put on an?] affidavit.

(words omitted in transcript added for readability)

19    The applicant’s submission as to “the issue that is actually before the court” was directed, as was the majority of his evidence and submissions, to the factual basis underlying the various proceedings he has instituted or conducted – that is, the conduct of the various respondents but particularly Mr Reis in determining his eligibility for the issue of an unrestricted practising certificate in 2008, and their conduct in the various proceedings thereafter.

20    In the end the objection to Mr Harper’s evidence was resolved as being one of relevance, and the affidavit was read with that in mind. I find that the evidence given by Mr Harper was relevant and thus admissible (Evidence Act 1995 (Cth) s 55) because the question in the vexatious proceedings application is not whether Mr Reis’ conduct, both in relation to the issue of the applicant’s unrestricted practising certificate and to later proceedings in various courts and tribunals, involved discriminatory conduct or dishonesty as alleged in those substantive proceedings. Instead, the question to be determined is whether the applicant “has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals”. This is evidence which can be given by a solicitor with knowledge of the various proceedings, as Mr Harper is qualified to do.

21    The respondents also tendered a number of documents which included letters and transcripts, a bundle of practising certificates held by the applicant from 1 January 2008 until 30 June 2013, and the recent decision of Perram J in proceedings no 44 referred to above.

22    The applicant did not seek to cross-examine Mr Harper.

23    One of the issues arising from Mr Harper’s affidavits and in particular from its annexures was the interplay of s 91 of the Evidence Act, and s 37AO of the FCA Act. Annexed to Mr Harper’s affidavit are various applications, originating processes and other documents, including affidavits filed by the applicant in various proceedings. Those were included in order to give context to the matters to which s 37AO(1) requires me to determine. Section 37AO(6) provides:

(6)    For the purposes of subsection (1), the Court may have regard to:

(a)     proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b)    orders made by any Australian court or tribunal; and

(c)     the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

24    The Full Court of this Court, in Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100; 304 FCR 318 (Lee, Feutrill and Jackman JJ) dealt with this aspect as follows (at [21]):

Although it was not in dispute before us, it is appropriate to record that we agree with the views expressed by Wheelahan J in Fokas (at [41]-[66]) that the Court’s evaluation as to whether the section is engaged is framed by s 37AO(6), which expressly authorises the Court to have regard to: other proceedings; orders made in other proceedings; and the conduct of those proceedings, and that s 91 of the Evidence Act 1995 (Cth) (which provides that evidence of the decision, or of a finding of fact in another proceeding, is not admissible to prove the existence of a fact that was in issue in that proceeding) is not infringed by relying on orders and reasons for judgment in other proceedings for the purposes of considering whether a proceeding is vexatious (and hence whether s 37AO(1) is engaged). In short, this is because the judgments and orders are not relied upon to prove a fact in issue in those other proceedings but rather (as s 37AO(6) authorises) to show the outcome of the proceedings, and the course they had taken, and to record the person’s conduct in those proceedings for the statutory purpose of characterisation.

25    The reference in Storry v Parkyn to the decision of Wheelahan J in Fokas is to Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30. After a careful review of the various cases in which the interplay between s 91 of the Evidence Act and s 37AO(6) or respective state provisions to the same effect were considered, Wheelahan J said (at [66]):

The position therefore remains that the question whether other proceedings were vexatious is a question for the Court considering an application under s 37AO, but that s 37AO(6) permits that regard may be had to those other proceedings, including any reasons for judgment in those proceedings … Section 91 of the Evidence Act is not infringed by relying on orders and reasons for judgment in other proceedings for the purposes of considering whether s 37AO(1) of the Federal Court of Australia Act is engaged. That is because the judgments and orders are not relied upon to prove a fact in issue in those proceedings. Rather, as s 37AO(6) expressly authorises, the judgments and orders may be relied upon to show the outcome of the proceedings, and the course they had taken, and to record the person’s conduct of those proceedings for the purposes of characterising those proceedings in order to evaluate whether s 37AO(1) is engaged: see, Attorney-General (NSW) v Chan at [46]-[47] (Fullerton J).

26    Accordingly, I am of the view that I can have regard to the orders and reasons for judgment annexed to the affidavit of Mr Harper, as well as to the judgment in proceedings no 44, and to the other documents such as affidavits, where context is required to allow me to have regard to the conduct of those proceedings by the applicant. That includes the reasons of Judge Neville and Curtin AJ as to the applicant being a vexatious litigant, not because those determinations bind me in any way, but because s 37AO(6)(b) allows me to have regard to those orders. Subsection 37AO(6)(b) is not limited to proceedings instituted, or attempted to be instituted, by the applicant.

27    The evidence for the applicant was contained in his affidavit dated 31 January 2025. This affidavit comprises 66 pages, and is his affidavit in support of his Originating Process in the current proceedings. At a case management hearing on 7 February 2025, the applicant indicated that he did not seek to put on any evidence specifically addressing the respondent’s application for a vexatious proceedings order and consequential relief, but would rely on his affidavit in support of his claim. As a result, the affidavit does not engage with the particular matters raised in Mr Harper’s affidavit, but instead seeks to demonstrate that the respondents, and in particular Mr Reis, have discriminated against the applicant in various ways, most significantly in the context of the Originating Application by lying in relation to the applicant’s application for an unrestricted practising certificate.

28    The applicant also relied on a bundle of some 182 Tender Documents (also referred to as TD) comprising 942 pages which were admitted into evidence. They included his law degrees (including a Master’s degree), his academic transcripts, and a number of personal recommendations, minutes of meeting of the Council, correspondence, and extracts from legislation, as well as documents from various proceedings the applicant has commenced, including transcripts, affidavits and submissions, and judgments. The Tender Documents were also referred to in the applicant’s Originating Application and his Statement of Claim.

29    I requested at the end of the hearing that each party provide an index, as neither the annexures to Mr Harper’s affidavit nor the applicant’s Tender Documents was provided with an index. The following exchange took place on the second day of hearing, at the close of the applicant’s submissions:

MR EZEKIEL-HART: Your Honour, I will do one thing to help your Honour. I can send you the description of the TD document, so that it will be easier for you to follow ......

HER HONOUR: I would like an index.

MR EZEKIEL-HART: Yes. Yes.

HER HONOUR: With no commentary, because you’ve described them all in your written submissions, and you’ve referred to a number of them, I think - - -

MR EZEKIEL-HART: Yes.

HER HONOUR: - - - in your oral submissions.

MR EZEKIEL-HART: Yes.

HER HONOUR: But if each of you could provide me with an index of the bundles, that would be very helpful.

30    The respondents complied with the request, providing an unexceptional index listing the volume, the annexure number, the title of the document and its date, and the page number. The applicant however provided “an explanation” of some 118 pages which was received in the Registry under cover of an email. The email was provided to me. I declined to take the
“explanation” into account and have not reviewed it, because, firstly, no general leave for further submissions was granted, and secondly, I specifically rejected the applicant’s offer of a “description of the TD document(s)” when directing him to provide an index. There is, accordingly, no index to the Tender Documents, but they have been scanned via the OCR process in my Chambers so that they are searchable, as a less satisfactory alternative.

31    The hearing proceeded for two days, in the ACT Registry of the Court in Canberra. The parties were both commendably compliant with the trial schedule, which gave the respondents the morning of the first day and the afternoon of the second day, and the applicant a full day, with the applicant’s submissions commencing after lunch on the first day and continuing until lunchtime on the second day.

Have the respondents established the basis for a vexatious proceedings order?

32    There are four cumulative conditions that need to be fulfilled before the power in s 37AO(2) may be exercised. They are that the applicant has:

(a)    frequently;

(b)    instituted or conducted;

(c)    vexatious proceedings;

(d)    in Australian courts or Tribunals.

33    Sub-s (6)(c) of s 37AO provides that the Court may have regard to the applicant’s overall conduct in proceedings. That includes his compliance with orders made in the various proceedings, and his conduct of the current proceedings.

“frequently” “instituted or conducted” proceedings in “Australian courts or Tribunals”

34    The evidence demonstrates that the applicant has indeed instituted or conducted many proceedings (at least 43, as demonstrated by the Schedule) and that they were instituted or conducted in Australian courts or tribunals. That much was not in contest.

35    However, the applicant did not concede, when asked, that he had “frequently” made application to the various courts. In relation to this, as was the case with many other queries, the applicant did not engage directly with the question. For example, the following passage of transcript exemplifies the problem:

HER HONOUR: [Would you] agree that you have frequently instituted proceedings?

MR EZEKIEL-HART: Your Honour, I wouldn’t say it’s in that form, because, your Honour, the law in there agrees that if they refuse to me that I should come to court. So that should not be counted as frequent, because it’s a legislative line of action that if you do something wrong, I should come to the court.

If, assuming they did not do – assuming I hold certificate now – at least, as his Honour thought – and I bring them to court. Even if your Honour slap hell out of me, I wouldn’t mind because I know I’m being stupid. I hold a certificate, and then I bring them to court. That is stupidity. But here we are talking that under section 65(2), which also says that – don’t hold for more than five years. It is held for more than five years.

Your Honour, am I not entitled under the law to bring them before the court, because I cannot go and fight them. So I do the normal procedure by obeying the law, by bringing them that they have breached a law. And breaching that law – I want the court to do justice for me that the breach of the law is a problem. So – and your Honour would note that.

36    The applicant, in the above excerpt from the transcript, refers to two main contentions which, he submitted, tells against his filings being “frequent”.

37    The first contention is that he was entitled to file proceedings against a refusal by the Council to grant him a practising certificate. Section 81(1)(a) of the Legal Profession Act 2006 (ACT) provides that an appeal lies to the Supreme Court of the ACT against a decision of the Council to refuse to grant or renew a local practising certificate. From a review of Schedule 1, and of the description of those proceedings in Mr Harper’s affidavit, proceedings numbers 1-7, 9-11, and 14 do indeed relate in some way to a refusal by the Council to grant him an unrestricted practising certificate in September 2008, or are appeals or other proceedings related to that refusal. Proceedings no 15 raised those allegations again, but not pursuant to s 81(1)(a), as the proceedings were filed in the ACT Civil and Administrative Tribunal. The applicant also raised the 2016 refusal to grant him an unrestricted practising certificate in those proceedings in ACAT.

38    Most of the subsequent proceedings have their genesis in the 2008 refusal. However, only proceedings no 1 (to the Supreme Court of the ACT), 2 (to the Court of Appeal of the ACT) and 3 (to the High Court for special leave to appeal) can be said to be an exercise of his right under s 81(1) of the Legal Profession Act in relation to the 2008 refusal. I cannot say that with any high degree of confidence, given that no mention of that section appears in the paragraph of the Originating Claim in the Supreme Court of the ACT which seeks to set aside the decision not to grant the applicant an unrestricted practising certificate, relying as it does on the refusal being “misleading information and unreasonable, Bad in Faith”. The relief sought against the respondents includes other prayers for relief not made under s 81 of the Legal Profession Act such as order 4:

That on the alternative, defendants be ordered to provide answers to the question; whether the appellant will pay the cost of the practise management course with the defendants if the plaintiff chose to do the course elsewhere as suggested by the 4th defendant.

And order 6:

That the court finds that the 2008/2009 vice-president election result was not declared according to law and that the plaintiff was victimised.

39    The applicant’s submission that because he would have been allowed to bring proceedings each year that the Council refused to grant or renew his practising certificate, his filings were not ‘frequent’ does not assist him, since after 2008 he took no such proceedings (and in fact, according to Exhibit R2, held a restricted practising certificate until 30 June 2009, and unrestricted practising certificates from 1 July 2009 until 30 June 2013) until his filing in SC 433 of 2017 (proceedings no 17), which seeks to contest a decision of the Council on 21 March 2016 not to issue the applicant with a practising certificate.

40    The orders made by Judge Neville on 4 April 2014 prohibited the applicant from:

… instituting any further proceedings in this Court that (a) relate to or arise out of the Law Society's refusal to issue him with an unrestricted practising certificate, and (b) name any of the parties in the current matters (or their servants or agents) and which relate to or arise out of the same refusal to issue the said certificate.

(Ezekiel-Hart v the Council of the Law Society of the Australian Capital Territory & ors [2014] FCCA 658 at [128] – proceedings no 14)

41    This argument was one taken into account by McWilliam AsJ (as to which, see further, at [50] ff below) and while it is a factor to take into account, the matters in the Schedule demonstrate that instead of taking separate distinct proceedings in relation to each particular refusal by the Council, the applicant has sought to relitigate the 2008 refusal in a multitude of fora, and has not done so specifically pursuant to the provisions of the Legal Profession Act.

42    The second contention is that the Council breached s 65(2) of the Legal Profession Act by failing to grant a practising certificate for more than five years. This submission arises from the applicant’s interpretation of the effect of that sub-section, which provides:

 (2)     The relevant council may also decide that the person is not entitled to apply for the grant of a local practising certificate for a stated period of not longer than 5 years.

43    The applicant conceded that there was no formal decision of the Council made pursuant to s 65(2), but said that the Council had “breached the law” by not granting a certificate for longer than five years.

44    The applicant has not held a practising certificate for longer than five years, but that is not because the Council made a determination pursuant to s 65(2) that he not be entitled to apply for one.

45    The respondents submit that the Court should have no difficulty finding that the applicant has “frequently” instituted or conducted proceedings in Australian courts and Tribunals. In making this submission, they drew on the number of matters, the repetition of subject matters (notably the 2008 refusal, the 2016 refusal, and the various discrimination complaints), and the re-litigation of points already determined.

46    The evidence does indeed disclose that the applicant has “frequently” instituted or conducted proceedings in Australian courts or tribunals. As noted in Storry v Parkyn at [66], “The meaning of the word “frequently” is relative, and must be viewed in context: see Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 (at [46]-[49] per Beazley P, Emmett JA and Sackville AJA).” The Full Court referred to the “recurring nature of Mrs Storry’s complaints in various fora” and that is the nature of the numerous proceedings commenced or carried on by the applicant here; the applicants’ proceedings in Schedule 1 range from 17 March 2009 until 12 March 2025, and the appeal from his sequestration order is still underway.

47    I have no difficulty reaching, to a level of comfortable satisfaction, that the applicant has frequently instituted proceedings in Australian courts or tribunals.

“vexatious proceedings”

48    The next step is whether those frequent proceedings relied upon by the respondents are “vexatious proceedings”.

49    I have reviewed the proceedings listed in Schedule 1. Each of the 43 proceedings noted therein is painstakingly documented in Mr Harper’s affidavit and the voluminous annexures (some 3820 pages). Only one of the proceedings (number 20 in Schedule 1) does not involve one or other, or both, of the respondents (the tenancy proceedings). None of the proceedings in Schedule 1 has been successful. Each of them has been dismissed, or permanently stayed by the operation of s 67A(3)(b) of the Supreme Court Act 1933 (ACT). In proceedings no 44 Perram J struck out grounds 3, 4, 5, and 9 of the applicant’s notice of appeal on the basis that they “do not articulate any comprehensible grounds of appeal” (at [5]) and that, in his Honour’s view, the appeal from Perry J’s order under the Bankruptcy Act 1966 (Cth) sequestering the applicant’s estate “has low prospects of success”.

50    The exception to the complete lack of success by the applicant is proceedings no 17.1, where he was able to resist, for a time, orders declaring him a vexatious litigant. During submissions before me, the applicant said that McWilliam AsJ “was very upset on the information she saw so she dismissed the application ... So when that happened, somehow ... her Honour was removed from the matter”. I queried with the applicant whether he was alleging that there was some interference by the Supreme Court of the ACT with her Honour’s continuing to hear and determine the proceedings. While he prevaricated somewhat (“I did not know how her Honour was taken out of the matter”) he went on to adopt his written submission at [495] where he said “unknown forces removed her Honour from the case after she refused the application for the respondent”. Eventually, after further questioning, the applicant withdrew his allegation that there was some connection between McWilliam AsJ finding for the applicant, and not continuing to hear the proceedings. However, he explicitly maintained his belief that this was so.

51    It is noted above that proceedings no 17.1 is one relied on by the applicant. In relation to that decision, he says that McWilliam AsJ determined that none of the proceedings prior to 2018 were vexatious, and because the Council did not appeal from that decision, the respondents are estopped from now saying that any of those proceedings were vexatious or an abuse of process. The applicant argued that because:

Your Honour, firstly, the respondent accepted her Honour’s decision as correct and did not appeal the findings and the decision in 2018. Your Honour, secondly, the respondent accepted her Honour’s decision in 2021 and did not appeal the second decision. Assuming that they forgot in 2018, they agreed, by failing to appeal, that that matter is settled. Your Honour, thirdly, both parties were present to present their case without fear of favour and contradict each other, as opposed to the case before Curtin AJ. Your Honour, fourthly, having failed to appeal the finding of her Honour, Associate McWilliam J, the respondent were estoppelled and should not take the back route to indirectly appeal … finding of the Supreme Court.

(as the passage appears in the transcript).

52    The reference to “2021” seems to be a reference to McWilliam AsJ’s striking out of the statement of claim in proceedings no 23, Ezekiel-Hart v Council of the Law Society of the ACT [2021] ACTSC 133. In the 2018 proceedings, her Honour was dealing with a rolled-up claim contesting both the failure to grant the practising certificate and other matters. Her Honour summarised the claims at [4] – [6] of her decision in proceedings no 17.1:

The Claim makes a number of allegations against two solicitors and the Law Society, who are the first, second and fourth defendants in these proceedings. The causes of action include defamation, a claim made under the Human Rights Act 2004 (ACT) (HR Act), and allegations of various offences under the Crimes Act 1900 (ACT) and the Criminal Code 2002 (ACT).

The first solicitor involved is Mr Reis, who the plaintiff alleges authored material that defamed the plaintiff. The second solicitor involved is Ms Sarah Avery, in her role as the President of the Law Society, who chaired meetings of the Law Society on 21 March 2016 and 13 September 2017.

In addition, the plaintiff [the applicant in the current proceedings] has made allegations against the Australian Capital Territory, on the basis of some form of control the plaintiff believes it exercises over the Law Society.

53    McWilliam AsJ entered judgment for the fourth defendant, struck out the statement of claim with leave to the applicant to replead, and dismissed the application that he be declared a vexatious litigant. At [109], her Honour said:

There are three reasons why I would not, on this occasion, exercise the discretion of the Court to declare the plaintiff to be a vexatious litigant.

54    Those three reasons were, in summary:

(a)    (at [110]), the plaintiff’s right to appeal from a decision not to grant him a practising certificate;

(b)    (at [112]), in effect, the defendants in those proceedings could be protected against the claims that had no reasonable prospects of success by the orders made to strike them out, as well as striking out the joinder of the President; and

(c)    (at [113]) the plaintiff was “demonstrating some degree of insight into his disputes and the litigation process” and “made submissions that could be understood and were not fanciful”.

55    The Court’s determination of the issue appears at [114]. There, her Honour said:

Given the lengthy history of litigation between the parties and the familiarity of the arguments being raised before the Court, the position adopted by Mr Reis and the Law Society has some force. However, I am not satisfied that a pattern has yet emerged where it is necessary to make a declaration under s 67A of the Act as a matter of discretion to protect the public at large. Further, because of the nature of the present proceedings, the present degree of insight demonstrated by the plaintiff and the fact that the current proceedings on their face are arguable, I would not accede to the making of a protective order on a more limited basis under s 67A(3) of the Act.

56    The kind of estoppel on which the applicant relied was not analysed in any detail by him, but would it seems be one of the three estoppels in relation to a judicial determination as explained by the High Court in Tomlinson v Ramsay Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 where French CJ, Bell, Gageler and Keane JJ said (at [22]):

Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as “cause of action estoppel”. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as “issue estoppel”. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a “judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies”. The third form of estoppel is now most often referred to as “Anshun estoppel” [After Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589] although it is still sometimes referred to as the “extended principle” in Henderson v Henderson [(1843) 3 Hare 100 [67 ER 313]]. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a “true estoppel” and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.

57    The most likely estoppel to be contended by the applicant is an issue estoppel, as it was not determined in a final judgment of the Court. The problem for the applicant in asserting an issue estoppel is that there was no “judicial determination directly involving an issue of fact or law” which “dispose[d] once for all of the issue”. Her Honour made it clear that she was of the view that “a pattern had not yet emerged” where, as a matter of discretion, a declaration was necessary (see above at [55], citing [114] of her Honour’s judgment).

58    The exercise of discretion by McWilliam AsJ that she would not, on the evidence then before her, make a declaration that the applicant was a vexatious litigant does not result in an estoppel of the nebulous kind contended for the by the applicant. It is not a “claim to a right or determination” which was determined by a final judgment, nor is it a necessarily resolved issue of fact or law. It was the judicial exercise of a discretion as to whether her Honour would, or would not, make a particular declaration at that particular time, and, in those circumstances, no estoppel arises. I consider I am able to take into account the proceedings up to and including the decision of McWilliam AsJ in 2018, because no issue or other estoppel arises.

59    The respondent identified a number of proceedings which were dismissed with an express finding that the proceeding constituted an abuse of process or that it lacked reasonable prospects. These include (substantially taken from paragraph 4.5 of the respondent’s written submissions and the decisions themselves, cross-referenced to Schedule 1):

(a)    in Ezekiel-Hart v Law Society of the Australian Capital Territory [2010] ACTCA 6; 173 ACTR 15 (delivered in ACTCA 6 of 2009, proceedings no 2), Gray P stated of the applicant's pleadings at [6]:

The pleadings are in a form which readily lend themselves to a description of proceedings that would tend to prejudice or embarrass the fair trial of whatever cause of action might be the subject of them. I must say, on my reading of the pleadings, there is certainly no clearly discernible cause of action on which the claim for damages is based.

The proceedings were dismissed as incompetent;

(b)    in Ezekiel-Hart v The Law Society of the Australian Capital Territory & Ors [2012] ACTSC 103 (delivered in SC 640 of 2011, proceedings no 6), Refshauge J determined at [116] and [117] that the applicant's statement of claim disclosed no reasonable cause of action and that it pleaded matters relevantly identical to matters which had been previously struck out. His Honour concluded that “these matters inevitably lead to the conclusion that the present proceedings are an abuse of process”. The proceedings were struck out and dismissed as disclosing no reasonable cause of action and an abuse of process;

(c)    in Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] FCA 257 (delivered in ACD 86 of 2012, proceedings no 9), Foster J stated at [61]:

It is an abuse of the processes of this court for Mr Ezekiel-Hart to engage this court’s jurisdiction for the purpose of relitigating a case which the ACT Supreme Court has twice held ought to be summarily dismissed because it has no prospect of succeeding. At [67] his Honour stated: The present case should never have been brought. It was bound to fail. In those circumstances, an indemnity costs order is warranted.

The proceedings were struck out and dismissed as an abuse of process with an order for indemnity costs. Foster J said that “the present case should never have been brought” (at [67]);

(d)    in Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] FCA 725 (delivered in ACD 55 of 2013, proceedings no 10) Yates J stated at [38] that:

[the applicant] availed himself of avenues of appeal in each proceeding. He was unsuccessful in that pursuit. The applicant appears incapable of accepting these rulings, even though, as a legal practitioner with an unrestricted practising certificate, he should well-understand the nature and legal significance of them... the primary judge was correct to find that the commencement of the proceeding in this court in an attempt to relitigate the same controversy was an abuse of the court’s process.

The application was dismissed with costs;

(e)    in Ezekiel-Hart v the Law Society of the ACT and Anor [2014] FCCA 658 (delivered in CAG 55 of 2013, proceedings no 14), Judge Neville stated at [71]: “To rehearse, again, in this court the same matter(s), in my view, brings the current proceeding squarely into the realm of principle that relates to abuse of process”. At [110] and [111] his Honour stated:

…the matter was unfortunately prosecuted by the Applicant on the basis of extravagant assertions, wholly unsupported by evidence, and in the face of abundant documentary evidence from the Respondents, which clearly disproved his contentions … In such circumstances, all Applications filed by the Applicant, in my view, have no prospect of success at all. They should be summarily dismissed.

These proceedings were dismissed and the applicant was declared a vexatious litigant, and was restrained from commencing further proceedings in the Federal Circuit Court of Australia relating to the 2008 refusal. The applicant has sought to undermine the finding of Judge Neville on an allegation in his pleadings in the current proceedings that Mr Reis lied during the proceedings before Judge Neville. This allegation is unrelated to the relief sought in the Originating Application;

(f)    in Ezekiel-Hart v Reis (No 2) [2019] ACTSC 192 (delivered in SCA 75 of 2017, proceedings no 18), Crowe AJ stated at [113]: “… it does seem to me that once the applicant’s claim against the first and second defendants was examined in light of the evidence it became abundantly clear that it was truly a hopeless claim”.

The application was dismissed with costs.

(g)    in Ezekiel-Hart v ACT Law Society (Discrimination) [2021] ACAT 29 (delivered in DT 58 of 2020, proceedings no 30), Presidential Member Robinson stated at [74] and [75]:

[74] Still, the complainant’s inability to obtain any substantive remedy in this proceeding cannot be overlooked, particularly in the context of the plethora of previous proceedings, and the availability of a means of reviewing the substantive decision. This matter, viewed in that context, and in the context of so much previous litigation, takes on the clear character of a proceeding that serves little purpose beyond vexing the respondent. Such a proceeding is an abuse of process …

[75] Many of the complainant’s allegations, so far as I can identify them, are allegations of malicious conduct by certain individuals within the Law Society. The allegations are made without proper particularisation, and in occasionally extraordinary terms. The complainant was warned of the futility of making such scurrilous allegations without evidence by Refshauge J in Ezekiel-Hart v The Law Society of The Australian Capital Territory & Ors. It appears he has not accepted this advice. The Tribunal should not be used as a forum to continue to vent such allegations, without proper particularisation or evidence. To continue to raise such allegations is an abuse of process”.

These proceedings were dismissed;

(h)    in Ezekiel-Hart v Council of the Law Society of the ACT & Anor [2021] ACTSC 133 (proceedings no 23, in which the first version of the statement of claim in SC 239 of 2020 was struck out) McWilliam AsJ stated at [80]:

…the structure of the pleading is embarrassing, in the sense described above. It contains rolled up allegations and language that is confusing, so that there are parts that are unintelligible and ambiguities that make it difficult for the defendants and the Court to understand the real substance of the claim;

(i)    in Ezekiel-Hart v Council of the Law Society (No 2) [2022] ACTSC 29 (proceedings no 23, in which the second version of the statement of claim in SC 239 of 2020 was struck out), Mossop J stated at [69]:

The fact that the applicant asserts malice or lies on numerous occasions and does so without apparent recognition of the gravity of the allegations and the need for precision in such applications should not lead the court to treat them in the same manner. If such allegations are to be made, then the rules and fairness to the defendants requires that they be properly pleaded and particularised;

(j)    in Ezekiel-Hart v Council of the Law Society of the ACT (No 2) [2022] ACTSC 131 (delivered in SC 36 of 2022, proceedings no 26), in ordering the applicant to pay indemnity costs, Kennett J stated at [8]: “In my view, if properly advised, Mr Ezekiel-Hart would have apprehended on seeing the defendants’ submissions (if not before) that his application had no chance of being successful”;

(k)    in Ezekiel-Hart v Council of the Law Society of the ACT (No 3) [2022] ACTSC 300 (proceedings no 23, in which the third version of the statement of claim in SC 239 of 2020 was struck out and the proceeding summarily dismissed) Kennett J stated at [54]:

The two particular aspects of the applicant’s claims that I have mentioned above constitute specific ways in which the proceeding can be said to be vexatious (by the inexplicable use of an inappropriate and over-complicated procedure, and by attempting to re-litigate a claim that has been decided). They tend to reinforce my overall characterisation of the proceeding as vexatious. They are also aspects of the proceeding that have no reasonable prospect of success;

and

(l)    In Council of the Law Society of the Australian Capital Territory v Ezekiel-Hart, in the matter of Ezekiel-Hart [2024] FCA 1341 (not included in the schedule, but the appeal from which is proceedings no 43, and the application for a stay and security for costs is proceedings no 44), Perry J stated at [113]:

In short, in the circumstances I have described, the allegations against the Creditors in the Debtor’s notice of opposition, submissions and affidavit are plainly scandalous, vexatious, irrelevant, and embarrassing, and I have not given them any weight. As Stewart J, for example, observed in Singh v Khan (No 2) [2021] FCA 463 at [3], parties are entitled to know with clarity the case asserted against them, and they are entitled not to have to respond to irrelevant, scandalous, frivolous and vexatious material.

60    Additionally, the respondents identified matters in which the applicant attempted to re-litigate matters which had already been determined. The following is based on paragraph 4.6 of the respondents’ submissions with reference to Schedule 1 and the decisions themselves:

(a)    in SC 640 of 2011 (proceedings no 6), ACD 86 of 2012 (proceedings no 9) and ACD 55 of 2013 (proceedings no 10), the applicant attempted to relitigate issues determined against him in proceedings no 1, SC 303 of 2009, namely, the dismissal of the applicant’s claim for damages which he alleged flowed from the delay in issuing him an unrestricted practising certificate: see Ezekiel-Hart v Law Society of the ACT [2010] ACTCA 6; 173 ACTR 15; Ezekiel-Hart v The Law Society of the Australian Capital Territory & Ors [2012] ACTSC 103 esp at [116]; Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] FCA 257 esp at [59] – [61]; Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] FCA 725 esp at [38];

(b)    in DT 58 of 2020 (proceedings no 30), the applicant made factual allegations relating to his historical dealings with the Law Society that had been dismissed in several previous proceedings: see Ezekiel-Hart v ACT Law Society (Discrimination) [2021] ACAT 29 esp at [62] – [68]. Presidential Member Robinson said at [75] “to continue to raise such allegations is an abuse of process”; and

(c)    in SC 239 of 2020 (proceedings no 23), the applicant attempted to relitigate a defamation claim that had been decided against him in ACTSC 75 of 2017 (proceedings no 18): see Ezekiel-Hart v Reis (No 2) [2019] ACTSC 192 specifically at [56], [72] – [73], [92], [99] – [102]; Ezekiel-Hart v Council of the Law Society of the ACT [2022] ACTSC 300 at [50] – [53].

61    I have also considered the way in which the applicant conducted the current proceedings. This, apart from his appeal and related applications in relation to the sequestration order, is his first set of proceedings in the Federal Court of Australia for over a decade (see proceedings nos 9 and 10). However, in the current proceedings he has, it seems, merely picked up elements of the proceedings he has been seeking to agitate for years with no success and brought them to this Court. While the Originating Process does not in terms seek relief relating to the issue of his practising certificate, it certainly reagitates the sequelae of the 2008 refusal, and couches his complaints in relation to the respondents in terms of human rights. It continues to traverse the conduct of Mr Reis and the Council during many of the other proceedings the applicant has conducted arising out of that refusal and to make unparticularised and broad allegations of inter alia malice (paragraph 17), malicious lying (paragraph 34), blatant lying (paragraphs 35 and 48), perversion of the course of justice (paragraph 36), lying and misleading the Court (paragraphs 78, 83, 87, 89, and 93-4), fabrication of documents (paragraph 82), lying in relation to an undertaking (paragraph 91), and the use of lawyers to intimidate and victimise him (paragraphs 101-2).

62    The applicant further has a tendency, as noted by counsel for the respondents, Mr Olson, to make allegations of fraud against those who determine matters against him. Mr Olson submitted:

The purpose for raising the fraud allegations before your Honour, it seems, is in support of a submission that I understand was made by Chief Ezekiel-Hart to make a collateral attack on each of the judgments that the respondents rely on with respect to the vexatious proceeding order. The attack is that each of those judgments, as I understand it, are affected by some alleged collusion by others to effect a fraud on Chief Ezekiel-Hart and the courts to prevent him from obtaining an unrestricted practising certificate or something to that effect, your Honour. It has been put several ways, but I think that’s the essence of it.

The trouble is that Chief Ezekiel-Hart has made serious allegations in this proceeding, again, without providing proper particulars that are capable of proving the fraudulent conspiracy alleged, if I can call it that, or the collusion alleged. The factual matters that Chief Ezekiel-Hart relies on are those that I mentioned earlier, your Honour, that are repeated, and they can’t be proven …

63    The applicant, as noted above, was insistent that Mr Reis had committed a “fraud on the Court” and, on the basis that “a judgment or decree obtained by fraud upon a court binds not such court, nor any other, and its nullity upon this ground, though it has not been set aside or reversed, may be alleged in a collateral proceeding” (see Cabasi v Villa [1940] HCA 41; (1940) 64 CLR 130 at 147 citing R v Saddlers Co (1863) 10 H.L.C. 404 at 431, 11 E.R. at p 1093-4). To similar effect, the applicant submitted, was SZFDE v Minister for Immigration and Citizenship [2007] HCA 35.

64    The particular frauds and other impugned acts which the applicant contends that Mr Reis committed are set out from paragraph 22 onwards in his Originating Process. In submissions, he identified three main aspects which can be summarised as:

(a)    Mr Reis gave instructions to admit a paragraph in a Notice to Admit Facts in proceedings 239 of 2020 which included admitting an allegation that the Council had been “reckless” in its treatment of the applicant, which admission was later resiled from. The relevant Notice to Admit Facts is paragraph 142 of the document located at TD26, and the respective admission is at paragraph 142 of TD27. The substance of the admission was that a document of the applicant’s was not before the Council, that its absence caused the Council not to make a decision in the applicant’s favour, and that Mr Reis had “removed” it (see Transcript pp 62 and 63);

(b)    Mr Reis acted maliciously to use the applicant’s sequestration of property in bankruptcy against him contrary to an undertaking to the contrary. The undertaking, or a reference to it, appears in Ex RX3 in transcript before Judge Neville, and is referred to in the applicants’ submissions on that subject on numerous occasions including paragraphs 19, 456, 459, 486 (citing proceedings no 16, Ezekiel-Hart v Reis & Anor (Appeal) [2017] ACAT 76 at [52] where this issue was previously litigated), 504. 685, and 1087;

and

(c)    Mr Reis lied to the Tribunal in giving evidence. The answer relied upon was that in proceedings before ACAT he said, in being asked by Senior Member Warwick about previous evidence as to whether Council had made a decision relating to the applicant at a particular time, “On the basis of information that I have subsequently received, that was clearly not correct”. The applicant refers to this line given in evidence some 34 times in his submissions. His Statement of Claim (at [65]) characterises this as a deliberate lie, and he submitted that it demonstrated that Mr Reis had “mislead courts and Tribunal for years”.

65    The applicant discussed these allegations in the following manner in his written submissions:

The question then is: Will this Court like the lawyers glorify the smelling conduct of Mr Robert Reis by failing to note for disapproval that it was the same man that lied in an affidavit before Judge Neville, including misleading the Court that I was issued with a conditional certificate to obtain a judgment in their favour; And failed to apologize to the Court for over 10 years that he continues to be reminded, that informed the rational reason why Mr Robert Reis as person with the knowledge of the facts was prevented from coming closer to this Court or making any affidavit in this this Court should dismiss this matter with vexatious order, we are not in “banana republic”, we a in Australia a Country of law and fair-go.

66    The applicant further referred to Clark v Molyneux (1877) 3 QB 237 at 247 where it is stated:

If a man is proved to have stated that which he knew to be false, no one need inquire further. Everybody assumes from thenceforth that he was malicious, that he did a wrong thing for some wrong motive. When an applicant for discretionary or equitable remedy, seeks the remedy on contradictory evidence equity will not come to his aid on such material contradictory facts.

(quote taken from submissions paragraph 398 with bolding in the submissions).

67    It is not necessary for me to determine whether these allegations against Mr Reis are supported or not. Suffice it to say that they are not relevant to the issue before this Court as to whether the proceedings instituted or conducted by the applicant are of a vexatious nature. Even were the applicant to persuade me that these were relevant matters to determine, the totality of the evidence demonstrates that these are three cherry-picked instances of an expression of a position by Mr Reis which are not illustrative of the complete picture. For example, the admission of recklessness was in relation to one particular, very specific instance in a rolled-up and convoluted Notice to Admit Facts, and was later resiled from. The proceedings in which that admission was made were dismissed. The undertaking was superseded by Court orders (see Ezekiel-Hart v Reis & Anor (Appeal) [2017] ACAT 76 (Acting Presidential Member Orr QC) (proceedings 16) at [51]); and the admission that evidence was not correct (see [64(c) above) tends more to Mr Reis’ honesty in admitting an error in proceedings some years prior than to evidence of the kind of mala fides or malice which the applicant urges me to find.

68    It does not appear from the evidence cited by the applicant taken at its highest that Mr Reis’ conduct goes close to approaching malice; however, as I have said, it not a matter which needs to be determined on this application.

69    On the basis of the matters dealt with above, which are only a summary of a portion of the significant number of pleadings, affidavits, transcripts, judgments and orders in evidence, I can confidently find that the proceedings 1-19, and 21-43 listed in Schedule 1, and proceedings no 44, all of which involve the respondents. are vexatious proceedings. Proceedings no 20, which relates to tenancy proceedings, while being unsuccessful, was not significantly dealt with in evidence or submissions, and I do not include that as part of my consideration as to whether the applicant should be subject to a vexatious proceedings order.

Should a vexatious proceedings order be made?

70    Accordingly, I am persuaded that the applicant has, within the meaning of s 37AO(1)(a) of the FCA Act, frequently instituted or conducted vexatious proceedings in Australian courts or tribunals.

71    It falls then to determine the discretionary factors which would persuade me to make such a vexatious proceedings order. As noted in Ferdinands v Registrar Burns at [15], a vexatious proceedings order is an “extreme” measure which should not be used lightly. Its purpose is not to punish the litigant for past misdeeds; Teoh at [56].

72    The severity of the making of an order is lessened by the provisions of s 37AR of the FCA Act which deal with the making of further applications by leave.

73    I have considered the likelihood that the applicant will continue to commence proceedings against the same respondents if not forestalled by an order. I am of the view that given the applicant’s history of re-litigation, and his commencing similar proceedings in different courts or tribunals, that he would, if not restrained by a vexatious proceedings order, continue to seek to institute or conduct vexatious proceedings in this Court.

74    The applicant has, in the current proceedings, and in contrast to the view taken in 2018 by McWilliam AsJ, demonstrated no insight into his conduct. As noted above in paragraphs [29] and [30], a simple request for an index without commentary resulted in 118 pages under cover of an intemperately phrased email. During the hearing the applicant made submissions for a full day, but as noted above at [35], did not engage with the questions which he was asked. Instead, he sought to argue the discrimination and victimisation elements of his claim, when substantially similar claims had been dismissed before, as well as the underlying facts relating to the 2008 and 2016. He made inflammatory accusations on a number of occasions, including that referred to above against the ACT Supreme Court or the Chief Justice for the failure to ensure that McWilliam AsJ continued to hear his matter (see T.60-61), that he would “kill” Mr Reis “in two” if he were to fight him (see T.70), that I would, if I did not find for the applicant, be “protecting Mr Reis” or “the Commonwealth” in doing so (see T.75). In fairness to the applicant, when tasked with the inappropriateness of each of these allegations, he withdrew them, but they were the more serious of the allegations made in his submissions, and many others which were allowed to pass on the day were not withdrawn.

75    This case is a clear example of this Court being at risk of becoming the next arena for the “expense, burden, and inconvenience of baseless and repetitious proceedings” brought by the applicant (see Storry v Parkyn at [74]). The applicant’s prolix style of writing, together with his inability to engage productively with the issues which are relevant to the application, mean that a Court’s time would be substantially consumed in order to make sense of the various documents and submissions made. Time spent on vexatious proceedings is a waste of the time of the Court, and deprives other litigants of judicial and other resources.

76    Importantly, the interests of the respondents to proceedings would also be protected by a vexatious proceedings order. The multitude of proceedings taken by the applicant have meant that the resources of a professional body, with regulatory and policy obligations owed to the members of the Law Society of the Australian Capital Territory and the public, have been diverted and thwarted by the constant stream of litigation over the years. These aspects cannot be adequately compensated by orders for costs. It is also relevant that the submissions, evidence, and arguments of the applicant are often inflammatory and overstated; those persons who are officials of the Council or its employees should not have to deal with such serious allegations where those allegations have little or no basis in fact.

77    It is problematic to say the least that allegations of the kind detailed above have been made by an experienced legal practitioner in the context of seeking to practise pursuant to a grant of an unrestricted practising certificate.

78    Having regard to all of the matters set out above, order 2 of the Interlocutory Application should be made, prohibiting the applicant from instituting or conducting proceedings in this court pursuant to s 37AO(1)(a). I note that ss 37AQ(1) and 37AT would allow the applicant to seek leave to institute any proceeding which he may wish to bring in the future, but such leave would only be granted were the Court satisfied, in accordance with s 37AT(4), that it were not a vexatious proceeding.

79    While that order was sought by way of an interlocutory application, it is in fact (as noted by Mr Olson during submissions) a final order (s 37AO(5)).

80    Order 1 of the Interlocutory Application seeks an order that the current proceedings be dismissed. Given the considerations above, and the fact that the current proceedings seek to revisit substantial grounds raised in previous proceedings, it is appropriate to dismiss these proceedings on the basis that they, too, are vexatious proceedings.

81    The applicant should pay the respondents’ costs of the proceedings, and of the interlocutory application. If the respondents wish to make an application for any special costs order, such an application can be made within 14 days of the making of these orders.

Associate:

Dated:    2 June 2025

Schedule 1