Ellis v Adventureworld (WA) Pty Ltd As Trustee of The Adventureworld Unit Trust
[2016] FCCA 2504
•30 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v ADVENTUREWORLD (WA) PTY LTD AS TRUSTEE OF THE ADVENTUREWORLD UNIT TRUST | [2016] FCCA 2504 |
| Catchwords: COSTS – Non-attendance in person at listed hearing – whether costs to be awarded – whether indemnity costs to be awarded – where applicant not an experienced self-represented litigant. |
| Legislation: Disability Discrimination Act 1992 (Cth) Federal Circuit Court of Australia Act 1999 (Cth), ss.66, 67, 68, 69, 70, 79 |
| Cases cited: Australian Competition and Consumer Commission v Seal-A-Fridge Pty Ltd (No.2) [2010] FCA 681 |
| Applicant: | TROY ELLIS |
| Respondent: | ADVENTUREWORLD (WA) PTY LTD AS TRUSTEE OF THE ADVENTUREWORLD UNIT TRUST |
| File Number: | PEG 295 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 23 May 2016 |
| Date of Last Submission: | 23 May 2016 |
| Delivered at: | Perth |
| Delivered on: | 30 September 2016 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr S K Shepherd |
| Solicitors for the Respondent: | Kershaw Legal |
ORDERS
The applicant pay to the respondent the costs of the adjourned hearing on 8 March 2016 (including costs thrown away), and the costs of the respondent’s application for costs in respect thereof, in the sum of $8735, by 30 October 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 295 of 2014
| TROY ELLIS |
Applicant
And
| ADVENTUREWORLD (WA) PTY LTD AS TRUSTEE OF THE ADVENTUREWORLD UNIT TRUST |
Respondent
REASONS FOR JUDGMENT
Introduction
The respondent in these proceedings, Adventureworld (WA) Pty Ltd as Trustee of the Adventureworld Unit Trust (“Adventureworld”) seeks costs against the applicant, Troy Ellis (“Mr Ellis”) in relation to Mr Ellis’ non-attendance in person at a listed hearing of Mr Ellis’ application (“Application”) alleging disability discrimination under the Disability Discrimination Act 1992 (Cth) (“DD Act”) by Adventureworld on a visit by Mr Ellis, and his elderly mother, to Adventureworld in March 2014.
It will be convenient for the Court to set out the litigation history of the matter prior to the filing of affidavits and submissions as to costs.
Litigation history
The Application was filed on 24 September 2014 and complained of disability discrimination under the DD Act in relation to Mr Ellis by Adventureworld, and sought final orders as follows (transcribed verbatim):
1.Apology.
2.Rectify the issue.
3.$1 million compensation for stress, humiliation and for money that should have been spent on infrastructure, staff training, access OH+S, safety, security, insurance public liability + duty of care.
Mr Ellis also indicated in the Application, in response to the question “Do you have any special requirements?” that he:
Can’t get up and down all the time or get up steps.
A directions hearing was held on 17 November 2014 and Mr Ellis appeared in person. Mr Ellis was ordered to file and serve a statement of claim and any affidavits in support of his claim by 15 December 2014, and the matter was adjourned to a further directions hearing on 9 February 2015.
On 12 December 2014 Mr Ellis filed what was described as a statement of claim (“December 2014 Statement of Claim”) which alleged that:
a)Mr Ellis and his elderly mother visited Adventureworld to go on the new Abyss ride in March 2014;
b)upon arriving at Adventureworld there were no disabled bays close to the entrance gate and a steep incline at the entrance gate;
c)there was no disability access to the Abyss ride; and
d)Mr Ellis lodged a complaint as he left Adventureworld, but did not hear from Adventureworld, so he contacted them to seek a refund and an apology for lack of access, but has never been given a refund, apology or explanation for the lack of access to either the Abyss ride or the Adventureworld premises.
Mr Ellis also filed an affidavit on 12 December 2014 (“Mr Ellis’ December 2014 Affidavit”) in which Mr Ellis alleges:
a)that he has suffered physical and mental damage “to a higher degree than able bodied people” because he relied upon Adventureworld “to do the right thing”;
b)that he had been “placed in grave danger” by the matters the subject of the disability discrimination claim;
c)that he had been refused a refund by Adventureworld;
d)that Adventureworld was lying about the Abyss ride not being able to be accessible to the disabled, because all modern theme park rides in Australia and internationally have disability access;
e)that Adventureworld could pay him $1 million compensation because:
i)they paid $12 million to build the Abyss ride and did not spend the money on infrastructure and safety; and
ii)his health had been damaged by emotional stress and physically dangerous bodily situations because he is subject to falls and muscle strains if forced to walk up slopes or walk a long distance from a disabled bay;
f)that he had “lost … [himself] totally” in the fight for his dignity, respect, safety and human rights and acknowledgement and adequate actions that should have been taken without the need for legal action; and
g)the stress from the legal action has made him irritable, sleepless, sad and aggressive towards those he loved.
On 9 February 2015 at the second directions hearing Mr Ellis again appeared in person. Adventureworld was given leave to file and serve a request for particulars of the December 2014 Statement of Claim within 14 days, and Mr Ellis was ordered to file and serve and particulars within a further 14 days. An order was also made for the matter to be referred to mediation, and for Mr Ellis to be referred to a Registrar of the Court for pro bono assistance with respect to the Application.
On 21 February 2015 Mr Ellis filed another document described as a Statement of Claim (“February 2015 Statement of Claim”). The February 2015 Statement of Claim is in the following terms:
1.Disability Discrimination Act.
2.Section 23 – access to premises.
3.Section 24 – goods/services/facilities.
4.Section 5 – direct discrimination.
5.I have already disclosed all statements of claim in previous statement.
A Report of Listing for a mediation on 24 April 2015 before a Registrar of this Court indicates that Mr Ellis attended in person, and that the mediation was terminated. The matter obviously did not resolve at mediation, as on 13 July 2015 there was a further directions hearing. Mr Ellis did not appear at that directions hearing, and the matter was adjourned to the next day. On 14 July 2015 Mr Ellis appeared in person, and the Court made further programming orders concerning the filing of a Defence by Adventureworld, and the filing of affidavits and outlines of submissions by Mr Ellis and Adventureworld, and an order that:
6.The matter be listed for hearing at 10.15am on 8 March 2016.
On 5 August 2015 Adventureworld filed a Defence which did not admit the allegations contained in the December 2014 Statement of Claim or the February 2015 Statement of Claim.
On 2 November 2015 Mr Ellis filed a further affidavit (“Mr Ellis’ November 2015 Affidavit”) which is in similar terms to Mr Ellis’ December 2014 Affidavit save that it adds that Adventureworld:
a)has insurance and that his compensation would come from the public liability insurer; and
b)is “paying a fortune in legal fees” but refused to negotiate with him as to compensation.
Mr Ellis also filed an outline of submissions on 2 November 2015 (“Mr Ellis’ November 2015 Outline of Submissions”). Whilst Mr Ellis’ November 2015 Outline of Submissions endeavour to address what he alleged occurred at Adventureworld in March 2014, the majority of the submissions are discursive and irrelevant to the question of whether or not Adventureworld discriminated against Mr Ellis on the basis of his disability.
On 9 December 2015 Adventureworld filed a Request for Further and Better Particulars said to be made pursuant to the orders made by the Court on 9 February 2015. Adventureworld also filed submissions on 9 December 2015.
It is pertinent at this stage to note that until the date of the listed hearing, Mr Ellis had appeared in person at the mediation and at the directions hearings in this matter, save for the directions hearing on 13 July 2015, at which he did not appear at all, but which was adjourned to 14 July 2015, when he appeared in person before the Court.
This matter was the only matter in which Mr Ellis was involved which was listed before the Court on 8 March 2016, and it was listed for hearing. On 8 March 2016 the matter was called inside and outside of the courtroom and Mr Ellis did not appear. The matter was stood down for a few minutes, and when the matter was re-called the Court observed that Mr Ellis appeared, without leave, by telephone. The Court indicated to Mr Ellis that it was expecting him to appear in person, and that there had been no application for him to appear by telephone or any other means. The Court then asked whether or not Mr Ellis sought to make such an application, and Mr Ellis responded affirmatively, and made some observations about accessibility to the Commonwealth Law Courts building in Victoria Avenue in Perth (“Commonwealth Law Courts Perth”). Counsel for Adventureworld indicated to the Court that any application for Mr Ellis to appear other than in person would be opposed. The Court indicated that it intended to adjourn the listed hearing and make orders with respect to Mr Ellis’ mode of appearance, and as to the costs of that day. When the Court indicated that it intended to make an order that Mr Ellis file and serve an application supported by an affidavit or affidavits to appear at the adjourned hearing of the matter by video-link or telephone, Mr Ellis inquired as follows:
Which one was that for, your Honour? Is that – which one? Is that Redwave or Adventureworld or West Centre?
to which the Court indicated that:
It’s an order made in this case, Mr Ellis, against – this is Adventure World.
Transcript, 8 March 2016, page 4.
The Court made orders as follows on 8 March 2016:
1.The applicant file and serve an application in a case supported by affidavit or affidavits to appear at the adjourned hearing of this matter by video-link or telephone by 8 April 2016.
2.The respondent file and serve any reply affidavit or affidavits by 8 May 2016.
3.The applicant’s application in a case be listed for hearing, with leave to the applicant to appear by telephone, on 23 May 2016 at 2.15pm.
4.The respondent file and serve an outline of submissions with respect to the costs of today by 8 April 2016.
5.The applicant file and serve an outline of submissions with respect to the costs of today by 8 May 2016.
The Court observes that no application in a case supported by affidavit or affidavits to appear at the adjourned hearing of this matter by video-link or telephone was made by 8 April 2016, and none has been made as at the date of these Reasons for Judgment.
Submissions and evidence
Adventureworld’s costs submissions and affidavit
On 8 April 2016 Adventureworld filed submissions on the costs of the adjournment on 8 March 2016 (“Adventureworld’s Costs Submissions”).
Adventureworld’s Costs Submissions were as follows:
a)Mr Ellis sought to have his Application listed at a directions hearing in July 2015, which he attended;
b)Mr Ellis did not seek orders regarding his attendance in Court at the July 2015 directions hearing;
c)the matter was listed for hearing on 8 March 2016 in July 2015 (Adventureworld’s Costs Submissions incorrectly refer to the hearing on “7 March 2016”, but the Court has used the actual date of 8 March 2016 throughout the following summary of Adventureworld’s Costs Submissions);
d)Mr Ellis was present in Court when the matter was listed for hearing;
e)Mr Ellis made no objection to the matter being heard in the Commonwealth Law Courts Perth;
f)prior to 8 March 2016 Mr Ellis made no application to have the matter heard in an alternative location or to attend the hearing remotely;
g)despite correspondence passing between Adventureworld’s solicitors and Mr Ellis prior to hearing, Mr Ellis gave no indication that he did not intend to attend the hearing on 8 March 2016, and did not give any notice to the Court or Adventureworld that an application for appearance by telephone or video link might be made on 8 March 2016;
h)Mr Ellis had previously attended at the Commonwealth Law Courts Perth for directions hearings and mediation conferences in the matter;
i)no reason was advanced by Mr Ellis for his failure to apply to attend the hearing by telephone or video link prior to the hearing on 8 March 2016;
j)Adventureworld was ready for hearing on 8 March 2016;
k)Mr Ellis did not attend the hearing on 8 March 2016;
l)Mr Ellis eventually was before the Court, without leave, by telephone on 8 March 2016;
m)it was apparent from what passed between Mr Ellis and the Court that Mr Ellis was not ready for hearing on 8 March 2016. Mr Ellis appeared to be unaware which of a number of applications brought by him was before the Court;
n)in response to an enquiry by the Court, Mr Ellis indicated, for the first time, that he intended to apply to attend the hearing of the matter by telephone or video link;
o)it would not have been possible to conduct the hearing on 8 March 2016 because, amongst other things, it would not have been possible to fairly and properly undertake cross-examination of Mr Ellis and any witnesses called by him with reference to documents and photographs;
p)the consequence of the adjournment of the hearing on 8 March 2016 is that the costs incurred by Adventureworld in preparing for hearing on 8 March 2016, in addition to the cost of attending the Court on that day were thrown away;
q)the grounds for Mr Ellis seeking adjournment of the hearing were not in any way related to any conduct of Adventureworld;
r)the date listed for hearing of the Application was ineffective solely due to the conduct of Mr Ellis. Adventureworld is entitled to be compensated for all of its reasonable costs wasted as a result;
s)the Federal Circuit Court has power to award costs. Except as provided by any other Act or the Federal Circuit Court Rules (Cth) (“FCC Rules”), the award of costs is at the discretion of the Federal Circuit Court: Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”), s.79;
t)the usual principles as to costs are to be applied: Fetherston v Peninsula Health (No. 2) [2004] FCA 594; (2004) 137 FCR 262; (2004) 79 ALD 424 at [8] per Heerey J (“Fetherston (No. 2)”); and
u)the appropriate order in circumstances where a late application for adjournment is made without notice and where Mr Ellis, acting properly and with reasonable diligence could have avoided the adjournment is an order that Mr Ellis pay Adventureworld's costs including costs thrown away: Nelson & Anor v Ji [2015] FCCA 3573 at [11] per Judge Dowdy; Warren v Queensland Law Society Incorporated (No.2) [2015] FCCA 2829 at [15] per Judge Vasta.
On the above bases Adventureworld seeks costs arising from the 8 March 2016 adjournment including:
a)the costs of the hearing on 8 March 2016; and
b)costs thrown away,
to be paid on an indemnity basis.
Adventureworld’s Costs Submissions were supported by an affidavit of Adventureworld’s lawyer, Michele Ann Kershaw sworn and filed on 8 April 2016 (“Ms Kershaw’s April 2016 Affidavit”), which relevantly provided as follows:
4. On 26 February, 2016 I wrote to the Applicant. In my letter, I referred to the trial of the matter being 8 March, 2016.
5. On 1 March, 2016 I received a response from the Applicant to my letter dated 26 February, 2016.
6. Between 14 July, 2015 and 8 March, 2016 I did not receive any indication from the Applicant that suggested that he intended to seek to adjourn the trial of the matter or might otherwise not be ready for trial on 8 March, 2016.
7. The Respondent instructed Stuart Shepherd of counsel to prepare for and attend at the trial of these proceedings on behalf of the Respondent.
8. On 8 March, 2016 at 10:15am I attended at the Federal Circuit Court of Australia with Mr Shepherd, Mr Tim Summers, a junior solicitor and Mr Ross Ogilvie, a witness for the Respondent.
Ms Kershaw’s April 2016 Affidavit at [4]-[8].
Ms Kershaw’s April 2016 Affidavit then sets out what occurred at the hearing on 8 March 2016 (as to which see [16]-[17] above), noting that Mr Ellis “… indicated, as far as I am aware for the first time, that he intended to make an application to conduct his case remotely by telephone or video link …”: at [12]. Ms Kershaw’s April 2016 Affidavit then provides as follows:
15. Given the nature of the application and the allegations made by the Applicant, it is likely that the Respondent will seek to cross-examine the Applicant and any witnesses called by the Applicant in support of his application. A number of documents, including photographs may need to be shown to the Applicant during the course of cross-examination and the trial generally.
16. The matter could not have proceeded in a manner which was fair to the Respondent on 8 March, 2016 without the attendance of the Applicant.
17. As a consequence of the adjournment, the costs of the Respondent and its representatives preparing for trial on 8 March, 2016 have been thrown away.
18. If the matter is re-listed for trial, the Respondent and its representative will again be required to prepare for trial of the matter.
Ms Kershaw’s April 2016 Affidavit at [15]-[18].
Mr Ellis’ costs submissions
On 24 April 2016 Mr Ellis filed submissions (“Mr Ellis’ Costs Submissions”), but no affidavit, in relation to the costs issue.
Insofar as Mr Ellis’ Costs Submissions seek to address the issue of costs (albeit it not in a conventional manner) they provide as follows:
1.There was a MDIATION for this case originally and because the REGISTRAR was so unprofessional, aggressive, rude and defamatory, it is the FEDERAL COURTS fault. SEND THE FICTITIOUS AND UNTAXED BILL C/O FEDERAL ATTORNEY GENERAL, so TOUGH!
2.I am not paying the zillionaire owner of ADVENTURE WORLD ONE RED CENT, seeming as he has a dangerous park and a $12 MILLION INACCESSIBLE RIDE, now make that 2, ABYSS and the KRAKEN. 2 good words for where this law firm is taking them, into an abyss and a boot in the kraken, so TOUGH!
3.This law firm is absolutely disgusting and after all of these FEDERAL COURT CASES are over, I will be naming and shaming you all publicly and trying to get you all out of the profession. You did not have to take this case and ADVENTURE WORLD did not have to hire a lawyer, as I did not, so TOUGH!
4.You caused me to lose time and money and for this case to drag on, so it is your fault and not mine, so TOUGH!
5.I am unwell DISABLED PERSON and you have a team of lunatic monkeys working for you and I do not have that luxury with my poor health, so TOUGH!
6.This law firm sent their COURT SUBMISSIONS to me at the end of the day on 8 APRIL 2016 and not by 8 APRIL 2016, as instructed by HIS HONOUR JUDGE LUCEV and that set me back on time, productivity stress and money, so TOUGH!
7.You do more things wrong and delay, delay, delay, costing me a large fortune of health and life force, which is MY CURRENCY, so what is GOOD FOR THE GOOSE, IS GOOD FOR THE GANDER, so TOUGH!
8.The DISABLED AUSTRALIANS are treated no better than ABORIGINAL AUSTRALIANS and these very LAWYERS, CORPORATES and the COMMUNITY wonder why we are so outspoken and call a SPADE A SPADE to the ABLE BODIED SCUM BAGS who think they have the right to then make our already impossible lives more difficult as cowardly thugs to abuse the VULNERABLE.
9.There was an oversight or a communication between myself and the FEDERAL COURT, where an understanding that I thought was reached about PHONE CONFERENCING was established due to my DISABLED HEALTH BEING SO POOR, so if you obscene bullies with a cracker based law certificate want to get nasty, I will expose it to the public and the media, for what you and ADVENTURE WORLD are doing to our court system, taking on a DISABLED PERSON, when you paid FOREIGNERS, with an OBSCENE FOREIGN RELIGION, almost $20k for YOUR STUPIDIY REASONS.
10.This is intentional bullying and victimisation, as well as an abuse of the FEDERAL COURT and an AFFRONT TO HUMANITY, DIGNITY AND GOOD TASE. Do you want me to take you in front of the HREOC TOO?
(Transcribed verbatim – the Court has assumed that references to the Federal Court in Mr Ellis’ Costs Submissions are intended to be references to the Federal Circuit Court of Australia).
In direct response to particular paragraphs of Adventureworld’s Costs Submissions, Mr Ellis’ Costs Submissions provide as follows:
a)in response to paragraph [20(j)] above : “DO NOT BE A SMART ASS, so TOUGH!”;
b)in response to paragraph [20(q)] above: “YOU HAVE CAUSED MULTIPLE ADJOURNMENTS AND DELAYS ON ME, so TOUGH!”;
c)in response to paragraph [20(r)] above: “I WILL NOT BE COMPENSATING A DISGUSTING ZILLIONAIRE ONE RED CENT, so TOUGH!”; and
d)in response to paragraph [20(s)-(u)] above: “YOUR CLIENT HAS CAUSED ME A MOUNTAIN OF STRESS AND DISTRESS, so TOUGH!”.
(The quotes are transcribed verbatim).
Following the direct response in Mr Ellis’ Costs Submissions to particular paragraphs of Adventureworld’s Costs Submissions (that is from the top of page 3 through to the end of page 9 of Mr Ellis’ Costs Submissions) there appear to be only two passages which might be relevant to the issue of the costs of the adjournment on 8 March 2016, they being:
a)a submission that there “is nothing scandalous, frivolous or vexatious” in Mr Ellis’ claims or emails to Adventureworld: Mr Ellis’ Costs Submissions at page 4 at [11]; and
b)that Adventureworld is bringing the administration of justice into disrepute and that he rejects the “COSTS OF THIS CLAIM WITH EXTREME PREJUDICE”: Mr Ellis’ Costs Submissions at page 5 at [14].
The remainder, and thus the majority, of Mr Ellis’ Costs Submissions are irrelevant to the question immediately before the Court as to the costs of the adjournment on 8 March 2016. They are irrelevant because they do not deal with the issue of costs, but are rather a discursive and rambling discourse on many matters, principally the treatment of the disabled in the community, in particular by corporations, politicians and lawyers, and which are therefore of no assistance to the Court in determining the issue of costs of the adjournment on 8 March 2016. Large parts of Mr Ellis’s Costs Submissions are also scandalous within the usual meaning of the authorities: Cavill Business Solutions Pty Ltd v Jackson [2005] WASC 138 at [25] per Hasluck J; C2C Investments Pty Ltd, in the matter of C2C Investments Pty Ltd v Leigh (No. 3) [2012] FCA 680 at [5]-[6] per Yates J (and the authorities there cited). It is, however, unnecessary to deal with these matters because:
a)they are scandalous and irrelevant;
b)Adventureworld’s Costs Submissions did not have to reply to Mr Ellis’ Costs Submissions because Adventureworld’s Costs Submissions were filed first; and
c)the matter of costs being decided on the papers, has meant that it has been unnecessary for Adventureworld to reply in writing, or make oral submissions, in relation to the irrelevant and scandalous parts of Mr Ellis’ Costs Submissions.
Hearing – 23 May 2016
When the matter came before the Court again on 23 May 2016 Mr Ellis appeared by telephone (pursuant to order 3 of the 8 March 2016 orders). The Court, having observed that the only activity by the parties had been the filing of materials concerning costs, made orders that the issue of costs be determined on the papers. Otherwise, the matter was adjourned to a further directions hearing on a date to be fixed.
Consideration
Power as to costs
The Court has power to award costs in human rights proceedings as set out in s.79(2) and (3) of the FCCA Act, as follows:
(2)The Federal Circuit Court of Australia or a Judge has jurisdiction to award costs in all proceedings before the Federal Circuit Court of Australia (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
(3)Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit Court of Australia or a Judge.
Rule 21.02(2) of the FCC Rules provides as follows:
(2) In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c) refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d) set a time for payment of the costs, which may be before the proceeding is concluded.
Rule 21.10 of the FCC Rules provides as follows:
Unless the Court otherwise orders, a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with Parts 1 and 2 of Schedule 1; and
(b) disbursements properly incurred.
Schedule 1 of the FCC Rules, referred to in r.21.10(a) of the FCC Rules, provides for an event based assessment of costs, with the costs for each event fixed by the Schedule.
Usual basis for costs
As to the usual basis for fixing costs it has been observed as follows:
a)in Hinchliffe v University of Sydney (No. 2) [2004] FMCA 640 at [10]-[12] per Driver FM the Federal Magistrates Court of Australia observed as follows:
10. It follows from the foregoing analysis that the respondent should receive an order for costs on a normal party/party basis, which the applicant has already conceded. Ordinarily, in human rights proceedings, costs are assessed in accordance with the event based scale appearing in schedule 1 to the Federal Magistrates Court Rules. That scale was adopted by the Court in order to provide simplicity and certainty in determining issues of costs. In some cases, as is likely to be the case here, a successful party will incur significantly more in costs than is recoverable pursuant to the Court scale. It does not follow that that is an unjust result, where it occurs. The Court scale is publicly known and parties to litigation should be aware that the scale is likely to determine their maximum recoverable costs should they succeed. If parties wish to incur significantly more costs in litigation in this Court than they could ever recover, that is a matter for them.
11. In any event, it should not be assumed that because substantial legal costs have been incurred by a party, their money has been well and wisely spent. The scale of costs ordinarily applicable in human rights proceedings reflects the Court’s assessment of what costs can be accepted as reasonable in ordinary proceedings. If proceedings are exceptionally long or complex there is the opportunity to ask for the proceedings to be transferred to the Federal Court, where a more appropriate scale of costs for long and complex proceedings would be available. That was not done in this case.
12. … This Court’s event based costs scale establishes a level playing field. I see no reason to depart from it in these proceedings.
(footnotes omitted);
b)in Piersons Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No. 3) [2010] FMCA 250 (“Piersons Pro-Health (No. 3)”) at [43] per Lucev FM the Federal Magistrates Court of Australia observed that it is well established and well known that the primary source generally used for fixing costs in general federal law proceedings (including, relevantly, human rights proceedings) in this Court is the event-based scale in Schedule 1 of what are now the FCC Rules;
c)costs usually follow the event: Fetherston (No. 2) at [8]-[9] per Heerey J, subject to the costs limitations imposed by Schedule 1 of the FCC Rules, but noting that the Court has discretion to vary the costs provided for by Schedule 1 of the FCC Rules: Piersons Pro-Health (No. 3) at [43] per Lucev FM; Burns v Director General of the Department of Education (No. 2) [2015] FCCA 2293 at [29] per Judge Lucev (“Burns (No. 2)”);
d)in Hudson v Australian Broadcasting Corporation [2016] FCCA 917 at [18] per Judge Manousaridis it was observed (footnoting Piersons Pro-Health (No. 3) as an example) that:
Part 1 of Schedule 1 to the FCC Rules, therefore, is a mechanism for ensuring that costs incurred in a proceeding in this Court are proportional to the amount and interests at stake in the proceeding. … It may safely be assumed that costs calculated by applying Part 1 of Schedule 1 would be substantially less than the costs that would be assessed on a party and party basis.
e)that the departure from the event based scale is the exception rather than the rule: Schimann & Anor v Carnival PLC [2014] FCCA 593 at [8] per Judge Jarrett; Burns (No. 2) at [29] per Judge Lucev.
The failure by an applicant to attend the listed hearing of their own application would, in all but exceptional circumstances, warrant a costs order against an applicant: Bob Jane Corporation Pty Ltd v Webtyre.net Pty Ltd [2012] FCA 168 at [1]-[28] per North J.
In this case the basic factual context is as follows:
a)the Application had been listed for hearing on 8 March 2016 almost eight months earlier on 14 July 2015;
b)save for the directions hearing listed on 13 July 2015, Mr Ellis had personally attended in Court at all of the directions hearings and before a Registrar in the mediation in respect of the Application;
c)Mr Ellis gave no notice to either Adventureworld or to the Court that:
i)he would not be in attendance in Court at the hearing of his Application on 8 March 2016; and
ii)he would seek to appear on the hearing of his application from a location outside the Court, and by telephone; and
d)Adventureworld incurred costs in preparing for the hearing, and in appearing at the hearing, including the costs of Counsel being briefed and appearing.
The Court observes that even when orders were subsequently made allowing for Mr Ellis to apply, and to file affidavit evidence in support, of an application in a case to allow him to appear other than in person before the Court on the hearing of the Application, no application in a case, nor any affidavits, have been filed.
The Court further observes that, whilst not impossible, it might be difficult for a hearing of a claim such as that involved in the Application to proceed without Mr Ellis being personally present, particularly given the evident desire of Adventureworld to cross-examine Mr Ellis and put photographs to him. Because Mr Ellis gave no notice that he would not be attending Court at the hearing of his Application on 8 March 2016 it was not possible to, and no steps were taken, to consider the practicability of Mr Ellis appearing from a remote location, and being cross-examined whilst in that remote location.
The Court notes that Mr Ellis asserts an “understanding” about “phone conferencing” in relation to his appearance before the Court, and an “oversight” in that regard.
Mr Ellis has filed no evidence as to the alleged understanding or oversight, and in particular:
a)with whom the understanding was made, and when it was made;
b)what the precise nature of the “understanding” was;
c)how any such “understanding” interacted with the provisions of ss.66 (testimony by video link or audio link), 67 (appearance of persons by video link or audio link), 68 (making of submissions by video link or audio link), 69 (conditions for use of video links and audio links) and 70 (putting documents to a person by video link or audio link) of the FCCA Act; and
d)the nature of the alleged oversight.
It is fair to observe that Mr Ellis has appeared by telephone at various directions hearings and interlocutory hearings in some of the other matters in this Court referred to at [51] below, but he has not appeared at any final hearing of a matter in this Court by telephone.
As is evident from a consideration of both Ms Kershaw’s Affidavit, and the transcript of the 8 March 2016 hearing, there was no expectation or understanding, on the part of either Adventureworld or the Court, that Mr Ellis would appear other than in person before the Court on the hearing of the Application.
Ordinarily, in respect of a final hearing at which evidence is to be taken, it would require an order of the Court before there could be an expectation or understanding of the kind adverted to by Mr Ellis, with such order issuing following a formal hearing to address the requirements of ss.66-70 of the FCCA Act in respect of the appearance, giving of testimony and making of submissions by a person other than in person before the Court: see, for example, Picos v HealthEngine Pty Ltd & Anor [2014] FCCA 640 at [40]-[71] per Judge Lucev; and in relation to similar provisions in the Federal Court of Australia Act 1976 (Cth), see Commissioner of Taxation v Oswal (No. 5) [2015] FCA 1504 at [24]-[56] per Gilmour J.
Other than at the most general level of submission there is nothing before the Court to indicate any basis for Mr Ellis not to have attended the hearing of the Application on 8 March 2016. The Court notes what is said in the Application concerning Mr Ellis’ inability to navigate steps or to get up and down constantly, but an answer as to the applicant’s requirements when attending Court, is not evidence, and is not sufficient to establish any difficulty in actually attending the Court, either on 8 March 2016 or otherwise. There is simply no evidence as to why it is that Mr Ellis did not attend on 8 March 2016, or, critically, as to the actual nature of his disability and the effect of that disability in relation to his capacity to attend in person before the Court, or, alternatively, why it might make it necessary for him to attend any final hearing of this Application other than in person before the Court. In any event, any suggestion that it was not possible for Mr Ellis to attend Court on the hearing of the Application on 8 March 2016 is vitiated, at least to some degree, by the fact that Mr Ellis attended directions hearings and the mediation in respect of his Application in person in the Commonwealth Law Courts Perth on various dates prior to the 8 March 2016 hearing.
In relation to Mr Ellis’ Costs Submissions, and ignoring the scandalous and improper nature of much that is said therein, the Court observes that:
a)the conduct of a mediation by a Registrar of this Court attended by Mr Ellis more than 10 months before the 8 March 2016 hearing, and following which Mr Ellis appeared in person before the Court on a directions hearing less than two months later, is of no relevance to Mr Ellis not attending the listed hearing of the Application on 8 March 2016;
b)the financial capacity of Adventureworld, and whether or not Mr Ellis intends to comply with any costs order (if one is made), are not bases for not making a costs order: Australian Competition and Consumer Commission v Seal-A-Fridge Pty Ltd (No. 2) [2010] FCA 681 at [47] per Logan J;
c)there is nothing in the Court record which would indicate any fault or misconduct in the conduct of the matter on the part of Adventureworld’s lawyers (or Counsel for Adventureworld), and Mr Ellis has filed no evidence to substantiate his assertions concerning such conduct;
d)there is no evidence of a loss of time or money by Mr Ellis as a result of the manner in which the Application has been dealt with, and nothing in the conduct of Adventureworld’s lawyers (or Counsel) which would indicate that their conduct caused Mr Ellis to lose time or money. Indeed, the conduct of litigation, insofar as time and programming is concerned, has been entirely normal for proceedings of this type, and the only loss of time has been caused by Mr Ellis’ failure to attend the directions hearing on 13 July 2015 and the hearing on 8 March 2016;
e)Mr Ellis has filed no evidence, and in particular no medical evidence, to justify his non-attendance on 8 March 2016 on the grounds of his health, and no medical evidence which would indicate that the conduct of the litigation, and the conduct of Adventureworld’s lawyers (including Counsel) has caused any detriment to his health whatsoever;
f)the receipt of Adventureworld’s Costs Submissions “on” 8 April 2016 complies with the orders made on 8 March 2016 that those submissions be filed and served “by” 8 April 2016, but in any event, the date of receipt of Adventureworld’s Costs Submissions is irrelevant as to whether Mr Ellis ought to pay the costs of the earlier adjourned hearing on 8 March 2016;
g)general submissions concerning the treatment of disabled Australians and tirades against non-disabled Australians, foreigners and lawyers, including what appears to be a threat to “take” Adventureworld’s lawyers “in front of” the “Human Rights and Equal Opportunity Commission”, are inappropriate and unhelpful to the Court (the reference to the Human Rights and Equal Opportunity Commission is no doubt intended to be a reference to the Australian Human Rights Commission). In Manolakis v Carter [2008] FCAFC 183 (“Manolakis”) the Full Court of the Federal Court observed at [10]-[12] per Spender, Graham and Tracey JJ that:
10 Courts do not exist to allow self-represented litigants to make scatter-gun claims against all and sundry and to indulge themselves by using proceedings they have instituted as vehicles for what might be seen to be private ‘Royal Commissions’.
Nor do courts exist to allow the frustrations of self-represented litigants to be relieved by the making of abusive or contemptuous tirades directed at those whom they perceive to have wronged them, judicial officers who may have decided not to find for them, or judges whose duty it is to hear them, when such litigants sense that the expressions of their grievances are not being favourably received by the court.
11 One does not petition a court as one might the Speaker or other officer-bearer in a House of Parliament, nor does one approach a court as if its role was to serve as an Ombudsman.
12 An aggrieved self-represented applicant must, like any other litigant, address:
•his or her standing to make claims against other persons,
•the jurisdiction of the court in which he or she wishes to make those claims,
•the precise identity of the parties against whom the claims are to be made,
•the relief that is to be sought, and
•the facts which are said to found an entitlement to that relief.
The general submissions made in Mr Ellis’ Costs Submissions concerning the above issues set out above do not assist the Court to determine the issue of the costs of Mr Ellis’ non-attendance at the hearing on 8 March 2016.
When regard is had to all of the circumstances as set out above it is plain that Adventureworld was ready to proceed at the hearing of the Application on 8 March 2016. The hearing did not proceed because of Mr Ellis’ conduct in failing to make an application in a case for the hearing to proceed in a manner other than that in which it would normally proceed, or, alternatively, at least, to put Adventureworld (and the Court) on notice that he intended to make such an application in a case. As such, Adventureworld were put to the expense of preparing for, and appearing at, the hearing on 8 March 2016. It was Mr Ellis’ conduct which put Adventureworld to that expense, unnecessarily. There was no fault at all in Adventureworld’s conduct, or the conduct of its lawyer’s or Counsel, at any time prior to the listed hearing on 8 March 2016 (or, indeed, subsequently). In those circumstances, it is plain that, having regard to the usual basis for the award of costs in this Court, and the fact that costs ordinarily follow the event, that Mr Ellis must pay the costs of Adventureworld’s preparation for, and appearance at, the hearing on 8 March 2016, including costs thrown away.
As to the quantum of those costs the Court deals with that matter below: see [52]-[56] below, after having dealt with Adventureworld’s application for indemnity costs.
Indemnity costs
The Court has jurisdiction to grant indemnity costs: FCCA Act, s.79(2) and (3); Suda Ltd v Sims (No. 2) [2014] FCCA 190 at [22] per Judge Lucev. The law as to when it is appropriate for the Court to award costs on an indemnity basis is well established, and the general principles applicable to indemnity costs orders are found in Colgate-Palmolive Company & Anor v Cussons Pty Limited (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 28 IPR 561 (“Colgate-Palmolive”).
In determining whether to award indemnity costs the Court has a very wide discretion, to be exercised judicially. The normal practice, not to be lightly departed from, is to provide for costs on a party-party basis. Nevertheless, there are certain issues to which the Court will give consideration, and have to weigh, when determining whether to make, and the extent of, an indemnity costs order. Indemnity costs are not the norm. An indemnity costs order should only be made where the issues establish special or unusual circumstances warranting an indemnity costs order. Those issues relevantly include, but are not limited to, the following:
a)whether a party should have known that there was no prospect of success in the case;
b)where a party alleges fraud or forgery, knowing the accusation to be false, or irrelevant to the issues;
c)whether the party against whom indemnity costs is sought is a self-represented litigant, and whether the self-represented litigant ought to escape the consequences of indemnity costs;
d)where a party persists in the making of allegations which ought not to have been made, or in undue prolongation of groundless contentions; and
e)where a party’s conduct causes loss of time to the Court, and to other parties.
See Colgate-Palmolive at 233-234 per Sheppard J; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397 at 400-401 per Woodward J; Roy Galvin & Co Pty Ltd v Ives [2013] FCCA 1645 at [60] per Judge Lucev.
Mr Ellis’ status as a self-represented litigant does not entitle him to disregard the Court’s procedural rules, or to treat the Court as if it were some kind of board of inquiry with unlimited general jurisdiction: Manolakis at [10]-[12] per Spender, Graham and Toohey JJ.
The Court can take judicial notice of the fact that Mr Ellis has filed a number of matters in this Court alleging disability discrimination (25 matters are current as at the date of these Reasons for Judgment). Mr Ellis does not, however, appear to be an experienced self-represented litigant. Although he has instituted the abovementioned proceedings in this Court, only two matters have previously been the subject of Reasons for Judgment in this Court. In both of those matters Mr Ellis’ arguments were successful, and the issue of costs did not arise: see Ellis v Silver Vision Pty Ltd trading as Arirang Korean BBQ Restaurant & Café [2016] FCCA 907 (unsuccessful application by the respondent corporation for security for costs) and Ellis v FJM Property Pty Ltd [2016] FCCA 808 (unsuccessful application by respondent corporation to appear other than by a lawyer). Even though common sense, and a sense of common courtesy, as well as a semblance of understanding of relevance, might have resulted in Mr Ellis not descending into irrelevant and scandalous material, particularly in Mr Ellis’ Costs Submissions, the Court considers that it is not in the interests of the administration of justice to impose an indemnity costs order on Mr Ellis in circumstances where:
a)the irrelevant and scandalous material was not relevant to the issue of Mr Ellis’ non-attendance at the hearing on 8 March 2016, and the irrelevant and scandalous material was not required to be dealt with at all by Adventureworld, in that it did not have to make written or oral submissions concerning that material;
b)Mr Ellis is not an experienced self-represented litigant, and not one who has previously had to deal with the question of costs in this Court. By reason of these Reasons for Judgment, Mr Ellis is on notice concerning costs in respect of the future conduct of these proceedings; and
c)save for Mr Ellis’ unexplained absence at the directions hearing on 13 July 2015, there had been nothing irregular in his conduct in the matter prior to his non-attendance at the hearing on 8 March 2016, and whilst there is no evidence as to why Mr Ellis did not attend in person at the hearing on 8 March 2016, there is likewise no evidence that his non-attendance was intentional.
Quantum of costs
The costs under Schedule 1 of the FCC Rules usually associated with a one day hearing where Counsel is briefed are as follows:
a)item 6 – preparation for final hearing of a one day matter - $6,493;
b)final hearing costs for attendance of solicitor at hearing, to take judgment and explain orders, both $294 and the daily hearing fee in Item 13 that applies to the hearing, in this case $2,162 (Item 13(c)); and
c)item 12 – an advocacy loading of 50% of the daily hearing fee in item 13 that applies to the hearing, that is, $1,081.
The Court observes that, as is apparent from the litigation history of the matter, and the nature of the claims made, the hearing of the matter was one which was sufficiently complex to warrant Counsel being briefed to appear, and therefore one in respect of which an advocacy loading under item 12 is appropriate.
Having regard to the fact that the hearing did not proceed on 8 March 2016 it is plain that a significant part of the costs of the preparation for final hearing will be thrown away by reason of the fact of the hearing not proceeding, and also because any future hearing will not now be listed until at least February 2018. That means that a significant proportion of the costs incurred by Adventureworld in preparation for the hearing on 8 March 2016 will have to be re-incurred in getting the matter up for any future hearing. Significant parts of the work done, particularly as to the law, and the proofing of any witness or witnesses, may need to be re-visited, but will probably not need to be completely re-done, but there will be significant amounts of work in Counsel and solicitors re-familiarising themselves with the materials, and in taking steps to get the matter ready for hearing a second time. In the Court’s view, and particularly given the length of time which will elapse before any future hearing, it is likely that as much as 50% of the preparation for final hearing will need to be re-done. In those circumstances, it is inappropriate that Adventureworld receive all of the costs under item 6 for preparation for final hearing of a one day matter, and in the Court’s view it is more appropriate that it receive an amount of approximately 50% (say $3,250) for preparation which has been thrown away by reason of the adjournment of the listed hearing on 8 March 2016.
Otherwise, the costs for attendance at the final hearing were fully incurred, and having regard to the fact that both solicitor and Counsel were attending, the Court does not see any reason to reduce the item 9, 12 and 13 costs, save as to item 9(a) (being $294) which normally applies to taking judgment and explaining orders. Adventureworld, having been successful in its application for costs (which was effectively an application in a case), is also entitled to the costs of the application in a case, under item 3(a), namely $1,801 plus a sum under item 3(b) for the hearing on 23 May 2016, which was effectively a short mention: see [29] above, but in respect of which it was appropriate to have Counsel appear, given that it was listed for hearing (and see also [53] above). That sum under item 3(b) is $294 plus 50%, or $441. The costs for the application in a case are therefore $2,242.
In the above circumstances, the amount of costs to be ordered by the Court to be paid by Mr Ellis will be $8,735, being $3,250 under item 6, $2,162 under item 9(b) (read with item 13), $1,081 under item 12, and $2,242 under item 3.
Conclusion on costs orders and quantum
The Court has concluded that:
a)it is appropriate that there be a costs order against Mr Ellis in accordance with Schedule 1 of the FCC Rules;
b)it is not appropriate that there be an indemnity costs order against Mr Ellis; and
c)Mr Ellis should pay to Adventureworld the costs of the adjourned hearing on 8 March 2016 (including costs thrown away), and the costs of Adventureworld’s application for costs, in the sum of $8,735, by 30 October 2016, and there will be an order to that effect.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 30 September 2016
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