Ellis v Burswood Nominees Ltd Trading as Crown Resort
[2019] FCCA 1819
•10 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v BURSWOOD NOMINEES LTD TRADING AS CROWN RESORT & ANOR | [2019] FCCA 1819 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a case to summarily dismiss originating application – whether no reasonable prospect of success. EVIDENCE – Admissibility – whether CCTV footage unfairly prejudicial. REMEDIES – Orders sought for prosecution of assault – orders sought for revocation of security guard licences – whether Court can make orders. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), ss.46PH, 46PO, 46PR |
| Cases cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420; (2009) 84 ALJR 19; (2009) 260 ALR 628; [2009] Aust Torts Reports 82-042 Ainsworth v Burden [2005] NSWCA 174 Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120 George v Fletcher (Trustee) [2010] FCAFC 53 Ghanem v Australian Research Council [2014] FCAFC 132 Huntley v NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827; (2015) 251 IR 136 Oldham v Capgemini Australia Pty Ltd & Anor [2015] FCA 1149; (2015) 241 FCR 397 Penhall-Jones v State of New South Wales (No 2) [2006] FMCA 927 Re Morton, Ex parte v Mitchell Products Pty Ltd (1996) 21 ACSR 497 State of New South Wales (Department of Justice – Corrective Services) v Huntley [2017] FCA 581 Stevenson v Murdoch Community Services Inc [2010] FCA 648; (2010) 202 IR 266 |
| Applicant: | TROY ELLIS |
| First Respondent: | BURSWOOD NOMINEES LTD TRADING AS CROWN RESORT |
| Second Respondent: | STATE OF WESTERN AUSTRALIA |
| File Number: | PEG 449 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 12 April 2016 |
| Date of Last Submission: | 12 April 2016 |
| Delivered at: | Perth |
| Delivered on: | 10 July 2019 |
REPRESENTATION
| Applicant: | In person by telephone |
| Counsel for the First Respondent: | Ms M Power |
| Solicitors for the First Respondent: | King & Wood Mallesons |
| Second Respondent: | No appearance by leave of the Court |
ORDERS
That the First Respondent’s Application in a Case filed 4 March 2016 for summary dismissal of the proceedings be dismissed.
That the Applicant file and serve a Statement of Claim by 10 August 2019.
That the matter be adjourned to a directions hearing before a Judge of the Court at a time and a date to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 449 of 2015
| TROY ELLIS |
Applicant
And
| BURSWOOD NOMINEES LTD TRADING AS CROWN RESORT |
First Respondent
| STATE OF WESTERN AUSTRALIA |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an Application in a Case filed 4 March 2016 (“Application in a Case”) the first respondent, Burswood Nominees Ltd Trading As Crown Resort (“Burswood Nominees”) seeks summary dismissal of an application alleging unlawful discrimination filed by the applicant, Mr Troy Ellis (“Mr Ellis”) on 5 October 2015 (“Originating Application”). The second respondent, the State of Western Australia (“State”), entered no appearance on the Application in a Case and submits to any order made by the Court.
On 21 January 2015 Mr Ellis was a patron at Crown Resort, a casino and hotel (“Premises”) operated by Burswood Nominees. The alleged discrimination Mr Ellis seemingly complains of relates to:
a)the use of disability access toilets by a male patron whom Mr Ellis alleges did not have a disability (“Other Man”);
b)that when Mr Ellis approached the Other Man in the foyer of the Premises there was an altercation, in relation to which Mr Ellis complains that Burswood Nominees did not support Mr Ellis and instead took the side of the Other Man; and
c)Mr Ellis being escorted from the Premises by security staff, where officers of the Western Australian Police Service (“WA Police”) were in attendance to meet him. Mr Ellis complained about the incident to these officers, however they allegedly took no action and threatened to arrest Mr Ellis.
On 25 August 2015 the Australian Human Rights Commission (“AHRC”) gave Mr Ellis notice of the termination (“Notice of Termination”) of a complaint, on behalf of Mr Ellis and his elderly mother, that Mr Ellis had lodged with the AHRC regarding the incident at the Premises (“AHRC Complaint”). The termination of the AHRC Complaint was made pursuant to s.46PH(1)(c) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) as the AHRC found the AHRC Complaint was lacking in substance.
The AHRC Complaint alleges: “GENDER SPECIFIC ABUSE, DISABILITY DISCRIMINATION, SERIOUS ASSAULT & ELDER ABUSE”.
The Originating Application filed by Mr Ellis alleges discrimination under the Disability Discrimination Act 1992 (Cth) (“DD Act”) by Burswood Nominees and the State.
The Originating Application does not contain particulars of Mr Ellis’ claim. Burswood Nominees requested Mr Ellis to provide further particulars of his claim. Mr Ellis did not do so. Mr Ellis was under no obligation to provide further particulars. The Court also notes that orders for particulars are rarely granted in this Court: Olsen v Wellard Feeds Pty Ltd [2007] FMCA 1885 at [8] per Lucev FM.
Application in a Case
The Application in a Case seeks dismissal of the Originating Application pursuant to r.13.10(a) or (b) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”).
The Application in a Case was supported by an affidavit of Claude Marais affirmed 3 March 2016 (“Marais Affidavit”). Mr Marais affirmed that based upon the Originating Application he did not understand:
(a) what section or sections of the Disability Discrimination Act 1992 Mr Ellis alleges has or have been contravened by Crown Perth;
(b) what facts constitute the alleged discrimination or what the alleged discrimination is;
(c) which of the orders sought are sought against Crown Perth, and which are sought against the Second Respondent;
(d) how some of the orders sought, if made in respect of Crown Perth, could be enforced in respect of Crown Perth;
(e) the basis upon which Mr Ellis claims his stated loss.
(Marais Affidavit at [11]. The references to “Crown Perth” in the above extract from the Marais Affidavit ought to be understood to be references to Burswood Nominees).
Burswood Nominees’ submissions
Burswood Nominees made the following submissions in support of the Application in a Case:
a)balanced against the desire to provide an opportunity for an applicant to pursue proceedings based upon unlawful discrimination must be the need to ensure a respondent is not put to the trouble and expense of meeting allegations which have no reasonable prospect of success;
b)Mr Ellis has no reasonable prospect of successfully prosecuting the proceeding pursuant to s.23 of the DD Act as:
i)Mr Ellis was not refused access to Burswood Nominees’ premises on the ground of his disability or on any other ground;
ii)Mr Ellis was not refused use of any part of Burswood Nominees’ premises on the ground of his disability or on any other ground;
iii)no discriminatory terms or conditions were placed on the access by Mr Ellis to Burswood Nominees’ premises; and
iv)there were no discriminatory means by which Mr Ellis was required to access Burswood Nominees’ premises;
c)for the purposes of a claim of direct discrimination, the Court must ask whether another patron behaving in the same way as Mr Ellis would have been treated any differently and the answer to that question is unequivocally no, as Mr Ellis’ disability played no part in Burswood Nominees’ decision to remove him from the Premises;
d)Mr Ellis was required to leave Burswood Nominees’ premises in accordance with the statutory obligation of Burswood Nominees under s.115 of the Liquor Control Act 1988 (WA) (“Liquor Act”) to not permit a patron who is “drunk, violent, quarrelsome, disorderly or indecent” to remain on its licensed premises;
e)Mr Ellis acted in a violent and disorderly manner in physically pushing and seeking to strike the Other Man with his walking stick;
f)Mr Ellis’ claim, even at its highest, could not provide support for the view that he was treated unlawfully because of his disability, rather the evidence supports the conclusion that there was no causal relationship between his removal from Burswood Nominees’ premises and any contravention of s.23 of the DD Act;
g)there is no evidence that Mr Ellis’ conduct arose as a consequence of his disability and even if it did, the question is whether the standard applied is unreasonable, and a standard of behaviour which requires patrons not to assault other patrons with a walking stick is not unreasonable and entirely consistent with the standard provided for under s.115 of the Liquor Act;
h)Mr Ellis has no reasonable prospect of successfully prosecuting the proceeding pursuant to s.24 of the DD Act as:
i)Burswood Nominees has not refused to provide Mr Ellis with goods or services on the ground of his disability or any other ground;
ii)Burswood Nominees has not imposed discriminatory terms and conditions on the provision of goods or services or the availability of facilities; and
iii)Burswood Nominees has not provided goods and services or made facilities available to Mr Ellis in a discriminatory manner;
i)there is no statutory duty for Burswood Nominees to provide disabled toilet facilities for the exclusive use of disabled patrons, as long as in high use areas there are sufficient numbers of accessible facilities to give users with disabilities equivalent convenience of access;
j)the only way to ensure absolutely equal access would be to require that each and every toilet be accessible, but there is no legal requirement for this or for Burswood Nominees to have a regime of enforcement, for example, to challenge users of accessible toilets to establish the nature and extent of their disability, and the Court should take judicial notice that the imposition of such a duty would be onerous and likely to give rise to numerous claims of harassment and discrimination;
k)there is no corroborative or other evidence of any discriminatory remarks made by Burswood Nominees’ employees to Mr Ellis;
l)as a matter of substance, Burswood Nominees submits that there is no evidentiary or legal foundation for Mr Ellis’ claim of disability discrimination under the DD Act and that the Originating Application does not meet the statutory definition of the alleged discrimination; and
m)Mr Ellis brings these proceedings by his own admission after at least three previous interactions with Burswood Nominees or related bodies corporate in the past, and brings these proceedings as a species of protest jurisprudence.
At hearing Burswood Nominees made the following submissions in respect of CCTV footage of the incident involving Mr Ellis and the Other Man (which was Annexure CM-3 to the Marais Affidavit) (“CCTV Footage”):
a)the Court is asked to infer that Mr Ellis was quarrelsome, and on that basis Burswood Nominees had a statutory duty under the Liquor Act to actually remove him from the Premises, because it is an offence for the occupier not to remove a patron who is engaged in any of the conduct that is described by s.115(1)(a) of the Liquor Act;
b)Burswood Nominees has a zero tolerance policy to violent behaviour, such that a decision is made on the spot about who the aggressor is;
c)it is a question of whether the Court can infer from the evidence that the intention of Burswood Nominees in ejecting Mr Ellis was not on the basis of his disability but on the basis of his conduct, regardless of whether or not Mr Ellis says that he has some kind of justification for his conduct;
d)the statutory regime in respect of accessible toilets is for the provision of facilities that disabled people can use, that is accessibility as opposed to exclusivity;
e)the propositions put forward by Mr Ellis’ submissions do not address his Originating Application nor refute the grounds on which Burswood Nominees seek summary dismissal of the Originating Application, but appear to be scandalous and accusatory and the Court should consider them in that light; and
f)Mr Ellis has a history of dealing with Burswood Nominees and it does raise the question in Burswood Nominees’ view that this application is brought as a disability advocacy type of claim and it is not appropriate for a process like this to be used to simply feed that platform.
Mr Ellis’ submissions
Mr Ellis filed 18 pages of submissions. The content of Mr Ellis’ submissions was almost entirely unfounded accusations, irrelevant and personal assertions, and opinion, directed at the staff of Burswood Nominees and their legal representatives.
To the extent the Court can extract from Mr Ellis’ submissions some basis on which Mr Ellis seeks to resist summary dismissal of the Originating Application it notes the following submissions:
a)Burswood Nominees’ security staff had no problems with the “wife” of the Other Man involved in the altercation laughing when seeing Mr Ellis on the floor after being punched in the face, and the CCTV Footage shows her motioning toward Mr Ellis and moving her head in a comical fashion;
b)even if the CCTV Footage does show an image of Mr Ellis, it still does not answer the question of why he and his mother were thrown out after an issue of the theft of a disabled toilet, causing the disability discrimination by Burswood Nominees;
c)there is not one shred of information or evidence to suggest summary dismissal of the Originating Application is appropriate;
d)to state that the documents that Mr Ellis has written are imprecisely articulated is an affront to him as a disabled person;
e)the only person causing any expenditure of the public’s money are Burswood Nominees and in any event stating that he is wasting the Court’s time “is a very moronic and illogical sentence, as the courts and staff work every single day regardless of who or what cases are before them”;
f)the damages relate to Mr Ellis’ emotional harm and suffering in being put through all the extreme stress and torture of a court case, as a disabled person who is, or has been, discriminated against; and
g)Burswood Nominees have a duty of care as the venue is inaccessible if the toilets are being used by the “able bodied drunken morons”.
At hearing Mr Ellis was given an opportunity to make oral submissions. Most of the oral submissions were irrelevant, but those of some relevance were as follows:
a)under the Liquor Act “everyone” is thrown out if there is a violent, or an alleged violent, altercation, but only he was thrown out; and
b)the CCTV Footage does not show how the incident started in the passageway, and that Mr Ellis was aggravated by the Other Man, and that bystanders had also engaged in discriminatory conduct by calling him names.
CCTV Footage
As indicated above, Annexure CM-3 to the Marais Affidavit was the CCTV Footage of the night on which Mr Ellis alleges the disability discrimination occurred. It is not in issue that the man with the walking stick in the CCTV Footage is Mr Ellis. The CCTV Footage was played to the Court during the hearing. There was no sound to the CCTV Footage and the picture was not of a very high resolution. Relevantly, the CCTV Footage appears to show as follows:
a)that it was taken in the foyer outside of the Burswood Theatre, a part of the Premises operated by Burswood Nominees;
b)the Other Man, who is in a blue collared shirt, appears to be waiting for another person in the foyer, and after approximately one minute Mr Ellis, who has a walking stick, appears in the right hand corner of the picture and walks toward the Other Man and the pair come face to face. The body language between the pair appears hostile;
c)due to the angle of the camera it is unclear as to which individual makes initial contact, however, it appears Mr Ellis takes steps backward (but it is unclear if this was a forced or voluntary retreat), and then Mr Ellis raises his walking stick above his head;
d)the Other Man appears to say something to Mr Ellis, and Mr Ellis then either prods the Other Man with the walking stick, or motions to do so (again the Court cannot determine if contact was made), and the Other Man pushes the walking stick away and Mr Ellis appears to lose his balance;
e)the Other Man then makes his way toward a staff member who appears to use a radio, during which time Mr Ellis makes his way toward the Other Man;
f)Mr Ellis stops approximately half a metre from the Other Man, raises his walking stick in a manner similar to a baseball player raising his bat at plate to address the pitcher, and swings the walking stick toward the Other Man who deflects the walking stick and advances toward Mr Ellis, pushes him away, and thereafter Mr Ellis falls to the ground;
g)as Mr Ellis lay on the ground the Other Man retrieves Mr Ellis’ walking stick, hands it to another staff member, and appears to engage in a conversation with that staff member and the other staff member who radioed for assistance;
h)the Other Man walks with the staff member toward a woman who has entered the picture, and the woman appears to engage in an exchange of words with Mr Ellis, as does the Other Man again, and as a security guard arrives the woman and the Other Man exit the picture;
i)the security guard then talks to Mr Ellis as he remains seated on the floor, and six other security guards arrive, three of whom walk to the top right of the picture where it appears they are talking to the Other Man who has again entered the picture;
j)a piece of furniture is then bought to assist Mr Ellis to rise to his feet, and Mr Ellis’ mother then arrives in the picture, and upon it seemingly being indicated to Mr Ellis that he should take a seat, Mr Ellis again raises his walking stick in response to something that appears to occur out of the view of the CCTV Footage in the top right corner;
k)approximately 14 minutes into the footage the Other Man and the woman can be seen taking the escalator out of the picture as Mr Ellis continues to engage with the security personnel; and
l)the CCTV Footage then cuts to Mr Ellis engaging with the WA Police outside of the Foyer for a period of significant duration.
Mr Ellis, at his own request, appeared by telephone at the hearing. Prior to the CCTV Footage being screened Mr Ellis raised allegations that what was served on him by Burswood Nominees was not the same length as the CCTV Footage the Court had been provided, and what was going to be shown may not be what he had seen, and he felt that that was prejudicial to him. Burswood Nominees confirmed the CCTV Footage commenced from a view adjacent to the escalator in the foyer, and to the extent Mr Ellis was under the impression footage outside the disabled toilet was available, indicated that no such footage existed. The Court indicated that, if there were any issues with respect to the CCTV Footage, then Mr Ellis was free to make any further submissions to the Court. Mr Ellis did not subsequently request to make, or indeed make, any further submission to the Court.
When Burswood Nominees sought to play the CCTV Footage to the Court, having confirmed the CCTV Footage had been served on Mr Ellis, Mr Ellis accused Counsel for Burswood Nominees of lying. The Court indicated it was very clear from the papers before the Court that the material in the CCTV Footage relied upon by Burswood Nominees had been seen by Mr Ellis. Mr Ellis then objected to the admissibility of the CCTV Footage, arguing that it was inadmissible for the following reasons:
a)it paints a picture of Mr Ellis, a “disabled victim”, as a “predator”, so as to protect Burswood Nominees’ image from other allegations, and it is offensive to the disabled;
b)it is prejudicial to his case and it is an “evil and shocking lie”; and
c)the CCTV Footage does not show or address how the incident started in the first place, that being “people stealing disabled toilets” and threatening him first.
Evidence is not inadmissible merely because it “paints a bad picture” or “prejudices” a litigant, in a general sense. Mr Ellis led no evidence and made no relevant submission to support his assertion the CCTV Footage was “an evil and shocking lie”, nor as to how, or to what extent, he was prejudiced by the Court having regard to the CCTV Footage. The Court may refuse to admit evidence if it is unfairly prejudicial to a party: Evidence Act 1995 (Cth), s.135(a), but evidence is not unfairly prejudicial to a party merely because it tends to damage the case of the party or support the case of an opponent: Ainsworth v Burden [2005] NSWCA 174 at [99] per Hunt AJA. In these proceedings, the CCTV Footage is presently the best available objective evidence of what occurred in relation to the incident between Mr Ellis and the Other Man, at least to the extent that it shows what occurred in the foyer of the Premises (noting that it does not show what Mr Ellis alleges occurred in the toilet area).
The CCTV Footage is evidence directly relevant to the issues that Mr Ellis seeks to have the Court determine, and Mr Ellis’ objections to its admissibility are dismissed.
Once the CCTV Footage had been viewed at the hearing, Burswood Nominees sought to correct the following statements in its written submissions concerning the CCTV Footage, namely:
(a) Mr Ellis alighting from a descending escalator and appearing to approach another man (Man);
(b) Mr Ellis raising his walking stick in the air towards the Man, whose back was turned at the time;
Counsel for Burswood Nominees indicated that when reviewing the CCTV Footage on a larger screen it was evident that Mr Ellis had not alighted from a descending escalator or jabbed his walking stick toward the Other Man when his back was turned. Rather, Mr Ellis is seen walking beside an escalator and the Other Man was actually facing Mr Ellis when Mr Ellis raised his walking stick.
Mr Ellis objected to the Court accepting these corrections on the basis that it was “an affidavit…too bad…can’t be changed” and that he is “not here for incompetent lawyers”. The Court notes that:
a)a legal practitioner has both a duty as an officer of the Court and an ethical obligation to correct the record if it appears that the record is incorrect, and any suggestion by Mr Ellis of incompetence is unfounded, as Counsel for Burswood Nominees was acting in accordance with her duties and obligations in seeking to correct Burswood Nominees’ submissions;
b)that the corrections sought to be made by Burswood Nominees were in written submissions, not in any affidavit material, and the amendments to them were entirely consistent with the abovementioned duties and obligations owed to the Court; and
c)in any event, it is ultimately for the Court, as the finder of fact, to determine the facts on the basis of the admissible evidence.
To the extent Mr Ellis objected to Burswood Nominees correcting its submissions, those objections are dismissed.
Summary dismissal principles
Principles
Burswood Nominees seeks summary dismissal of the Originating Application pursuant to r.13.10(a) and (b) of the FCC Rules which read as follows:
The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious
In Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233 (“Spencer”) at [58]-[60] per Hayne, Crennan, Kiefel and Bell JJ it was observed that:
a)no paraphrase of the expression “no reasonable prospect” can be adopted as a sufficient explanation of its operation, let alone definition of its content: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
b)the expression cannot usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it can be said that there is “no reasonable prospect”: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
c)the creation of a lexicon of words or phrases intended to capture the operation of the phrase is to be avoided: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
d)where a plaintiff has no reasonable prospect of prosecuting a proceeding the proceeding could be described as “frivolous”, “untenable”, “groundless” or “faulty”, but these expressions, either alone or in combination, should not be understood as providing a sufficient chart of the metes and bounds of the relevant power, nor can reasonableness be sufficiently or completely illuminated by contrast with a claim which would be frivolous, untenable, groundless or faulty: Spencer at [59] per Hayne, Crennan, Kiefel and Bell JJ;
e)the power may only be exercised if a court is satisfied that the application has no reasonable prospect of success: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ;
f)the power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ; and
g)full weight must be given to the expression (“no reasonable prospect”) as a whole, and it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different procedural regimes: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ.
The Federal Court has made observations in respect of the phrase “no reasonable prospect” as it relates to summary dismissal, as follows:
a)a court must be satisfied that there is no reasonable prospect of success;
b)evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects, and in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, a court should be more reluctant to dismiss a proceeding on the face of a pleading;
c)it was not Parliament’s intention to require a court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
d)if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said, where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds, that there is “no reasonable prospect of success”;
e)in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party;
f)a summary dismissal proceeding ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
g)the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of the summary dismissal power; and
h)what is required is a prediction of the outcome of a trial on the merits but not an actual adjudication of those merits such that a court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed.
See George v Fletcher (Trustee) [2010] FCAFC 53 at [75] per Ryan and Logan JJ; White Industries Aust Ltd & Anor v Federal Commissioner of Taxation & Anor [2007] FCA 511; (2007) 160 FCR 298; (2007) 66 ATR 306; (2007) 240 ALR 792; (2007) 95 ALD 30 at [50]-[54] per Lindgren J; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; (2008) 167 FCR 372; (2008) 246 ALR 465; (2008) 103 ALD 505; [2008] ATPR 42-231 at [45] per Rares J; Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15] per Heerey J; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] per Gilmour J.
The Court also observes that:
a)Burswood Nominees, in making the summary dismissal application, bears the onus of persuading the Court to make an order for summary dismissal: Australian Securities & Investments Commission v Cassimatis & Anor [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 at [46] per Reeves J;
b)an application for summary dismissal does not involve “mere pleading points” but is concerned with substance, and the Court should consider matters outside the pleadings: Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192 (“Qualify Me”) at [24] per Markovic J; Singh v Owners Strata Plan No 11723(No 3) [2012] FCA 1121; (2012) 207 FCR 390 (“Singh (No 3)”) at [39] per Griffiths J;
c)where an applicant fails to identify any valid claim at all in the materials placed before the Court a conclusion may be justified that there is not, and never will be, a valid claim to advance to the Court. In Dowling v Commonwealth Bank of Australia [2008] FCA 59 (“Dowling”) at [30] per Reeves J the Federal Court said:
However, where the applicant has failed to identify any valid claim in the materials he or she has placed before the court and has failed to provide any factual material that could amount to a valid claim and the court concludes that the party has no reasonable prospects of ever being able to do so, the situation is fundamentally different. The complete absence of an identified and valid claim and, more importantly, the factual materials to found either that valid claim, or some other form of valid claim, along with the likelihood that the applicant has no reasonable prospects of ever being able to produce that material, justifies a conclusion that there is not, and never will be, a valid claim before the court. This obviously cannot be remedied by orders to amend or strike out the pleadings because no amount of pleadings will remedy the fundamental absence of a valid claim. Moreover, the complete absence of a valid claim in this sense ie no identification of a claim, no factual foundation for a claim and no prospect of providing either, must lead inexorably to the conclusion that the applicant has no prospects of prosecuting his or her proceedings to a successful conclusion … ,
and see also Ghanem v Australian Research Council [2014] FCAFC 132 at [19] per Flick, Jagot and Perry JJ; and
d)the Court must be cautious in summarily dismissing an application involving a litigant in person, and ought to act so as to diminish any disadvantage that a litigant in person suffers when faced with a lawyer in the adversarial process, but do so in a manner which does not confer upon the litigant in person an advantage over their represented opponent: Re Morton, Ex parte v Mitchell Products Pty Ltd (1996) 21 ACSR 497 at 513-514 per Sackville J.
The Court notes that:
a)in Walker v State of Victoria [2012] FCAFC 38 (“Walker”) at [26] per Gray J the Federal Court said, of a disability discrimination claim, that:
There is no attempt to plead as material facts specific acts or omissions of the respondent. As a consequence, the respondent has not been called upon to plead to such allegations, so as to make it clear what is and is not in dispute. For the most part, there is a failure to particularise matters such as dates and the identification of the particular persons responsible. Specific alleged acts or omissions are not related directly to the provisions of the Disability Discrimination Act on which the appellant relies. There are no indications of the persons, or classes of persons, who might be regarded as proper comparators for the purposes of determining whether there has been discrimination by less favourable treatment, or of determining who is able to comply with a particular requirement or condition in respect of which it is alleged that the appellant cannot comply. In short, the amended statement of claim is a litany of complaints, rather than a series of allegations of unlawful discrimination under the Disability Discrimination Act.
b)it is important even where a litigant in person is involved, that the matters required to be established in a disability discrimination claim are, ultimately, comprehensively pleaded in something akin to the proper form. In Modra v Victoria [2012] FCA 240; (2012) 205 FCR 445; (2012) 291 ALR 429 (“Modra”) at [32] per Gray J the Federal Court considered a case in which there were deficient pleadings, and stated:
32… A pleading lacking in precision places upon the judge an extra burden of attempting to ascertain whether there are issues on which the party can rely lawfully. There is a risk that, without the assistance of precise pleadings, the judge will fall into error in that respect. An imprecise pleading adds to the expense of a proceeding. The opposing party will have a great deal more work to do than would normally be the case, in determining whether to gather evidence to meet all that is said in the deficient pleading. The trial is likely to be longer than if the claim were pleaded properly. Thus, a failure to plead a claim correctly will impact not only on justice, but also on timeliness, efficiency and expense…
Consideration
The Originating Application provides as follows:
a)that the final orders Mr Ellis sought are that:
-THE PREDATOR + HIS WIFE WHO ASSAULTED ME TO BE CHASED DOWN BY CROWN + CHARGED
-ALL SECURITY STAFF AT CROWN INVOLVED WITH THE DISABLED HAVE CAUSE TO BE SACKED + STRIPPED OF SECURITY LICENCE FOR LIFE.
-A WRITTEN APOLOGY FROM CROWN.
-DISCRIMINATION + ACCESS 1000 FOLD
-$25 MILLION COMPENSATION FOR DESTRUCTION OF MY PHYSICAL + EMOTIONAL HEALTH--THIS HAS DESTROYED MY DIGNITY, HEALTH, HUMAN RIGHTS, DISABLED/ACCESS.
-THE PREDATORS ALL IDENTIFIED + REPORTED TO WA POLICE.
-WA POLICE CAN DO THE SAME + PAY ME $5 MILLION FOR 11 YEARS OF HELL;
-WA POLICE TO CHARGE ALL INVOLVED IN THIS DISABLED HATE CRIME AND ASSAULT.
b)in response to a question asking what discrimination is being complained of, Mr Ellis has said “disability discrimination”, and nominated the DD Act as the legislation under which the alleged discrimination complained of is unlawful; and
c)in relation to a question asking that “all sections of the Act relevant to this claim” be stated, Mr Ellis has cited “46PH(2)” as the relevant section.
Despite the obvious shortcomings in the Originating Application the Court notes that the Originating Application Mr Ellis filed was on the appropriate form (“Form”) required to be filed under r.41.02A of the FCC Rules. The equivalent Form for the making of human rights applications in the Federal Court has been said to be one that is unlikely to have utility in defining or resolving the controversy raised, and has been held not to be an originating process, a pleading, or particulars of a pleading: Reynolds v JP Morgan Administrative Services Australia Ltd & Anor (No 2) [2011] FCA 489; (2011) 193 FCR 507; (2011) 280 ALR 612 (“Reynolds (No 2)”) at [17] and [24] per Rares J, referred to in Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120 (“Ejueyitsi”) at [6] per Lucev FM.
Part B of the Form is headed “Grounds of Application” and commences by asking:
3. What discrimination are you complaining of?
which is then followed by a note in the following terms:
The unlawful discrimination must:
(a)be the same or substantially the same as the discrimination that was the subject of the complaint terminated by the Australian Human Rights Commission, or
(b)arise out of the same or substantially the same acts, omissions or practices that were the subject of complaint.
The terms of the note to Item 3 of Part B of the Form reflect s.46PO(3) of the AHRC Act. In response to this question and note, Mr Ellis has written “Disability discrimination”.
No further detail or particularisation of the alleged disability discrimination is set out, save that in response to Item 4 of Part B of the Form which asks:
Under what Act is the discrimination you are complaining of unlawful?
Mr Ellis has selected the box for the “Disability Discrimination Act 1992 (Cth)” and in relation to Item 5 of Part B of the Form which requires the applicant to state all sections of the Act that are relevant to the claim, he has written “46PH(2)”. The Court observes that there is no s.46PH(2) in the DD Act, but that s.46PH(2) of the AHRC Act provides that the President of the Australian Human Rights Commission (“AHRC”) must notify complainants in writing of a decision, and the reasons for that decision, if the President decides to terminate a complaint to the AHRC.
Part C of the Form deals with the applicant’s personal details. Item 13 of Part D of the Form seeks to establish the relationship between the applicant and the respondent, in relation to which Mr Ellis has indicated that he is a “Customer of” Burswood Nominees. Part E of the Form seeks details of any extension of time which is sought. No extension of time is sought here.
Part F of the Form deals with required documents and provides that a copy of the AHRC Complaint “(if available)” and the Notice of Termination must accompany the Form.
The Form does not necessarily require an applicant to set out their claim of discrimination in a manner which discloses its substance in any detail. Part B – Grounds of Application does not require that an applicant set out the grounds of the application, as none of the questions under Part B – Grounds of Application in the Form require an applicant to set out their points of claim, or to set out the facts alleged. Rather, an applicant, taking the questions asked under Part B – Grounds of Application literally, can simply state the type of discrimination being complained about (for example, disability, in this case), tick the relevant box in relation to the relevant Act, and state the sections of that Act relevant to the claim. There is no provision which directs or requires an applicant to set out their points of claim or the alleged facts of their claim. The fact that there is no detail, that is no points of claim, no material facts set out, or no particularisation of the alleged claim of disability discrimination, arises because of the nature of the Form, and is not the fault of Mr Ellis. The need to specify, at the very least, the material facts relied upon to constitute the alleged unlawful disability discrimination might be obvious to a lawyer, but it would not necessarily be obvious to a litigant in person such as Mr Ellis. Even where the Form may be said to have been satisfactorily completed by answering the relevant questions, there will still be a necessity for proper pleadings to be ordered that are to include the identification of the relevant disability, its extent and its relationship to the alleged discrimination: Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 101 ALD 459; [2008] EOC 93-493 (“Gama”) at [90]-[91] per French and Jacobson JJ; Shurat HaDin, Israel Law Center v Lynch (No 2) [2014] FCA 413 (“Shurat HaDin”) at [35]-[36] per Robertson J.
Section 46PR of the AHRC Act provides as follows:
In proceedings under this Division, the Federal Court and the Federal Circuit Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.
The capacity to act informally and without regard to legal technicalities is not, however, the provision of a licence to disregard legal principles: Zoological Board of Victoria & Ors v Australian Liquor, Hospitality and Miscellaneous Workers Union (1993) 49 IR 41; (1993) 3 CAR 299, IR at 48 per Moore VP; Ejueyitsi at [7] per Lucev FM, nor to disregard the usual principles with respect to proper pleading: Maiocchi v Royal Australian & New Zealand College of Psychiatrists [2014] FCA 301 at [7]-[8] per Robertson J; and does not displace the requirement that the Court must exercise its powers judicially: Walker at [81] per Gray J; Ejueyitsi at [7] per Lucev FM. More specifically (and albeit in the context of a claim under the Racial Discrimination Act 1975 (Cth)) the Federal Court observed in Shurat HaDin at [33]-[37] per Robertson J as follows:
33 In my opinion, Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26 at [43] is recent authority for the proposition that in order to make out a case the applicants have to show that the respondent’s act was, or acts were, unlawful because they fell within the sections of the Racial Discrimination Act which the applicants invoked.
34 In the case of s 9, for example, the applicants need to show:
(a) the act or acts the respondent allegedly did;
(b) that each act involved a distinction, exclusion, restriction or preference, based on race, colour, descent or national or ethnic origin; and
(c) that each act had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of a right of theirs, that right being a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
In relation to s 9, it is the first of these matters which is presently under consideration.
35 I do not regard the conclusions in the cases relied on by the applicants as having the consequence that this Court should not require pleadings that adequately state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial. After all, the point of Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245 is that the Commission is not a court, let alone a court with adversarial proceedings, so one would not expect the need for precision to be as great in that forum as it is in the Court. I would also note, as a general observation, that some of the prolongation and complexity of some human rights litigation may be seen to stem from an inadequate identification of the primary facts in the first place.
36 I reject the submission on behalf of the applicants that it is sufficient to establish: a terminated complaint; an affected person; and an allegation of unlawful discrimination, being the matters referred to in s 46PO of the Australian Human Rights Commission Act. I also reject the submission, founded on Hinchliffe v University of Sydney (2004) 186 FLR 376; [2004] FMCA 85 at [94], with reference to the practice in what is now the Federal Circuit Court of Australia, that there is a principle that pleadings in a formal sense should not be required in proceedings under the Australian Human Rights Commission Act.
37 The applicants accepted, in the course of argument, that they had to show an unlawfulness under the Racial Discrimination Act in order to succeed under the cause of action under s 46PO of the Australian Human Rights Commission Act but, while maintaining that the pleadings actually did do this, submitted they did not necessarily have to plead out every element. The applicants maintained that the cause of action was not under the Racial Discrimination Act, and so the Statement of Claim could not be struck out for lack of a cause of action because of any failings in the pleadings in relation to the Racial Discrimination Act. As will become apparent, I do not accept this submission.
If Hinchliffe v University of Sydney [2004] FMCA 85; (2004) 186 FLR 376 (“Hinchliffe”) at [94] per Driver FM was ever good law (which the Court as presently constituted doubts in any event) it is no longer good law: Shurat HaDin at [36] per Robertson J (and see also Walker at [26] per Gray J and Modra at [32] per Gray J), and the relevant Federal Court authorities contrary to Hinchliffe are, in any event, otherwise binding on this Court: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ.
In these proceedings no order was made for the filing of a Statement of Claim because Burswood Nominees made the Application in a Case. The Originating Application does not require an applicant in human rights proceedings in this Court to set out a statement of their claims, and because there has been no statement of claim ordered to be filed in these proceedings, Mr Ellis has not had to set out the factual and legal basis for his claim of disability discrimination in these proceedings, and save for what he has to say in his submissions in response to Burswood Nominees’ Application in a Case, Mr Ellis has not had to put before the Court any material from which his claims and the factual and legal matrix supporting them might be discerned. It follows that the Originating Application ought not be summarily dismissed in circumstances where:
a)it is not a pleading;
b)there is no requirement by reason of the Form for Mr Ellis to set out the particulars of his claim of disability discrimination;
c)in the ordinary course of events in this Court, the Court would make an order for the filing of a Statement of Claim by Mr Ellis, but that did not occur in this case by reason of Burswood Nominees’ Application in a Case;
d)although Burswood Nominees requested particulars of the claim from Mr Ellis: see [6] above, in the absence of a Court order Mr Ellis was not obliged to provide particulars, and as a litigant in person may not have realised the importance of doing so, even in the face of a foreshadowed application for summary dismissal; and
e)to the extent that Mr Ellis appears to point to the AHRC Complaint as evidencing the conduct said to constitute the disability discrimination, the AHRC Complaint generally forms no part of the proceeding in this Court at all, and is neither a form of originating process, pleading nor particulars of a pleading, and its purpose in human rights proceedings is to act as a pre-condition to, and a constraint upon, the Court’s jurisdiction under the AHRC Act, and as such its function within the records of the Court is a limited one: Reynolds (No 2) at [21] and [23]-[24] per Rares J; Oldham v Capgemini Australia Pty Ltd & Anor [2015] FCA 1149; (2015) 241 FCR 397 at [28] per Mortimer J; Oldham v Capgemini Australia Pty Ltd & Anor (No 2) [2016] FCA 1101 at [14] and [27]-[28] per Mortimer J.
If it were plain that “no amount of pleadings will remedy the fundamental absence of a valid claim” it might be appropriate to dismiss an Originating Application at this point in proceedings, prior to there being any pleadings: Dowling at [30] per Reeves J, but that would likely be a rare case. For the reasons set out below, this is not a case in which there might never be a valid claim, if it were to be properly pleaded, that is, on the materials presently before the Court, there is not a complete absence of a possibly valid claim, and the elements of a possibly arguable disability discrimination case are discernible: Dowling at [30] per Reeves J; Qualify Me at [24] per Markovic J; Singh (No 3) at [39] per Griffiths J.
In the Originating Application Mr Ellis has failed to plead any provision of the DD Act which he seeks to rely upon, although it can be inferred that Mr Ellis is seeking to assert Burswood Nominees were in breach of ss.23 and 24 of the DD Act, those provisions referring to access to premises, and provision of goods, services and the making available of facilities respectively.
Mr Ellis appears to complain of:
a)his inability to access a disabled toilet at the Premises due to the Other Man using the disabled toilet (and that being the catalyst for the altercation); and
b)the circumstances thereafter which led to his being removed from the Premises following the altercation.
For Mr Ellis to succeed on the Originating Application, the following must ultimately be set out with a sufficient degree of specificity so that Burswood Nominees knows the case which it is required to meet:
a)precise identification of Mr Ellis’ alleged disability or disabilities and the extent of Mr Ellis’ disability or disabilities and the incapacities that arise therefrom: Gama at [91] per French and Jacobson JJ; Stevenson v Murdoch Community Services Inc [2010] FCA 648; (2010) 202 IR 266 at [87] per Gordon J, which ought no doubt be sought to be proved by expert evidence from specialist medical practitioners and allied health professionals at hearing;
b)the conduct said to have been committed by Burswood Nominees that constitutes discrimination, and specifically what it is alleged Burswood Nominees has done, when it was done, where it was done, and how each of those factual matters complained about is said to constitute discrimination based upon the alleged disability;
c)whether it is alleged that any alleged discrimination under ss.23 and 24 of the DD Act is direct or indirect: DD Act, ss.5 and 6;
d)for the purposes of discrimination under s.5 of the DD Act:
i)the circumstances in which it is said that Mr Ellis has received less favourable treatment; and
ii)details of the relevant comparators; and
e)for the purposes of discrimination under s.6 of the DD Act, the facts which are said to constitute a requirement or condition applicable to Mr Ellis, which are alleged to not be reasonable,
see Myatt v State of Queensland (Queensland Police Service) [2016] FCA 133 at [65] per Rangiah J; Purvis v State of New South Wales (Department of Education and Training) & Anor [2003] HCA 62; (2003) 217 CLR 92; (2003) 78 ALJR 1; (2003) 202 ALR 133; (2003) 77 ALD 570.
Access to disabled toilets
Mr Ellis appears to submit that the altercation with the Other Man occurred as a result of the Other Man using the disabled toilet facility despite not having a disability. Part of the conduct said to constitute the disability discrimination is discernible as the alleged inability to access the disability access toilets within the relevant area at the Crown Resort, albeit the particulars of how that conduct was manifested at the time the alleged disability discrimination is said to have occurred is not readily discernible, and certainly not sufficiently articulated or properly particularised.
There is nothing in the DD Act specifically requiring that disabled accessible toilets are reserved for the exclusive use of those afflicted by a disability. To the extent the Disability (Access to Premises - Buildings) Standards 2010 (Cth) (“Disability Standards”) make provision for sanitary facilities accessible to disabled persons, these are restricted to regulating the quantum or ratio of facilities required and the specifications those facilities must meet.
The fact that neither the DD Act nor the Disability Standards deal with exclusivity of access for disabled persons to disabled access facilities is not however determinative of whether discrimination arises because of the inability of a disabled person to access a disability access facility, here a toilet. Whether or not there is discrimination must depend on a consideration of all the relevant circumstances. In appropriate circumstances, there may be nothing to prevent a disabled person who is unable to access a disability access toilet when that toilet is being used, continually, exclusively, or to the exclusion of disabled persons, by abled bodied persons, from alleging that they are being discriminated against on the basis of their disability, particularly if no steps are taken by the owner, operator, occupier or controller of the premises, to facilitate disabled persons using toilets designed for, and intended to be accessed and used by disabled persons. In the circumstances of this case, and by reason of there being no Statement of Claim having been required to be filed, the relevant facts in relation to the question of access to the disability access toilet or toilets at the Premises are not before the Court, and for reasons set out above, are not required to be before the Court at this stage. It may be that there is a valid claim able to be made by Mr Ellis, and a real question as to whether there was equivalent convenience of access at the time to which the claim relates, and the possibility that Mr Ellis has a valid claim should not be dismissed at this stage of the proceedings where he has not properly had an opportunity to set out the factual circumstances in relation to his claim. Insofar as Burswood Nominees asserts that there might be real hardship in monitoring access to disability access toilets, that is an evidentiary matter about which there is no evidence before the Court, and the Court is in no position to draw conclusions with respect to that issue at this stage.
Removal from the Premises
Burswood Nominees justified Mr Ellis’ removal from the Premises on the basis of s.115 of the Liquor Act which provides as follows:
(1) Where a licensee, whether personally or by an employee or agent—
(a) permits—
(ii) violent, quarrelsome, disorderly or indecent behaviour,
to take place on the licensed premises that licensee, and the employee or agent concerned, commits an offence…
(4) If subsection (4a) applies to a person—
(a) an authorised person may refuse the person entry to the licensed premises or a part of the premises; or
(b) an authorised person may require the person to leave the licensed premises or a part of the premises…
(4a) This subsection applies to a person who—
(b) is behaving in an offensive manner;…
(d) is a person who the authorised person has reasonable cause to believe—…
(ii) is or is known to be quarrelsome or disorderly; or
The High Court has said that the use of the phrase “violent, quarrelsome or disorderly conduct” in the context of liquor laws refers to anti-social conduct which liquor laws seek to minimise: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420; (2009) 84 ALJR 19; (2009) 260 ALR 628; [2009] Aust Torts Reports 82-042 at [25] per French CJ, Gummow, Hayne, Heydon and Crennan JJ.
The Court notes that there is no evidence that the Premises, or at least that part of the Premises from which Mr Ellis was removed, is “licensed premises”, or that Burswood Nominees is the “licensee”, or that Mr Ellis was removed by “an authorised person”. Whether or not a failure of proof on any of those matters might have consequences in relation to the claim of disability discrimination by Mr Ellis may be a matter for further evidence or argument. Insofar as the Incident File Summary Report attached to the Marais Affidavit indicates that Mr Ellis was removed from the Premises, or, as it is put “asked to leave the theatre”, as he was “the aggressor” or the “main offender”, the Court notes that both Mr Ellis and the Other Man “engaged in an altercation” with the “male with the walking stick [Mr Ellis] using it as a weapon”. Plainly there is a disputed issue of fact which might arise in relation to those circumstances as to whether both Mr Ellis and the Other Man were “violent, quarrelsome, disorderly”: Liquor Act, s.115(1)(a), and if the Other Man’s conduct fits within one of those descriptors, and he was not removed, whether that may give rise to an issue as to whether the statutory requirement to remove persons engaged in such conduct was exercised in a discriminatory manner because of Mr Ellis’ disability. The Court notes that s.115(1) of the Liquor Act makes no distinction, as Burswood Nominees appears to have done, between an “aggressor” or a “main offender”.
Burswood Nominees alleges that Mr Ellis was asked to leave the Premises as he had engaged in disorderly behaviour, and that there was no consideration of his disability when coming to the decision to ask him to leave the Premises. In the absence of sound on the CCTV Footage the Court cannot determine what is being said to Mr Ellis by the security guards that attended the situation, and if there was any indication that Mr Ellis had at any time alerted the security guards to his disability, although, by reason of Mr Ellis’ use of a walking stick, it might be inferred that the existence of some kind of disability might have been obvious. There is also a lack of evidence as to what was said to Mr Ellis by the Other Man with whom he had had the altercation, and the Other Man’s “wife” such as, on Mr Ellis’ version of events, to incite Mr Ellis’ actions.
The CCTV Footage appears to show Mr Ellis acting in a manner that was, at least, disorderly, and, if that be the sole basis for Mr Ellis’ removal then there may be no causal link between the removal of Mr Ellis from the Premises and any disability he may have.
Mr Ellis has however alleged in his submission that a security officer of Burswood Nominees made a comment to the effect that Mr Ellis was “pathetic to worry about the disabled toilet”. That submission is sufficient to raise the possibility that there may be more to what occurred than can be seen on the CCTV Footage (and see some of the matters adverted to at [46] and [49] above), and that a Statement of Claim properly pleaded, and evidence properly obtained and led, might indicate that Mr Ellis’ disorderly conduct was not, or not the only, reason for Mr Ellis’ removal from the Premises, and that there may be a basis on which a case can proceed, given that s.10 of the DD Act provides that if an act is done for two or more reasons and one of the reasons is the disability of a person, whether or the dominant or substantial reason for the doing of the act, then, for the purposes of the DD Act, the act is taken to be done by reason of the person’s disability.
In all of the above circumstances, this is once again, a situation where by reason of the fact that Mr Ellis has not been required to file a Statement of Claim, and therefore has not had an opportunity to properly put his version of the facts of this matter before the Court, he ought not be denied that opportunity. The circumstances of this case are not such that the Court can say that were Mr Ellis given the opportunity to file a Statement of Claim, and ultimately affidavits, there would not be a case with a reasonable prospect of success, and, therefore, a valid claim in the sense referred to in Dowling at [30] per Reeves J.
Prior history
There is reference in the Marais Affidavit, and in Burswood Nominees’ submissions, to prior incidents between Burswood Nominees and Mr Ellis. The Court has taken no account of these as they are cast in such vague terms as to not lend themselves to any proper analysis, and in any event, are probably irrelevant to these proceedings.
Relief sought
The orders this Court can make in respect of a claim under s.46PO(4) of the AHRC Act are limited. Section 46PO(4) of the AHRC Act provides as follows:
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c) an order requiring a respondent to employ or re-employ an applicant;
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.
It is necessary to make some observations with respect to the orders sought by Mr Ellis, and whether they enjoy any reasonable prospect of success, and in particular those orders which, in essence, seek to have this Court order the WA Police to charge the Other Man and his “wife” with assault, and to make an order that Burswood Nominees’ security personnel be dismissed from employment and stripped of their security licences. The relevant orders sought are set out at [28] above. The Court has set out below why it cannot make such orders.
The first Order sought by Mr Ellis contains an allegation that he was assaulted, and that the “Predator and his wife who assaulted me” be “chased down by Crown and charged”. Assault is an offence under s.222 of the Criminal Code 1913 (WA).
The Criminal Procedure Act 2004 (WA) (“CP Act”) in s.3 provides the following relevant definitions:
charge means an allegation in a prosecution notice or indictment that a person has committed an offence;
prosecution means proceedings in a court that allege a person has committed an offence and that are taken for the purpose of having the person tried for the offence;
Sections 20-24 of the CP Act outline who can commence a prosecution against an alleged perpetrator. Section 20 of CP Act states:
(1) In this section, unless the contrary intention appears —
authorised person in relation to an offence, means —
(a) if under another written law a person or class of person is authorised to commence a prosecution for the offence, that person or a person of that class; or
(b) in any other case, a person —
(i) who is a public authority or an employee of a public authority; or
(ii) who is authorised in writing by a public authority to commence a prosecution for the offence.
(2) If another written law limits who may commence a prosecution for an offence, a prosecution for the offence may only be commenced in accordance with that law.
(3) Subject to subsection (2), a prosecution for an offence may be commenced by, and only by —
(a) one of the following acting in the course of his or her duties —
(i) an authorised person in relation to the offence;
(ii) a person referred to in section 80(2)(a) to (e);
(iii) a police officer;
or
(b) a person who, acting in accordance with the terms of an appointment made under section 182, may prosecute the offence.
(4) This section does not affect the operation of an enactment that requires a person’s consent, approval or authority to be given for the commencement of a prosecution for an offence.
(5) A person acting in his or her private capacity cannot commence a prosecution, unless another written law expressly provides otherwise.
(6) This section does not limit the functions of the DPP under the Director of Public Prosecutions Act 1991.
Section 80 of CP Act states:
(1) …
authorised officer means a person listed in subsection (2);
(2) For the purposes of this Part each of the following is an authorised officer —
(a) the Attorney General;
(b) the Solicitor-General;
(c) the State Solicitor;
(d) the DPP;
(e) a member of the DPP’s staff appointed in writing by the DPP as an authorised officer;
(f) a person appointed under section 182 to prosecute indictable offences who is acting in accordance with the terms of the appointment.
Section 182 of CP Act relates to the appointment by the Governor of a person not otherwise authorised under the CP Act to prosecute offences.
Since the enactment of the CP Act a criminal prosecution can only be brought in accordance with the provisions authorising certain persons (as set out above) to commence prosecutions: this Court is not one of those persons, and hence cannot make the “prosecution” orders sought by Mr Ellis: Bhalsod v Perrie [2018] WASCA 108; (2018) 84 MVR 469 at [91]-[94] per Buss P (Mazza JA agreeing at [176]; Beech JA agreeing at [177]); Police Force Regulations 1979 (WA), rr.301 and 401; Director of Public Prosecutions Act 1991 (WA), ss.10 and 11.
In relation to the licences of security staff, private security activities within Western Australia are governed by the Security and Related Activities (Control) Act 1996 (WA) (“Security Act”) and the Security and Related Activities (Control) Regulations 1997 (WA). Pursuant to the Security Act the definitions of “Commissioner” and “court” are contained in s.3 of the Security Act and are as follows:
Commissioner means the person for the time being holding or acting in the office of Commissioner of Police under the Police Act 1892;
court includes a court (however described) of a foreign jurisdiction;
Sections 67, 67A and 69 of the Security Act relate to the disciplinary proceedings for persons holding a security licence. Section 67 of the Security Act gives the Commissioner authority to allege to the State Administrative Tribunal that there is proper cause to revoke a licence in certain circumstances. Section 67A of the Security Act gives the Commissioner summary power to revoke and suspend licences in certain circumstances. Section 69 of the Security Act gives a “court” the power to revoke a licence. Section 69 of the Security Act states:
(1) Where a finding of guilt has been made by a court in respect of an offence against this Act, or any other Act, committed by a licensee the court may, in addition to any penalty imposed or order made in respect of the matter —
(a) revoke the licence and order that it be delivered up to the court together with the identity card issued to the licensee; or
(aa) suspend the operation of the licence for any period specified in the order; or
(b) cancel an endorsement on the licence under section 24 or 26, and order that the licence be delivered up to the court for amendment; or
(c) attach any condition or restriction to the licence or to an endorsement for any period specified in the order.
(1a) Subsection (1) does not apply in relation to a disqualifying offence.
(2)When making any order under this section the court may, if it thinks fit, defer the operation of the order pending an appeal.
(3)When making an order under subsection (1)(a) the court may, if it thinks fit, order that the licensee be disqualified from holding —
a licence, or a licence of a particular type or class; or
a licence, or a licence of a particular type or class, that is endorsed under section 24 or 26,
for a particular period not exceeding 3 years.
It does therefore appear that this Court, which is a “court” as defined in s.3 of the Security Act, would have the power to revoke the licence of security staff employed by Burswood Nominees, or otherwise employed at the Crown Resort, but only where there had been a prior finding of guilt in respect of an offence against the Security Act, or any other Act, committed by the holder of the security licence. At this stage, there is no evidence that any person who might have been involved in the incident in relation to Mr Ellis has such a finding against them, and, accordingly, at this stage, there would be no valid basis on which to make an order revoking the licence of any security staff employed at Burswood Nominees, or otherwise employed at the Crown Resort. The present proceedings, being civil, cannot give rise to a finding of “guilt … in respect of an offence”, either under the DD Act or any other Act. Thus, these proceedings, cannot of themselves enliven the power under s.69(1) of the Security Act to revoke or suspend a security licence.
Insofar as the Court might make an order with respect to security licences if the appropriate circumstances existed, and in relation to the orders sought for the termination of employment of any security staff employed by Burswood Nominees (if that be the case), it would also be necessary for Mr Ellis to address under what head of s.46PO(4) of the AHRC Act the Court might make such an order, the only obvious candidate being s.46PO(4)(b) of the AHRC Act. That would require Mr Ellis to demonstrate how it is that it is a reasonable act for this Court to order the termination of an employee, and how that would “redress” any loss or damage that Mr Ellis had suffered.
With respect to the apology sought by Mr Ellis, that is an order and remedy the Court can provide in circumstances where the alleged discrimination has been established: AHRC Act, ss.46PO(4)(b) and (d); Campbell v Kirstenfeldt [2008] FMCA 1356 (“Kirstenfeldt”), but usually only in circumstances where the party ordered to apologise is genuinely sorry for its actions: Kirstenfeldt at [40] per Lucev FM.
Although damages under s.46PO(4)(d) of the AHRC Act are ultimately a matter for the Court, there is nothing by way of particulars to justify what is plainly a claim for a sum in damages which far exceeds anything ever awarded in relation to a successful claim under the DD Act. As the Federal Magistrates Court noted in Penhall-Jones v State of New South Wales (No 2) [2006] FMCA 927 at [115] per Driver FM:
Unfortunately, the extravagant formulation and presentation of claims is a relatively common feature in proceedings involving self-represented litigants …. The court must look beyond that. Beneath the hyperbole, the hubris and the extravagant (and at times embarrassing) language indulged in by [the applicant] in the presentation of her case there is an arguable claim of victimisation that must be considered.
In respect of damages, the following awards in respect of disability discrimination have previously been awarded by this Court:
a)in Haar v Maldon Nominees Pty Ltd (t/as McDonalds) & Ors [2000] FMCA 5; (2000) 184 ALR 83 it was found that a visually impaired applicant who was accompanied by her guide dog had been discriminated against when she was asked to sit outside on her next visit to the respondent’s restaurant. Compensation of $3,000 was ordered for injured feelings, distress and embarrassment;
b)in Innes v Rail Corporation (NSW) (No 2) [2013] FMCA 36; (2013) 273 FLR 66, the applicant was found to have been discriminated against by the respondent as it had failed to make clear, audible next stop announcements on its trains on 18-20 per cent of the occasions. Compensation of $10,000 was awarded for the anxiety and distress caused to the applicant;
c)in Burns v Director-General of the Department of Education [2015] FCCA 1769 the Court awarded damages of $8,000 to a profoundly disabled child in relation to requiring her to use inadequate toilet facilities at school, the use of disabled parking bays which were too narrow at her school, and having to use ramps which were too steep to access a classroom; and
d)in Huntley v NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827; (2015) 251 IR 136, an appeal from which was dismissed on the point of calculation of damages in State of New South Wales (Department of Justice – Corrective Services) v Huntley [2017] FCA 581 at [225]-[252] per Perry J, the applicant was awarded $75,000 general damages in respect of damages to the applicant’s mental health and by reason of victimisation.
In respect of the relief sought, the Court simply notes that:
a)it has no power to order a prosecution to be brought in respect of the incident involving Mr Ellis;
b)it has the power to revoke or suspend a licence of members of the security staff at Burswood Nominees or the Crown Resort, but there is no evidence that the preconditions for the exercise of that power have been met;
c)it is difficult to see how it is that an order for the termination of the employment of employees of Burswood Nominees, or any other person providing services at the Crown Resort, might constitute redress for loss and damage, if any, suffered by Mr Ellis;
d)there is power to award an apology, but an apology is generally only ordered where the party ordered to apologise is genuinely sorry for its actions; and
e)awards of damages in relation to disability discrimination (and other forms of discrimination under federal discrimination law) have, traditionally, only been a fraction of the sum sought by Mr Ellis by way of damages.
There is nothing in the above analysis of the relief sought which would warrant the Court summarily dismissing the Originating Application, particularly in circumstances where forms of relief often ordered in disability discrimination cases, such as damages by way of compensation and an apology, are sought in these proceedings. It is however obvious that the form of the relief sought overall will need to be re-thought, and cast in proper form, in any Statement of Claim filed by Mr Ellis.
Conclusion and orders
The Court has concluded that:
a)Burswood Nominees’ Application in a Case for summary dismissal of the proceedings is to be dismissed;
b)Mr Ellis is to file and serve a Statement of Claim by 10 August 2019; and
c)the matter is to be adjourned to a directions hearing before a Judge of the Court at a time and a date to be fixed,
and there will be orders accordingly.
The Court will hear the parties as to costs.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 10 July 2019
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