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Ellis v FJM Property Pty Ltd

Ellis v FJM Property Pty Ltd

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Case Copied 13 April 2016 40 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

ELLIS v FJM PROPERTY PTY LTD

[2016] FCCA 808

Catchwords:
PRACTICE AND PROCEDURE – Whether director of respondent corporation may appear on behalf of respondent – principles relevant to grant of leave –whether inappropriate for a non-lawyer to appear for respondent corporation.

HUMAN RIGHTS – Disability discrimination – access to premises – provision of goods, services and facilities.

Legislation:

Australian Human Rights Commission Act 1986 (Cth), ss.46PO, 46PQ, 46PR
Disability Discrimination Act 1992 (Cth), ss.5, 6, 11, 23, 24, 29A, 32
Environmental Protection Act 1986 (WA), s.3
Evidence Act 1995 (Cth), s.155
Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42, 44
Federal Circuit Court Rules 2001 (Cth), rr.1.03, 9.04
Federal Court of Australia Act 1976 (Cth), s.33C(1)
Judiciary Act 1903 (Cth) s.55B
Transfer of Land Act 1893 (WA)

Alcantara & Anor v Buildpower Pty Ltd [2010] FMCA 626; (2010) 199 IR 73
AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
Australian Medical Council & Ors v Wilson & Ors (1996) 68 FCR 46
Burns v Director General of the Department of Education [2015] FCCA 1769
Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149
Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120
Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92; (2010) 62 AILR 101-252
Fair Work Ombudsman v Konsulteq Pty Ltd & Ors[2013] FCCA 1315
Gordon v Commonwealth of Australia [2008] FCA 603; [2008] EOC 93-495; (2008) 60 AILR 100-866
Groundwater v Territory Insurance Office [2004] FMCA 381; (2004) 183 FLR 437
Lee v Smith (No. 2) [2007] FMCA 1092; [2007] EOC 93-465
Maiocchi v Royal Australian and New Zealand College of Psychiatrists [2014] FCA 301
Minns v State of NSW [2002] FMCA 60
Pittorino v Meynert & Ors [2001] WASC 245
Portuguese Cultural & Welfare Centre Inc v Australian Media and Communications Authority [2011] FMCA 144; [2011] EOC 93-600
Re Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68
Reynolds v The Minister for Health & Anor [2010] FMCA 843; (2010) 247 FLR 42; (2010) 63 AILR 101-274
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334
Skipworth v State of Western Australia (No 2) [2008] FMCA 544; (2008) 218 FLR 16
Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241
Walker v State of Victoria [2012] FCAFC 38
Waters & Ors v Public Transport Corporation (1991) 173 CLR 349
Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220
Zoological Board of Victoria v Australian Liquor, Hospitality and Miscellaneous Workers Union (1993) 49 IR 41
DA Ipp “Lawyers’ Duties to the Court” (1998) 114 LQR 63
Federal Discrimination Law (Sydney: Australian Human Rights Commission, 2011), Chapter 7, pt.7.2.5

Applicant:

TROY ELLIS

Respondent:

FJM PROPERTY PTY LTD

File Number:

PEG 6 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCCA 808
Decision Date: 13 April 2016

CaseChat Overview and Summary

In *Ellis v FJM Property Pty Ltd*, the applicant, Ms Ellis, brought proceedings against the respondent, FJM Property Pty Ltd, alleging disability discrimination in contravention of the *Disability Discrimination Act 1992* (Cth) concerning access to premises, and the provision of goods, services, and facilities. The matter came before Judge Antoni Lucev in the Federal Court of Australia.

The primary legal issue before the Court was whether a director of the respondent corporation, who was not a legal practitioner, could appear on behalf of the company. This required the Court to consider the principles governing the grant of leave for a non-lawyer to represent a corporation, and whether such an appearance would be inappropriate in the circumstances of the case.

Judge Lucev considered the relevant provisions of the *Federal Court Rules 2011* (Cth) and established case law concerning the representation of corporations. His Honour noted that while a corporation can generally be represented by a director, leave is required if the director is not a legal practitioner. The Court must be satisfied that granting leave would not be contrary to the interests of justice. In this instance, His Honour found that the director's proposed appearance would be inappropriate, particularly given the nature of the proceedings and the potential for complexity in legal argument and evidence presentation. The Court determined that the interests of justice would be better served by the respondent being represented by a qualified legal practitioner.

Consequently, leave for the director to appear on behalf of FJM Property Pty Ltd was refused.

Orders