Ellis v FJM Property Pty Ltd
[2016] FCCA 808
•13 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v FJM PROPERTY PTY LTD | [2016] FCCA 808 |
| Catchwords: 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 |
| 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 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 12 August 2015 |
| Date of Last Submission: | 12 August 2015 |
| Delivered at: | Perth |
| Delivered on: | 13 April 2016 |
REPRESENTATION
| For the Applicant: | In person (by telephone, by leave) |
| For the Respondent: | Mr B Jones (a director of the respondent, by leave) |
ORDERS
That the respondent’s application in a case filed 20 April 2015 be dismissed.
That lawyers for the respondent file and serve a Notice of Appointment and an address for service by 21 April 2016.
That the matter be adjourned to a further directions hearing at 9.30am on 12 May 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 6 of 2015
| TROY ELLIS |
Applicant
And
| FJM PROPERTY PTY LTD |
Respondent
REASONS FOR JUDGMENT
Application in a Case
The Court has before it an Application in a Case filed on 20 April 2015 for leave to appear other than by a lawyer made by the respondent in these proceedings, FJM Property Pty Ltd (“FJM Property”).
FJM Property seeks to have Barry Ronald Jones (“Mr Jones”), who is a director of FJM Property, appear for it. The applicant in the originating application, Troy Ellis (“Mr Ellis”), opposes leave being granted to Mr Jones to appear for FJM Property.
Affidavit in support of the Application in a Case
In support of the Application in a Case Mr Jones has sworn an affidavit (“Mr Jones’ Affidavit”). Mr Jones’ Affidavit attests to no more than the fact that the Directors of FJM Property have met and appointed him to represent FJM Property in this litigation.
Originating application and response
The originating application is inadequately particularised, but seemingly purports to allege disability discrimination, in contravention of the Disability Discrimination Act 1992 (Cth) (“DD Act”) by reason of Mr Ellis not being able to access all or part of premises, or not being provided with goods or services or the making available of facilities, none of which are identified in the originating application. It appears, however, from the Response and submissions filed by FJM Property, to be common ground that the premises are situated at 742 Newcastle Street, Leederville, an inner northern suburb of Perth, and from the premises a food and beverage business trading as “The Garden” is apparently operated.
The Response filed by FJM Property opposes the orders sought by Mr Ellis and seeks the dismissal of the application and compensation. The grounds of opposition are set out at Item 4 in Part C of the Response as follows:
1.The application fails to specify the discrimination alleged as is required by s.46PO(3)(a) of the Australian Human Rights Commission Act 1986 (“the Act”).
2.Section 4 of the application states that the applicable act is the Disability Discrimination Act 1992 and its section 5 states that the relevant section of that act is 46PH(2). There is no section 46PH(2) in the Disability Discrimination Act 1992.
3.The application names the respondent as being FJM Property Pty Ltd. The Respondent is aware from the complaint the Applicant made in 2014 to the Australian Human Rights Commission (which complaint has since been dismissed by the Commission on the basis that it was groundless) that order 2. which the Applicant seeks relates to licensed premises situated at 742 Newcastle Street, Leederville which trades as “The Garden”. As FJM Property Pty Ltd does not own The Garden, which fact the Respondent understands was communicated to the Applicant by the Commission, this application is, at the very least, misconceived and vexatious (please refer to Annexure “A”).
It is unnecessary for present purposes to set out the terms of Annexure A referred to in paragraph 3 of the grounds of opposition quoted above. It suffices to say that it appears to be an email from Mr Ellis to Mr Jones which makes allegations about Mr Jones in most derogatory terms.
Rights of appearance
Section 44 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) provides as follows:
A party to a proceeding before the Federal Circuit Court is not entitled to be represented by another person unless:
(a) under the Judiciary Act 1903, the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or
(b) under the regulations, the other person is taken to be an authorised representative; or
(c) another law of the Commonwealth authorises the other person to represent the party.
Rule 9.04 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides as follows:
Except as provided by or under an Act or regulations made under an Act, or with the leave of the Court, a corporation may not start or carry on a proceeding otherwise than by a lawyer.
Section 46PQ of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) provides as follows:
(1) A party in proceedings under this Division:
(a) may appear in person; or
(b) may be represented by a barrister or a solicitor; or
(c) may be represented by another person who is not a barrister or solicitor, unless the court is of the opinion that it is inappropriate in the circumstances for the other person to appear.
(2) A person, other than a barrister or solicitor, is not entitled to demand or receive any fee or reward, or any payment for expenses, for representing a party in proceedings under this Division.
Section 46PQ(1)(c) of the AHRC Act is “another law of the Commonwealth” authorising another person to represent a party for the purposes of s.44(c) of the FCCA Act “unless the court is of the opinion that it is inappropriate in the circumstances for the other person to appear”, and an exception provided by another Act in relation to a corporation starting or carrying on proceedings otherwise than by a lawyer for the purposes of r.9.04 of the FCC Rules: Portuguese Cultural & Welfare Centre Inc v Australian Media and Communications Authority [2011] FMCA 144; [2011] EOC 93-600 at [126]-[127] per Lucev FM (“Portuguese Cultural”).
The Court has discretion under s.46PQ(1)(c) of the AHRC Act to allow Mr Jones to appear as a non-lawyer in these proceedings. The discretion is to be exercised cautiously: Groundwater v Territory Insurance Office [2004] FMCA 381; (2004) 183 FLR 437 at [39] per Brown FM (“Groundwater”). The general restriction on appearances, allowing only individuals who are parties or qualified legal practitioners to appear, seeks to ensure that the Court has assistance from:
a)parties who know their case; or
b)qualified legal practitioners who:
i)can make informed submissions;
ii)can assist the Court; and
iii)have duties to their clients and to the Court, which duties unqualified persons do not have.
Groundwater at [40] per Brown FM; Reynolds v The Minister for Health & Anor [2010] FMCA 843; (2010) 247 FLR 425; (2010) 63 AILR 101-274 at [7] per Lucev FM (“Reynolds”).
The purpose underlying such legislative provisions is to ensure that in accordance with the interests of justice and the administration of justice the Court is assisted by those qualified and experienced in arguing legal disputes and who have ethical duties to clients and the courts: Groundwater at [40] per Brown FM; Alcantara & Anor v Buildpower Pty Ltd [2010] FMCA 626; (2010) 199 IR 73 at [10] per Lucev FM (“Alcantara”). Lawyers may also be of considerable assistance to the Court in the proper assessment of fact: Re Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68 at 74 per Smithers J (“Molnar Engineering”). Incorporation confers many benefits on those connected with a corporation; and also imposes some corresponding burdens, one of which is that in litigation a corporation must normally be represented by a lawyer: Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 at [14] per French J; Fair Work Ombudsman v Konsulteq Pty Ltd & Ors[2013] FCCA 1315 at [11] per Judge Lucev (“Konsulteq”) (and the other cases there cited).
When deciding whether to exercise discretion to grant leave to allow a non-lawyer to appear on behalf of a party, courts generally take into account the following principles:
a)the complexity of the matter;
b)the genuine difficulties of a self-represented party;
c)the unavailability of disciplinary measures against, and the absence of any duty to the Court by, lay advocates;
d)protection of the client and the opponent from the actions of an unqualified person;
e)whether lay advocates ought to appear in inferior courts and tribunals; and
f)the interests of justice.
The above principles were enunciated after an extensive review of the authorities in Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149; (2002) 195 ALR 256 at [69]-[86] per Stein JA (“Damjanovic”), and have been applied in cases under the AHRC Act where leave to appear has been sought under s.46PQ(1)(c) of the AHRC Act, including Groundwater at [42]-[46] per Brown FM; Reynolds at [8] per Lucev FM; Portuguese Cultural at [129] per Lucev FM, and will be applied to the present Application in a Case.
It is relevant to observe that although s.46PQ(1)(c) of the AHRC Act provides that a person may be represented in a federal court by a non-lawyer, and that this reverses the usual position that only a lawyer may appear in a federal court, save where leave for a non-lawyer to appear is granted: Judiciary Act 1903 (Cth) s.55B; FCCA Act, s.44; FCC Rules, r.9.04, the test to determine whether it is inappropriate for a non-lawyer to appear for the purposes of s.46PQ(1)(c) of the AHRC Act must be substantially the same as that applied in determining whether to grant leave for a non-lawyer to appear, both generally and under r.9.04 of the FCC Rules in relation to a non-lawyer appearing for a corporation. As to the test under r.9.04 of the FCC Rules see, for example, Alcantara and Konsulteq, where the relevant principles, although expressed in slightly different and more detailed terms than in Groundwater, Reynolds and Portuguese Cultural, are in substance the same.
DD Act provisions which may be relevant
As indicated earlier in these Reasons for Judgment, the originating application is inadequately particularised, but doing the best the Court can, and in order to make some sense of what might be alleged by the originating application, it appears that it might involve an allegation of:
a)direct or indirect disability discrimination; and
b)the discrimination being in relation to:
i)access to premises; or
ii)the provision of goods or services or the availability of facilities.
The nature of discrimination, and whether it is direct or indirect discrimination, is set out in ss.5 and 6 of the DD Act, which provide as follows:
a)section 5 of the DD Act:
Direct disability discrimination
(1) For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator ) also discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.
b)section 6 of the DD Act:
Indirect disability discrimination
(1) For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
(2) For the purposes of this Act, a person (the discriminator ) also discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.
Section 23 of the DD Act, which deals with access to premises, and which might therefore be relevant to access to “The Garden” provides as follows:
It is unlawful for a person to discriminate against another person on the ground of the other person's disability:
(a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or
(b) in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises; or
(c) in relation to the provision of means of access to such premises; or
(d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or
(e) in the terms or conditions on which the first-mentioned person is prepared to allow the other person the use of any such facilities; or
(f) by requiring the other person to leave such premises or cease to use such facilities.
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
Section 24 of the DD Act, which deals with the provision of goods and services, and the making available of facilities provides as follows:
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
Submissions
Submissions for FJM Property
FJM Property made the following written submissions (which it relied upon at the hearing of the Application in a Case):
a)Mr Jones has been appointed by a meeting of directors to represent FJM Property in the litigation and granted authority to bind it in the matter;
b)that the preliminary issue for the Court to decide is a simple one, being purely a question of fact, and that FJM Property can be effectively represented without a lawyer appearing on its behalf, and that neither party will suffer prejudice by reason of the non-appearance of a lawyer for FJM Property;
c)that Mr Ellis has alleged disability discrimination in contravention of the DD Act;
d)that it understand that the disability discrimination “is in relation to some difficulty … [Mr Ellis] claims to have experienced in climbing a set of stairs located inside premises which are situate at 742 Newcastle Street, Leederville … and from which a food and beverage business which trades as “The Garden” is operated”; and
e)that FJM Property does not own any portion of the business of “The Garden”, nor does it own any portion of the premises from which the business of “The Garden” is operated. Annexed to FJM Property’s submissions, but admissible as evidence under the provisions of s.155 of the Evidence Act 1995 (Cth) were the following:
i)an extract from the Australian Securities and Investments Commission (“ASIC”) data base for the business name “The Garden” at the Leederville Hotel”, which indicates that the holder of the business name is a body corporate called Pent Pty Ltd; and
ii)a Certificate of Title (being Volume 1974 Folio 331) (“COT”) under the Transfer of Land Act 1893 (WA) which identified seven parties as tenants in common in the land described as Lot 30 on Diagram 42555, and the street address of which is 742 Newcastle Street, Leederville, namely:
A.Argyle Holdings Pty Ltd of 34 St Quentin Avenue, Claremont
In 63/200 Share;
B.Tegra Pty Ltd of 34 St Quentin Avenue, Claremont
In 63/200 Share;
C.Bantoy Pty Ltd of 155 High Road, Willetton
In 16/200 Share;
D.Fabray Pty Ltd of 155 High Road, Willetton
In 16/200 Share
E.Michela Fini of 3 Webb Street, Cottesloe
In 8/200 Share
F.Goldprize Investments Pty Ltd of 34 St Quentin Avenue, Claremont
In 11/200 Share
G.Yalaba Pty Ltd of Shop B1, Bayview Shopping Centre, 303 Stirling Highway, Claremont
In 23/200 Share
At the hearing of the Application in a Case Mr Jones submitted that:
a)FJM Property was the incorrect party to the proceedings;
b)Mr Jones was aware of all the facts, and was capable of competently representing FJM Property;
c)claims that FJM Property owned or operated “The Garden” were not correct; and
d)he was a director of a company which owned the freehold of the Leederville Hotel, and the director of a company which is the trustee for one of the trusts in a partnership which operates the business of the Leederville Hotel, but neither of those entities are FJM Property.
Submissions by Mr Ellis
Mr Ellis did not file written submissions in accordance with the Court’s orders of 15 April 2015. At the hearing of the Application in a Case Mr Ellis made submission which can be summarised as follows:
a)that his telephone inquiries of the company that owned “The Garden” indicated that it was “part of the same company” as FJM Property;
b)that Mr Jones had perjured himself in relation to saying that he had nothing to do with the property at which “The Garden” was located;
c)that it was insulting to Mr Ellis that FJM Property had not hired a lawyer and that other companies (presumably those against which Mr Ellis has other human rights actions pending in this Court) had hired lawyers to represent them; and
d)Mr Jones had been untruthful in what he had told the Court.
(Transcript, 12 August 2015, pages 3-4).
An exchange at hearing of the Application in a Case
Following Mr Ellis’s oral submissions at the hearing of the Application in a Case the Court asked Mr Jones whether there was anything that he wanted to say in response. Set out below is Mr Jones’ response and the subsequent exchange between Mr Ellis and the Court:
HIS HONOUR: Is there anything you want to say by way of response, Mr Jones.
MR JONES: Well, I don’t want to waste the court’s time responding to everything Mr Ellis said, but obviously he has made a lot of allegations. I’m not aware of any proof that he’s tendering in support of those allegations, but I can confidently say that they are deluded and have no foundation in fact.
MR ELLIS: Piss off. Now, piss off. That’s defamation of character. Shut your mouth.
HIS HONOUR: Well, Mr Ellis - - -
MR ELLIS: I’m not taking – no, I’m not taking crap like that.
HIS HONOUR: Mr Ellis, it’s a submission - - -
MR ELLIS: He’s deluded. He’s a deluded criminal scumbag – corporate scumbag, crap scumbag that rips of the Australian people through the WA Government’s corrupt premier. So don’t come that crap with me, deluded, dickhead.
HIS HONOUR: Mr Ellis - - -
MR ELLIS: No, I’m not taking crap like that, Judge.
HIS HONOUR: Mr Ellis, these are civil proceedings to be conducted civilly.
MR ELLIS: No. I’m not taking words like that – well, you can stop him from saying such crap to me. All right.
HIS HONOUR: Well, can I say to you - - -
MR ELLIS: Well, you’re a judge and you know full well he’s not allowed to say it.
HIS HONOUR: Mr Ellis, your conduct and the language that you are now using is entirely inappropriate.
MR ELLIS: So is he, sorry.
HIS HONOUR: Well, he’s simply indicating - - -
MR ELLIS: No. Well, I don’t like being called deluded. That’s more disability hate crimes. That’s all it is, a hate crime.
HIS HONOUR: Yes. Well, there’s an appropriate manner in which to respond.
MR ELLIS: Sorry. No, there isn’t. When you’re being picked on as a disabled person, there isn’t, from a big millionaire. It’s not appropriate for me not to tell him he’s an asshat.
HIS HONOUR: Mr Ellis, there is an appropriate way to respond to that; the way you’ve just responded is not appropriate.
MR ELLIS: No, there isn’t. No, there isn’t. When I’m – no, Judge, you’re wrong, not when emotions are at stake. You’re wrong. Sorry, I will tell you, Judge Lucev, you’re wrong, because this is an emotional moral issue and I’m a disabled person with feelings and a human, and I’m not going to be called deluded by him any further. Well, he can stop referring to me as deluded or any other scumbag word he wants to use on me. All right.
HIS HONOUR: Look, Mr Ellis, I’m happy - - -
MR ELLIS: I will refrain from using anything ..... as long as he does too.
HIS HONOUR: Mr Ellis, I’m happy for you to make the point that you should not be addressed in those terms. I’m not happy – the court is not happy for you to make that point using the language that you used.
MR ELLIS: Well, that’s just tough, because I’ve had enough of these corporates and that’s tough.
HIS HONOUR: Well - - -
MR ELLIS: I’m an emotional being and I deserve to be allowed to be with all the abuse disabled people put up with in this disgusting country, so I’m allowed to.
HIS HONOUR: All right. I will reserve - - -
MR ELLIS: In that particular regard, I should be allowed to.
HIS HONOUR: I will reserve judgment to a date to be fixed, of which the parties will be advised. The court will adjourn.
(Transcript, 12 August 2015, pages 4-6).
Consideration
Complexity – the factual allegations and legal claims
FJM Property contends that this is a simple case: the respondent does not own or operate “The Garden” and therefore cannot be liable for the alleged discrimination. It also submitted that this had been made known to Mr Ellis by the Australian Human Rights Commission, but there is no evidence that that is the case.
Mr Ellis made no submission, or at least no discernible submission, with regard to the issue of complexity.
The paucity of information in both the originating application and the Response means that it is simply not possible to discern with any certainty on the face of those documents the precise or relevant factual matrix relating to the allegation of disability discrimination made by Mr Ellis and opposed by FJM Property. The originating application complains of disability discrimination, seeks an order that FJM Property “install a lift and full disabled access” (presumably to “The Garden”). Aside from indicating an understanding that what is sought by Mr Ellis by way of an order for the installation of a lift and disabled access relates to “The Garden”, and where “The Garden” is situated, the Response advances the factual matrix no further. It is not, for example, apparent from the originating application what Mr Ellis’ alleged disability is, or when Mr Ellis went to “The Garden”, or what happened when he did.
In the above circumstances, the originating application and the Response do not disclose whether, and if so, to what extent, any factual allegations made in relation to the alleged disability discrimination are, or are likely to be complex.
There is no immediate complexity evident in the nature of the orders sought, and thus:
a)an apology maybe awarded in appropriate cases: Burns v Director General of the Department of Education [2015] FCCA 1769 at [300]-[307] per Judge Lucev (“Burns”) (and the various Federal Court and Federal Magistrates Court cases there cited);
b)the installation of a lift and full disabled access may be ordered, subject to it being “reasonable” to so order: AHRC Act, s.46PO(4)(b); and
c)damages by way of compensation for any loss or damage suffered may be ordered: AHRC Act, s.46PO(4)(d).
Some complexity might arise with respect to:
a)whether it is “reasonable” to order the installation of a lift and full disabled access, with the nature of full disabled access probably having to be determined having regard to the nature of the premises concerned, which is a matter about which the Court knows practically nothing, save that they contain a food and beverage outlet seemingly in proximity to a hotel. It is likely that whether or not such orders are “reasonable” would have to be the subject of expert evidence in relation to whether or not a lift could be installed or full disabled access (whatever that is determined to mean) could be ordered: see, for example, Burns at [153]-[154] per Judge Lucev, where there was no or no sufficient independent expert evidence as to the extent to which a disabled child in those proceedings was able to mobilise using her walker, or to what extent she might have been able to use a wheelchair to mobilise over certain distances in relation to her classroom access, and compare that with the expert evidence which enabled the Court to determine that disability car bays provided by the school concerned were too narrow to allow for the transfer of the disabled child in and out of a motor vehicle: Burns at [203]-[213] per Judge Lucev; and
b)the quantum of any compensation which might be awarded, noting that:
i)expert evidence of the loss or damage suffered by Mr Ellis would be required to assist the Court in determining such compensation; and
ii)the amount of compensation claimed, namely $1m, is significantly in excess of any sum awarded by an Australian court or tribunal in relation to any form of discrimination. The federal courts have in recent years recognised, at least in the area of sex discrimination and sexual harassment, that substantial amounts of compensation might be awarded in discrimination cases: see, for example:
A.Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92; (2010) 62 AILR 101-252 (“Poniatowska”) where at first instance a total of $433,000 in compensation was awarded, which did not include a sum for interest or an order for exemplary or aggravated damages, a sum which was not disturbed on appeal: see Poniatowska at [74]-[75] and [117]-[119] and [128]-[133] per Stone and Bennett JJ;
B.Lee v Smith (No. 2) [2007] FMCA 1092; [2007] EOC 93-465 where this Court awarded $392,422.32 in a case where the Commonwealth was vicariously liable for the rape, sexual discrimination, harassment and victimisation of a civilian administration officer at a Cairns naval base; and
C.the observations of Justice Kenny in Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334 at [78]-[118] (“Richardson”), in proceedings where a first instance award of $18,000 was increased to $130,000 for damages: Richardson at [234] and [239] per Besanko and Perram JJ, where Justice Kenny observed that:
… it is clear that continued adherence in sex discrimination cases, including sexual harassment cases, to a “range” of damages awards that has not absorbed the increases evident in awards in other fields of litigation has resulted in an award in Ms Richardson’s case that, judged by prevailing community standards, is disproportionately low having regard to the loss and damage she suffered.
Richardson at [117] per Kenny J.
Amounts awarded under the DD Act have not been as substantial, although in Gordon v Commonwealth of Australia [2008] FCA 603; [2008] EOC 93-495; (2008) 60 AILR 100-866 where a total of $121,762 in damages was awarded, traditionally damages for disability discrimination have not been high, and might, in fact, have been disproportionately low: see the list appearing at Part 7.2.5 of Chapter 7 of Federal Discrimination Law (Sydney: Australian Human Rights Commission, 2011).
In relation to the complexity of the legal claims, the manner in which the claim is pleaded by Mr Ellis does not make it immediately possible to say that his claims as pleaded are legally complex. Mr Ellis’s claim fails to set out whether direct discrimination under s.5 of the DD Act or indirect discrimination under s.6 of the DD Act, or both, are relied upon. Further, it is not apparent whether ss.23 or 24 of the DD Act, or both, are relied upon, although it might be implied that one or both of those sections must apply to the claim made.
The authorities indicate that direct and indirect discrimination are mutually exclusive, as “that which is direct cannot also be indirect”: Minns v State of NSW [2002] FMCA 60 at [173] per Raphael FM (“Minns”) citing Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 and Australian Medical Council & Ors v Wilson & Ors (1996) 68 FCR 46, but this does not prevent an applicant from arguing that the same facts constitute direct and indirect discrimination in the alternative: Minns at [245] per Raphael FM.
There are two types of direct disability discrimination: firstly, less favourable treatment: DD Act, s.5(1), and secondly, failure to make reasonable adjustments: DD Act, s.5(2), both of which may be relevant to the circumstances of this case.
If this is a case of alleged direct disability discrimination and a failure to make reasonable adjustments to the premises at “The Garden” then significant issues might arise in relation to what might constitute a “reasonable adjustment” and whether reasonable adjustments have been made, in the context of whatever might be an appropriate comparator for the purposes of s.5 of the DD Act: see, for example, Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 at [15]-[39] per Mortimer J which highlights the complexity inherent in the determination of such issues, albeit in a slightly different context. Dealing with these issues may also require the Court to deal with the issue of whether or not there is a capacity on the part of any respondent to avoid liability for discrimination because it would impose an “unjustifiable hardship” in terms of ss.11 and 29A of the DD Act. There is probably little doubt that in order to prove unjustifiable hardship expert evidence would be required. Further, although it is not presently claimed, it is also possible that an issue may arise in the course of the proceedings as to whether or not FJM Property breached s.32 of the DD Act by not complying with relevant standards.
On the face of the proposition put forward by FJM Property, that it does not own the property, is a simple one. It is also supported by the limited evidence presently available to the Court in the form of the COT, which does not show FJM Property as one of the tenants in common or co-owners of the property on which “The Garden” is situated. There are, however, indications that the true position with respect to the ownership of the property on which “The Garden” is situated may be more complex. Mr Jones himself indicated that there may be a somewhat more complex ownership structure in relation to which he is a director of a company which is the trustee for one trust which is in a partnership which operates the business of the Leederville Hotel, which it appears “The Garden” is situated within: see the ASIC business name search at [19(e)(i)] above. And whilst Mr Jones asserted that FJM Property was not one of the entities to which he referred, and further asserted that FJM Property did not have a part in the operation of “The Garden”, no evidence of those more complex trust and partnership arrangements, and in particular the other trusts, and the trustees, whether corporate or otherwise, of those trusts, and the partnerships, engaged in the business concerned was put before the Court. Effectively, Mr Jones has opened up not merely the proposition that he puts forward that FJM Property is not an owner or operator of “The Garden”, but has also raised the possibility of a significantly more complex legal and beneficial ownership and operating structure, in relation to which there is no, or no sufficient, evidence that FJM Property is not involved. If these proceedings are maintained solely against FJM Property it will be for Mr Ellis to prove the nature of FJM Property’s involvement in “The Garden”. No doubt FJM Property will advance the contrary contention that it is not the owner or operator of, or otherwise involved in, the business of “The Garden”. Both in relation to the evidence and the law that process might involve some complexity in relation to the relevant ownership and operating structures.
The tendering of the COT as part of FJM Property’s submissions may also raise other complexities. Whilst the COT was relied upon to buttress the simple proposition that FJM Property was not the owner or registered proprietor of the property on which “The Garden” is situated, as seemingly appears under the First Schedule of the COT, other issues may arise when reference is made to the Second Schedule dealing with “Limitations, Interests, Encumbrances and Notifications” under the COT.
The first of those other issues is that there is a memorial on the COT registered on 14 September 1994 under the provisions of the Environmental Protection Act 1986 (WA) (“EP Act”). The nature of that memorial, and whether it has any significance, for example, in relation to alterations to the premises of “The Garden” is not apparent. It is therefore not apparent as to whether the existence of the memorial under the EP Act might affect the Court’s capacity to order the installation of a lift and full disabled access as sought by Mr Ellis, or might have affected any capacity to make reasonable adjustments to the property: DD Act, s.5(2). In relation to the EP Act it is also relevant to note the definition of “occupier” in s.3 of the EP Act which provides as follows:
occupier , in relation to —
(a) any premises, means a person who is in occupation or control of those premises, whether or not that person is the owner of those premises; or
(b) premises different parts of which are occupied by different persons, means, in relation to any such part, a person who is in occupation or control of that part, whether or not that person is the owner of that part;
The definition of “occupier” in s.3 of the EP Act might mean that any restriction imposed under the memorial registered under the EP Act might apply to any person who is in “control” of “The Garden”, which need not be the owner of those premises, or the person in occupation of those premises, occupation and control being discrete concepts for these purposes by reason of the use of the disjunctive “or” between “occupation” and “control” in the definition of “occupier” under s.3 of the EP Act. The Court notes that Mr Jones was, arguably, careful to say that FJM Property was not the “owner” or “operator” of “The Garden”, but said nothing as to who was in “control” of those premises. That might be a relevant issue because ss.23 and 24 of the DD Act make it unlawful for a “person” to discriminate against another person, and are not, on their face, restricted to the owner or occupier of any property to which access is sought, or the owner or occupier of any property from which the provision of goods and services or the making available of facilities, is provided.
The second such issue is that the interest of Goldprize Investments Pty Ltd (“Goldprize Investments”) which has an 11/200th share as a tenant in common of the land upon which “The Garden” is situated, is mortgaged under a mortgage registered on 12 November 2009 to FJM Equities Pty Ltd (“FJM Equities”). It may ultimately be that nothing turns upon it, but in a case where issues of ownership, occupation, operation and control may all be relevant, the relationship between similarly named entities – FJM Equities and FJM Property – if any at all, might be relevant. And, if so, it may add to the complexity of the arrangements concerning ownership, occupation, operation or control of “The Garden”.
Thirdly, the COT reveals the existence of a caveat by the Town of Vincent lodged on 21 June 2010 over the property. No further detail of the caveat appears on the copy of the COT which is in evidence. Again, nothing may turn upon the caveat, but it may also be that it might affect the Court’s capacity to make, or the nature of any, order which might be made, at the conclusion of the proceedings in relation to the installation of a lift or full disabled access to “The Garden”, if Mr Ellis were to succeed in his application.
As the Court has indicated nothing may turn upon each of the above matters possibly arising out of the Second Schedule to the COT. Equally, however, much may turn upon them, particularly in terms of whether or not it is reasonable to make an order under s.46PO(4)(c) of the AHRC Act, or whether any requirements or conditions imposed upon access to “The Garden” are reasonable requirements or conditions: DD Act, s.6(3) and (4); or, whether there was or was not a failure to make reasonable adjustments to the premises to facilitate disabled access: DD Act, s.23(2) and (3).
In all the above circumstances, it is plain that there is a not insignificant degree of complexity likely to arise in relation to the issue of whether or not FJM Property owns, operates, occupies or controls the premises on which “The Garden” is situated, and therefore whether it is the proper respondent to these proceedings, even without necessarily considering the issues of reasonable adjustment, unjustifiable hardship and reasonableness of requirements or conditions which might arise if it is the proper respondent. It follows, therefore, that the not insignificant degree of complexity does not favour a non-lawyer appearing for FJM Property in these proceedings.
Whether a non-lawyer appears or has appeared previously for any of the parties
For practical purposes appearances in this matter have been limited to a directions hearing, and to the determination of the issue posed by the Application in a Case, that is whether FJM Property ought to be represented by a non-lawyer. Consequently, there has been no appearance by a lawyer to date in these proceedings, either for FJM Property, or for Mr Ellis who is self-represented.
The Court notes that FJM Property argued this matter solely on the basis of the alleged simplicity of the issues, and put forward no other reasons as to why a non-lawyer ought to appear for FJM Property. The argument that these are simple proceedings has been dealt with above, and the Court has found that these are not necessarily simple proceedings, and the nature and complexity of the matter does not favour a non-lawyer appearing.
In the circumstances, therefore, the fact that a non-lawyer has appeared for FJM Property to date neither weighs for nor against leave to be represented by a non-lawyer being granted to FJM Property. What does weigh against a non-lawyer appearing for FJM Property in those circumstances is that no other consideration has been put forward as justifying the appearance of a non-lawyer.
Appearances in non-superior courts or tribunals
In Damjanovic at [81]-[82] per Stein JA it was observed that:
81. There are indications in some of the cases that Local Courts, given their jurisdiction and large numbers of unrepresented litigants, may be more likely to grant leave to unqualified persons. This is, one assumes, in straightforward uncomplicated matters where the party is under some disability in presenting his/her own case. This may also be the case with some specialist jurisdictions and tribunals.
82. The authorities however suggest that higher courts should be very chary at giving leave. ….
For reasons set out above, this case is not necessarily a “straightforward uncomplicated” matter. Further, it is necessary to consider the nature of the jurisdiction conferred upon this Court under the AHRC Act, and whether that equates to the jurisdiction of a non-superior court or constitutes a specialist jurisdiction. There can be no dispute that this Court is not a tribunal in the sense referred to in Damjanovic.
This Court shares concurrent jurisdiction with the Federal Court in relation to applications made under s.46PO(1) of the AHRC Act. The only apparent point of differentiation is that representative proceedings may be brought in the Federal Court, but not in this Court: see Federal Court of Australia Act 1976 (Cth), s.33C(1). Thus, this Court, like the Federal Court, has the ability to award the full range of remedies provided for in s.46PO(4) of the AHRC Act, including damages, unlimited in quantum. In this case the application seeks the payment of compensation in a sum far exceeding any sum ever awarded by a federal court in a case under Commonwealth anti-discrimination legislation: see [28(b)] above.
Whilst this Court is not a superior court, as the Federal Court is: Skipworth v State of Western Australia (No 2) [2008] FMCA 544; (2008) 218 FLR 16 at [37] per Lucev FM, it nevertheless in this case exercises concurrent jurisdiction with the Federal Court. Nor is this Court a court of specialist jurisdiction: rather it is a federal court of specific, associated and ancillary jurisdiction. In those circumstances, the principles outlined in Damjanovic suggest that, as this Court is exercising concurrent jurisdiction with the Federal Court, which is a superior court, it ought “be very chary at giving leave”: Damjanovic at [82] per Stein JA.
Having regard to the nature of the jurisdiction conferred on this Court it can be said this this Court:
a)shares concurrent jurisdiction with a superior court in relation to matters under the AHRC Act, and consequently the DD Act, in the matter; and
b)is not a court of specialist jurisdiction;
which are further reasons why a non-lawyer ought not to appear in this matter.
Effectiveness of representation, duty to the Court and prejudice
In Damjanovic the following observations were made:
a)a legal practitioner has a duty of absolute probity: Damjanovic at [74] per Stein JA;
b)in appropriate cases a legal practitioner may be ordered to pay costs, whereas the position is far from clear in relation to a non-party lay advocate: Damjanovic at [75] per Stein JA;
c)the overall duty of a barrister or solicitor to the court is an important consideration. It is a duty of candour and a practitioner must not knowingly mislead the court. The court is entitled to place reliance on that duty and expect it to be met. The disciplinary codes of the legal profession back up the overriding duty of a practitioner to the court: Damjanovic at [76] per Stein JA;
d)with unqualified, unaccredited and uninsured lay advocates, the court loses the benefit of the overriding duty, as a lay advocate does not owe the same duty to his client as does a lawyer, and clients are at a distinct disadvantage and at considerable risk: Damjanovic at [77] per Stein JA; and
e)the efficient disposal of legal proceedings usually, but not always, requires that those proceedings be presented by professionals skilled in the law: Damjanovic at [83]-[84] per Stein JA.
The Court notes that there is no evidence that Mr Jones has qualifications in law or advocacy or any related field, or experience as an advocate before any court or tribunal in any matter, whether complex or otherwise.
In the Court’s view FJM Property’s failure to engage a lawyer may have already resulted in inefficiencies in the running of this case. For example, a lawyer presenting the matter for FJM Property, and taking the point presently taken by FJM Property that it is not the owner or operator or otherwise involved in “The Garden” would not only have dealt with the issues giving rise to the Court having found that this is a complex case, as set out above, but would have also been likely to have sought to have the matter summarily dismissed on the basis that the originating application discloses no reasonable cause of action because:
a)no facts are alleged which could form the basis for a cause of action under the DD Act, and most notably, there is no allegation as to when, where or how it is said that Mr Ellis was discriminated against in attempting to access, or make use of the facilities at, “The Garden”; and
b)no legal basis, or proper factual basis, for the alleged discrimination is set out properly, or at all, in the originating application.
Had FJM Property been represented by a lawyer the issues dealt with above in relation to whether or not these proceedings are complex might have been considered by, and dealt with, by a lawyer, and assuming that the contention put by FJM Property is not incorrect (that it is not the owner or operator of “The Garden”) the case might already have been disposed of in FJM Property’s favour. The failure to do so may therefore have already prejudiced FJM Property by resulting in the unnecessary prolongation of these proceedings.
In relation to the exchange set out above: see [22] above, primarily between the Court and Mr Ellis, but originating in Mr Jones’ remark that Mr Ellis was “deluded”, an experienced lawyer, bringing to bear the skills of a professional advocate might have been unlikely to have used the word which caused Mr Ellis concern, or a similar word, to describe Mr Ellis. What the origins of the exchange do however highlight is that it may be very difficult, in the circumstances of this case, for a lay advocate to effectively represent FJM Property in opposition to Mr Ellis. That particularly applies to Mr Jones because there is, on the material put before the Court by FJM Property, considerable personal animosity between Mr Jones and Mr Ellis. That kind of personal animosity is antithetical to effective representation because of the clash that it involves between the lay person involved as an advocate and the best interests of FJM Property. Those difficulties might be further exposed were, for example, Mr Jones be required to cross-examine Mr Ellis. Mr Jones may not have the necessary skills that a professional advocate would have to avoid personal slights, and to stick to the issues in contention in any cross-examination of Mr Ellis. Further, it is not apparent if Mr Jones might be required to be a witness in these proceedings, but if that were the case, then it is inappropriate that he be both advocate and witness, as it is likely to result in confusion between the two roles and to colour the independence and objectivity usually required of an advocate which is necessary for the truly effective representation of a party, and to make it difficult for him to fulfil an advocates duty to the Court: Pittorino v Meynert & Ors [2001] WASC 245 at [7]-[10] per Bredmeyer M; DA Ipp “Lawyers’ Duties to the Court” (1998) 114 LQR 63 at 92.
FJM Property’s assertion that Mr Jones “has authority to bind the respondent” does not affect the Court’s consideration of the matters set out above.
In all of the above circumstances, for FJM Property to be effectively represented, and not possibly prejudiced in these proceedings, it would be more appropriate if it was represented by a lawyer than a non-lawyer, and in the circumstances of this case, in particular, not represented by Mr Jones.
The Court must add that it is not being personally critical of Mr Jones or his conduct in the proceedings before the Court, and there is certainly no present basis for asserting, as Mr Ellis did in his oral submissions, that Mr Jones has perjured himself or been untruthful, in any material that he has presently put before the Court. Rather, the Court is making the point that a lawyer representing FJM Property might have dealt with the issues in a different manner, and a manner more conducive to a possible earlier and positive outcome for FJM Property.
Interests of justice – objects of relevant legislation and case management considerations
Section 46PQ(1)(c) of the AHRC Act which provides that a party may be represented by another person who is not a lawyer unless the Court is of the opinion that it is inappropriate in the circumstances for the other person to appear is set out above. It does not define the circumstances in which it might be “inappropriate” for a person other than a lawyer to appear for a party. Section 46PQ(1)(c) is clearly permissive in its terms insofar as it allows the Court to exercise, judicially, a discretion as to whether or not a party is represented by a non-lawyer. There is, however, nothing in the text of s.46PQ(1)(c) of the AHRC Act which would indicate that in determining whether it is “inappropriate” for a person other than a lawyer to appear for a party, and in particular a corporation, that factors similar to those applicable in determining whether a corporation may start or carry on a proceeding otherwise than by a lawyer under r.9.04 of the FCC Rules are not proper factors for consideration by the Court in making that discretionary judgment. What “circumstances” therefore make it “inappropriate” for another person who is not a lawyer to appear for a party in proceedings under the AHRC Act must therefore be determined, judicially, having regard to all relevant factors: Molnar Engineering at 74 per Smithers 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 v Australian Liquor, Hospitality and Miscellaneous Workers Union (1993) 49 IR 41 at 48 per Moore VP; Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120 at [7] per Lucev FM (“Ejueyitsi”), nor to disregard the usual principles with respect to proper pleading: Maiocchi v Royal Australian and 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 v State of Victoria [2012] FCAFC 38 at [81] per Gray J; Ejueyitsi at [7] per Lucev FM. Thus, the determination of whether it is inappropriate in the circumstances for a person other than a lawyer to appear for a party in proceedings under the AHRC Act is a matter to be determined judicially having regard to all of the circumstances.
The objects and purposes of the FCCA Act in ss.3 and 42 and the FCC Rules in r.1.03 mean that this Court is intended to operate in a manner which:
a)is as informal as possible in the exercise of judicial power;
b)is not protracted in its proceedings;
c)resolves proceedings justly, efficiently and economically;
d)uses streamlined procedures; and
e)avoids undue delay, expense and technicality.
This approach reflects much of the modern approach to case management, and especially the need to take into account the paramount consideration of doing justice between the parties whilst observing that a just resolution must have regard to any relevant legislative purpose or object: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ and [97]-[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
In terms of case management these proceedings are at the early stages, and a determination that FJM Property ought not be represented by a person other than a lawyer would not affect the ongoing case management of these proceedings. Nor, for reasons set out above, would it be inconsistent with the objects of any relevant legislation, nor is it contrary to the interests of justice. Indeed, the interests of justice might be better served by having a lawyer, who has ethical obligations as well as duties to the Court, appear, as those obligations and duties will require the lawyer to not impede the interests of justice in the disposition of the matter.
Conclusions and orders
The Court has concluded that FJM Property’s Application in a Case for Mr Jones to appear for it in these proceedings ought to be dismissed.
In the circumstances it will be necessary for lawyers for FJM Property to file and serve a Notice of Appointment and an address for service. That should be done by 21 April 2016. Otherwise the matter will be adjourned to a further directions hearing at 9.30am on 12 May 2016.
Given that neither of the parties was represented by a lawyer there will be no order as to costs.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 13 April 2016
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