Ellis v FJM Property Pty Ltd (No.2)
[2019] FCCA 1821
•8 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v FJM PROPERTY PTY LTD (No.2) | [2019] FCCA 1821 |
| Catchwords: PRACTICE AND PROCEDURE – Application for summary dismissal – whether no reasonable prospect of success – whether first named respondent in control of or responsible for access to premises and provision of goods, services and facilities. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), ss.46PH, 46PO Federal Circuit Court Rules 2001 (Cth), r.13.10 Federal Court of Australia Act 1976 (Cth), s.31A |
| Cases cited: Australian Securities & Investments Commission v Cassimatis & Anor [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 Dowling v Commonwealth Bank of Australia [2008] FCA 59 Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120 Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014 Reynolds v JP Morgan Administrative Services Australia Ltd & Anor (No.2) [2011] FCA 489; (2011) 193 FCR 507; (2011) 280 ALR 612 |
| Applicant: | TROY ELLIS |
| Respondent: | FJM PROPERTY PTY LTD |
| File Number: | PEG 6 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 17 February 2017 |
| Date of Last Submission: | 17 February 2017 |
| Delivered at: | Perth |
| Delivered on: | 8 July 2019 |
REPRESENTATION
| Applicant: | In person by telephone |
| Counsel for the Respondent: | Mr A Prime |
| Solicitors for the Respondent: | MDS Legal |
ORDERS
The Originating Application filed on 9 January 2015 be dismissed pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) and r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 6 of 2015
| TROY ELLIS |
Applicant
And
| FJM PROPERTY PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application in a case filed on 2 June 2016 (“Application in a Case”) by the respondent, FJM Property Pty Ltd (“FJM Property”), seeking dismissal of the originating application filed on 9 January 2015 (“Originating Application”) by the applicant, Mr Troy Ellis (“Mr Ellis”).
The Application in a Case is brought pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) on two grounds:
a)that Mr Ellis has no reasonable prospect of successfully prosecuting the Originating Application; and
b)that the Originating Application is frivolous or vexatious.
Background
On 9 December 2014 the Australian Human Rights Commission (“AHRC”) issued a Notice of Termination pursuant to s.46PH(1)(a) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) regarding a complaint Mr Ellis had bought against FJM Property, the AHRC being satisfied that the alleged unlawful discrimination was not unlawful discrimination. Mr Ellis filed the Originating Application in this Court invoking the Court’s jurisdiction pursuant to s.46PO of the AHRC Act.
The Originating Application seemingly alleges FJM Property has engaged in disability discrimination, in contravention of the Disability Discrimination Act 1992 (Cth) (“DD Act”) (“Claim”). The nature of the alleged disability discrimination and the place at which it allegedly occurred are not set out in the Originating Application.
Mr Ellis sought orders that FJM Property:
a)make an apology to him in writing;
b)install a lift to enable full disabled access; and
c)pay him compensation in the sum of $1 million.
The Response filed by FJM Property opposed all orders sought by Mr Ellis in the Originating Application.
Evidence from FJM Property establishes that the premises Mr Ellis refers to are situated at 742 Newcastle Street, Leederville, an inner northern suburb of Perth, from which a food and beverage business trading as “The Garden” operates.
On 2 June 2016 FJM Property filed the Application in a Case the subject of these proceedings, supported by an affidavit sworn by Barry Ronald Jones on 11 May 2016 (“First Jones Affidavit”). Pursuant to the Court’s orders of 16 June 2016, FJM Property also filed a written outline of submissions and a further affidavit of Barry Ronald Jones sworn 21 September 2016 (“Second Jones Affidavit”). The First and Second Jones Affidavits were relied upon by FJM Property at the hearing of the Application in a Case.
Despite being entitled to file a written outline of submissions prior to the hearing of the Application in a Case on 17 February 2017, Mr Ellis did not do so. The Court notes that Mr Ellis has not filed any documents in this matter other than the Originating Application.
The Court has previously dismissed an application in a case by FJM Property to enable a director of FJM Property to represent the company in these proceedings, rather than have a legal representative do so: see Ellis v FJM Property Pty Ltd [2016] FCCA 808 (“FJM Property (No.1)”).
Issue foreshadowed in FJM Property (No 1)
The basis upon which FJM Property seeks summary dismissal under s.17A of the FCCA Act and r.13.10 of the FCC Rules is that the wrong respondent has been named, and that this is fatal to the prospects of success of the Originating Application.
In FJM Property (No.1) at [33] per Judge Lucev the Court foreshadowed this issue as it arose on the limited information then before the Court, as follows:
33. 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 Court’s observations as set out in the previous paragraph were made in the context of the issue then before the Court as to whether a non-lawyer ought be given leave to appear for FJM Property in these proceedings.
Submissions
FJM Property’s submissions
FJM Property made the following submissions:
a)FJM Property is not the entity which owns, occupies, operates or controls the premises, but FJM Property acknowledges that directors of FJM Property are also directors of some of the registered proprietors of the premises and are directors of the licensee of the premises;
b)Mr Ellis has made the Originating Application against FJM Property on vexatious grounds or, alternatively, Mr Ellis has a mistaken belief that FJM Property is the registered proprietor or an occupier or operator of the premises;
c)the parameters of the Claim as it commenced are set out in Mr Ellis’ email of 25 May 2014 and the relevant parameters of the Claim are against FJM Property which is said to be the owner of the premises where Mr Ellis allegedly had difficulties in using a ramp to access an area of a building which could not be accessed by a lift;
d)The Garden is a portion of the premises which are licensed premises. FJM Property does not own the property, which is owned by seven registered proprietors as tenants in common, some of those registered proprietors also being directors of FJM Property;
e)the premises occupied by The Garden are leased by the registered proprietors to Pent Pty Ltd (“Pent”) as Trustee for the Leederville Trust, and Pent trades as “The Garden at the Leederville Hotel”, and is also the licensee of the premises, including The Garden;
f)the parameters of the Claim relate to the accessibility of portions of The Garden, and no act, omission, practice or conduct of FJM Property is identified to establish unlawful discrimination: FJM Property must have engaged in an act, omission, practice or conduct, but the Claim does not identify any act, omission, practice or conduct for which FJM Property is responsible;
g)the Claim is clearly intended to be a Claim against the “owner” of the premises occupied by The Garden, but FJM Property is not the owner or occupier of the The Garden’s premises;
h)if the Originating Application is said to be based upon an alleged breach of s.23(c) of the DD Act, it is fanciful to suggest that FJM Property, not being an owner or occupier, had an obligation to govern or control the owner or occupier’s provision of means of access to The Garden’s premises;
i)if the individuals who are the directors of FJM Property could, in their other capacities, exert influence or be involved in the decision-making process of the owners or occupiers, that, in and of itself, is not an act, omission, practice or conduct by FJM Property, and is insufficient to give rise to liability on the part of FJM Property;
j)if the Originating Application by Mr Ellis is said to be based upon an alleged breach of s.24 of the DD Act, it is a prerequisite that the “person ... provides goods or services, or makes facilities available”, and FJM Property is not the party which provides goods or services at The Garden’s premises, nor is it the party that makes facilities available;
k)in any event, The Garden’s premises comply with the relevant standards for the reasons set out by the Delegate of the President of the AHRC in a letter of 9 December 2014 to Mr Ellis, albeit that the relevant standards do not apply for the purposes of s.32 of the DD Act as the construction of the premises concluded before those standards were applicable;
l)there is no prospect of Mr Ellis obtaining an order substituting respondents as the jurisdiction of this Court is enlivened by s.46PO(1) of the AHRC Act, and the terminated Claim was made against FJM Property, and common directorships between some of the registered proprietors and FJM Property do not give rise to an interest by FJM Property in the premises; and
m)Mr Ellis is seeking:
i)a written apology, yet an apology by a person, neither occupier nor owner of the premises or The Garden would be of no value;
ii)an order for the installation of a lift and full disabled access, which would be futile unless it bound a person with the legal right to install, or cause the installation of, the lift or modification of the premises, and in this case FJM Property has no legal or equitable interest, and thus no legal obligation or right to install a lift or change the alleged conditions of the ramp; and
iii)$1,000,000 in compensation “from public liability insurer”, but any public liability insurance policy in relation to the premises would be held by the owner or operator of The Garden, thus an order (if one could be made) against the public liability insurer of a person who is not the owner or occupier of the premises or The Garden, nor the insurer of a named party in these proceedings, cannot be made.
At the hearing of the Application in a Case FJM Property explained in more detail the applicable disability access standards to The Garden. FJM Property also submitted that Mr Ellis appears to have a personal dislike of Mr Jones, a director of FJM Property, and for that reason the Originating Application is vexatiously motivated by feelings of ill will, evidence of which is provided in the First and Second Jones Affidavits.
Mr Ellis’ submissions
As stated above, Mr Ellis filed no written submissions prior to the hearing of the Application in a Case however at that hearing (at which he appeared by telephone) he made oral submissions, which, insofar as they may have been relevant, included the following:
a)he found it very interesting that when he telephoned FJM Property he was told “Yes. Pent – Pent is the same – we’re the same people. Same company, basically”;
b)if FJM Property is not the owner how did the AHRC come to the conclusion that it was FJM Property that would be the respondent;
c)the AHRC were talking to “these people” about his Claim so why did FJM Property not tell the AHRC that, “No, we’re the wrong people”, and so he finds it very hard to believe it is a mistake at all;
d)he does not have the power to hire professional corporate investigators to find out “who owns what, when, how”, but as it has come this far there is a sense of deceitfulness; and
e)he may admit now that it could be a fact that the Court is duty bound to say, “Maybe you’re going to have to take this back to the Human Rights Commission yourself,” and he will accept that as mistakes and oversights do happen, but says that Mr Jones has done so many things wrong in the past that he believes he is deceitful.
The affidavits
The First Jones Affidavit (which was not challenged by way of cross-examination) provides as follows:
a)that the directors of FJM Property are Mr Jones, Mr Fini, Mr David Mack and Mr Timothy Mack, and the sole shareholder in FJM Property is FJM Equities Pty Ltd, which holds all 100 shares: at [5];
b)FJM Equities Pty Ltd has common directors with FJM Property, but its shareholders are three separate proprietary limited companies as trustees for discretionary family trusts each of which holds 20,000 shares: at [6];
c)FJM Property does not own or operate the Leederville Hotel which are the licenced premises at 742 Newcastle Street, Leederville, a portion of which trades as The Garden: at [7]-[8];
d)the premises (that is the land, and the land occupied by the Leederville Hotel including The Garden) is owned by several parties as tenants in common, including six proprietary limited companies, five of which hold their interests through a discretionary family trust and another through a trust, and Mrs Fini: at [10];
e)the directors of the various proprietary limited companies which hold an interest in the premises have some directors in common with FJM Property: at [11] and [16];
f)the holder of the business name “The Garden at the Leederville Hotel” is Pent, and Pent as trustee for the Leederville Trust leases The Garden: at [21] and [23], and holds the liquor licence for the Leederville Hotel: at [24]; and
g)FJM Property is not a shareholder in any of the proprietary limited companies which are tenants in common of the premises, nor is FJM Property a shareholder in Pent, and nor does FJM Property hold any units in the Leederville Trust for which Pent is the trustee and the holder of the liquor licence for the Leederville Hotel: at [10]-[17], [22] and [25].
The Second Jones Affidavit (which was not challenged by way of cross-examination) deals with the control and operation of the premises, and provides as follows:
a)FJM Property does not control or operate the Leederville Hotel, including The Garden, either directly or indirectly, and is not involved in, nor consulted in relation to, decisions made regarding the operation of the Leederville Hotel, and nor does it give instructions or assistance to the registered proprietors of the Leederville Hotel: at [6];
b)Pent as trustee for the Leederville Trust makes all major decisions in respect of the operation of the Leederville Hotel, including The Garden, with minor operational decisions made by the Leederville Hotel manager under delegated authority, and the freehold owners of the Leederville Hotel make all decisions in relation to the freehold of the property on which the Leederville Hotel (including The Garden) stands: at [7];
c)FJM Property’s directors’ meetings are not held jointly with directors’ meetings for Pent, or the directors meetings of any of the companies which act as trustees for those discretionary trusts which are registered proprietors of the Leederville Hotel’s freehold: at [8];
d)directors’ meetings of Pent are held separately to the FJM Property directors’ meetings, with different attendees to those of FJM Property’s directors’ meetings: at [9];
e)FJM Tax Services Pty Ltd provides accounting and taxation services to both Pent and to the registered proprietors of the Leederville Hotel’s freehold, and FJM Equities Pty Ltd provides property management services (limited to the collection of rent from Pent and the payment of council and water rates and land tax levied on the freehold of the Leederville Hotel) to the registered proprietors of the Leederville Hotel’s freehold, but neither of these services are provided by FJM Property although it is a wholly owned subsidiary of FJM Equities Pty Ltd: at [10] (and see [17(a)] above);
f)FJM Property does not receive any money from Pent or the owners of the Leederville Hotel, and nor does it receive any dividends or trust distributions from Pent or the owners of the Leederville Hotel’s freehold: at [11];
g)the website (“Website”) lists various properties as “our venues”, and the name “FJM Property” is used on the website as a brand name under which to provide information to the public about properties and business in which the directors of FJM Property hold indirect interests, but is not intended to provide information only in respect of properties of which FJM Property is part owner: at [12]; and
h)The Garden is listed on the Website as one of the hospitality venues, and may give the incorrect impression that The Garden is either owned or operated by FJM Property.
It follows from the unchallenged evidence above, and the Court has concluded that, FJM Property has no interest, whether as owner, occupier, operator or controller, or otherwise, in the business known as The Garden, or in the premises occupied by The Garden, or more broadly, the premises occupied by the Leederville Hotel.
Consideration
DD Act
Sections 23 and 24 of the DD Act provide as follows:
23. 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.
24. 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.
FCCA Act
Section 17A(2) of the FCCA Act provides as follows:
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
FCC Rules, r.13.10
Rule 13.10 of the FCC Rules provides as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court 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; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
No reasonable prospect
Albeit that s.17A of the FCCA Act and r.13.10(a) of the FCC Rules might afford slightly different means of summary relief, the High Court’s observations 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 on the direct equivalent of s.17A of the FCCA Act in s.31A of the Federal Court of Australia Act 1976 (Cth) (“FC Act”) can nevertheless be applied to the “no reasonable prospect” provisions in r.13.10(a) of the FCC Rules. In Spencer 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 “no reasonable prospect” 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 “no reasonable prospect” 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; and
f)the power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ.
In relation to the direct equivalent of s.17A of the FCCA Act in s.31A of the FC Act, the Federal Court has observed, in relation to the phrase “no reasonable prospect of success”, that:
a)a court must be satisfied that the applicant has 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 Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014 at [15] per Judge Lucev (and the various Federal Court authorities there cited).
The Court also observes that:
a)FJM Property, in making the summary dismissal application, bears the onus of persuading the Court to make such an order: 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 can consider matters outside the pleadings:Singh v Owners Strata Plan No 11723 (No.3) [2012] FCA 1121; (2012) 207 FCR 390 at [39] per Griffiths J; and
c)where an applicant neglects to identify any valid claim at all in the materials put 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.
On the evidence before the Court, FJM Property is not the owner occupier, operator or controller, and has no other interest in the premises in relation to which the Claim is made by Mr Ellis. It follows that the Claim has no reasonable prospect of success as against FJM Property as FJM Property has no interest in the premises the subject of the Claim, and nor does it have any interest in the business of The Garden, and therefore Mr Ellis cannot found a claim for disability discrimination relating to access to premises under s.23 of the DD Act, or the provision of goods, services or the making available of facilities under s.24 of the DD Act, against FJM Property when FJM Property does not do or control any of those things on the relevant premises. There is, in the circumstances, no valid claim able to be made against FJM Property in relation to whatever it is that Mr Ellis alleges occurred at the premises: Dowling at [30] per Reeves J.
It follows from the above that it is unnecessary for the Court to consider:
a)whether the Originating Application otherwise establishes a reasonably arguable case of unlawful discrimination under ss.23 and 24 of the DD Act against whomever the owners, occupier, or operator of The Garden and the Leederville Hotel might be (and bearing in mind that the Originating Application is not, in any event, 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 at [17] and [24] per Rares J; Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120 at [6] per Lucev FM);
b)whether the Claim was vexatious or frivolous;
c)whether any of the remedies sought by way of the orders sought in the Originating Application might be efficacious;
d)whether the premises comply with the relevant disability standards; and
e)whether another party might be substituted for FJM Property (a matter adverted to by FJM Property in its submissions at hearing), no such application having been made by Mr Ellis.
In relation to:
a)what was allegedly said to Mr Ellis by an unidentified person when he rang Pent about Pent being the “same” as FJM Property, that submission (no evidence was put on the point) simply cannot be sustained against the weight of evidence in the First and Second Jones Affidavits, even for the purposes of seeking to rebut a no reasonable prospect of success submission;
b)what is said on the Website in relation to FJM Property is plainly incorrect and possibly misleading, but it is not sufficient to rebut or warrant the rejection of FJM Property’s submission as to the Claim having no reasonable prospect of success, when regard is had to the evidence in the First and Second Jones Affidavits; and
c)Mr Ellis’ argument that the point as to whether FJM Property was the correct respondent was not raised with or taken by FJM Property before the AHRC would, if true, be immaterial, but, in any event, there is evidence that this point was raised with the AHRC by FJM Property prior to the AHRC issuing the Notice of Termination: Second Jones Affidavit at [20].
In all of the above circumstances, it follows that the Application in a Case has been made out, and the Originating Application has no reasonable prospect of success, because it raises no valid claim against FJM Property: Dowling at [30] per Reeves J, and must therefore be dismissed.
Conclusion and orders
The Court has concluded that the Originating Application has no reasonable prospect of success, and, in those circumstances the Originating Application must be dismissed under s.17A(2) of the FCCA Act and r.13.10(a) of the FCC Rules. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 8 July 2019
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