Ellis v Green Tower Pty Ltd Trustee for the Green Tower Trust (Trading as Hopscotch Garden Centre and Tearooms)
[2017] FCCA 1390
•22 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v GREEN TOWER PTY LTD TRUSTEE FOR THE GREEN TOWER TRUST (TRADING AS HOPSCOTCH GARDEN CENTRE AND TEAROOMS) | [2017] FCCA 1390 |
| Catchwords: PRACTICE AND PROCEDURE – Application to set aside dismissal for non-appearance – appearance other than in person by persons with a disability – whether adequate reason for non-appearance – whether appearance in person or by video or audio link – whether delay – whether prejudice – whether costs not recoverable – whether substantive application has arguable merit. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), s.46PR Disability Discrimination Act 1992 (Cth), ss.4(1), 5, 6 Evidence Act 1995 (Cth), s.131(1) Federal Circuit Court of Australia Act 1999 (Cth), s.67 |
| Cases cited: Alvaro v Legalwest Pty Ltd [2012] FMCA 1088 Blackrock Asset Management Australia Services Ltd v Waked (No 2) [2011] FCA 479 Mathews v MacDonnell [2011] FCA 825 Mathews v State of Queensland [2014] FCA 574 Wint v Medimobile Pty Ltd [2016] FCCA 102 |
| Applicant: | TROY ELLIS |
| Respondent: | GREEN TOWER PTY LTD TRUSTEE FOR THE GREEN TOWER TRUST (TRADING AS HOPSCOTCH GARDEN CENTRE AND TEAROOMS) |
| File Number: | PEG 7 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 17 February 2017 |
| Date of Last Submission: | 17 February 2017 |
| Delivered at: | Perth |
| Delivered on: | 22 June 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Ms F Vernon |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the applicant’s application in a case filed 30 May 2016 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 7 of 2015
| TROY ELLIS |
Applicant
And
| GREEN TOWER PTY LTD TRUSTEE FOR THE GREEN TOWER TRUST (TRADING AS HOPSCOTCH GARDEN CENTRE AND TEAROOMS) |
Respondent
REASONS FOR JUDGMENT
Application in a Case to set aside an earlier order
By an Application in a Case filed on 30 May 2016 the applicant, Troy Ellis (“Mr Ellis”) seeks to set aside, pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), an order made by this Court on 12 May 2016 dismissing with costs the Originating Application alleging unlawful discrimination on the basis of disability contrary to the Disability Discrimination Act 1992 (Cth) (“DD Act”) by reason of Mr Ellis’ non-appearance (“Dismissal Order”).
The Application in a Case to set aside the Dismissal Order is opposed by the respondent, Green Tower Pty Ltd Trustee for the Green Tower Trust (Trading as Hopscotch Garden Centre and Tearooms) (“Green Tower”).
The Dismissal Order
The Dismissal Order was in the following terms:
1. The application be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
2. The applicant pay the respondents costs in the sum of $22378 by 12 June 2016.
The hearing on 12 May 2016
What occurred at the hearing on 12 May 2016 (“May 2016 Hearing”) is reflected in the following extract from the Transcript at pages 2-3:
HIS HONOUR: Yes. I note there’s no appearance for the applicant. I will have the matter called outside in a moment. For the respondent?
MS F. VERNON: If it please your Honour, Ms Vernon for the respondent.
HIS HONOUR: Yes, thank you, Ms Vernon. Could we have the matter called outside, please. Yes. I note there’s no appearance by the applicant. I also note that in the court’s orders of 23 December 2015 there was a specific provision made for any application in the case to attend and give evidence at the hearing today by telephone, to be supported by affidavit including any medical or expert reports which were to be filed under cover of affidavit and to be filed and served by 23 January 2016. No such application was made. No affidavits of that type had subsequently been filed. When I say of that type I mean medical or expert reports. Ms Vernon, what do you seek to be done in the circumstances?
MS VERNON: Your Honour, my instructors had some communication with the applicant on 22 April, when the outline of submissions was served on Mr Ellis.
HIS HONOUR: Yes, I note Mr Ellis has also filed an outline of submissions on 4 May, it seems.
MS VERNON: Yes. Which would indicate that he received our submissions, because he refers to those submissions in his correspondence – in his submissions. At that time, we drew to his attention [t]he fact that we had understood that at a recent hearing before your Honour, Mr Ellis had not attended, and that matter had been adjourned by reason of that non-attendance. And my instructors advised him that it was appropriate to inform him that they had instructions to oppose an application for adjournment unless we were satisfied there was good reason for the application. Now, obviously, there hasn’t been an application for an adjournment. And - - -
HIS HONOUR: Yes. If the court dismisses it pursuant to rule 13.03C(1)(c) for non-appearance, Mr Ellis has the capacity to apply to have that order dismissing it set aside, pursuant to rule 16.05. But that obviously will then require him to file any necessary affidavit material and will require the court as part of their exercise to look at the merits, as opposed to actually determine the merits. And so, is there any reason why I simply shouldn’t dismiss it pursuant – for non-appearance and consider an application for costs?
MS VERNON: No, your Honour. I would submit that it ought to be dismissed, given that Mr Ellis has had knowledge – clearly knows of the hearing and hasn’t proffered any reason for his non-attendance.
HIS HONOUR: Yes. And I do note – I think I can take judicial notice of the fact that there are at least a couple of instances of cases before the court involving Mr Ellis where there are otherwise matters to be determined as to whether or not, or how it is, that he proposes to attend the hearing, the matter. So – and a specific order was made in this case with respect to that.
The Court then went on to make the Dismissal Order in the terms set out at [3] above.
The orders of 23 December 2015
The Court notes that the orders of 23 December 2015 referred to by the Court in the Transcript of the May 2016 hearing included an order to the following effect:
6. Any application in a case to attend and give evidence at the hearing by telephone be supported by affidavit including any medical or experts reports are to be under cover of affidavit and be filed and served by 23 January 2016.
(“December 2015 Order”).
The Court observes that Mr Ellis did not file:
a)an application in a case; or
b)any medical or expert’s reports, under cover of an affidavit or otherwise,
pursuant to the December 2015 Order.
Other materials before the Court
In relation to materials filed with the Court the Court observes that:
a)the Originating Application alleges no more than that Mr Ellis suffered disability discrimination as a result of a “fall suffered”, and that in relation to a question concerning special requirements Mr Ellis indicated that he “cannot get up and down easily or get up stairs”: see Originating Application Part B, Item 3, Part A, Item 1 and Part C, Item 12;
b)in the Statement of Claim filed on 6 May 2015 Mr Ellis complains of a slippery gravel driveway and inclined paths with rock grooves and unstable surfaces at Green Tower’s premises, and indicates that he fell immediately, and that there was no ramp to the tearooms on Green Tower’s premises, where he says he fell again, but does not disclose the nature of his disability, or its extent, or how it relates to the discrimination alleged: Statement of Claim at [2], [3], [5] and [7];
c)Mr Ellis also filed an affidavit on 6 May 2015 dated 28 April 2015 (“Mr Ellis’ April 2015 Affidavit”), but beyond asserting that:
i)he has “suffered physical and mental damage to a higher degree than able bodied people” and that he relies on businesses to have “disability access … with no fall and trip risks”: at [1];
ii)he had a “catastrophic fall”: at [2]; and
iii)his health had been “severely damaged by immense emotional stress, physical danger and injuries”: at [6],
there is no disclosure of the nature of his disability, its extent or how it relates to the discrimination allegedly suffered;
d)Mr Ellis filed a further affidavit on 17 January 2016 made on the same day (“Mr Ellis’ January 2016 Affidavit”), but insofar as any disability or injury is concerned in relation to the incident the subject of the litigation, it says no more than is said in the Statement of Claim or Mr Ellis’ April 2015 Affidavit; and
e)on 3 May 2016 Mr Ellis filed an outline of submissions (“May 2016 Submissions”) which was 37 pages long inclusive of various annexures, and in which he complains of there being gravel paths at the entrance to Green Tower’s premises where he fell thereby causing him injury, and at least by inference, suggesting that there was no ramp to access the tearooms at the premises, but otherwise descends into paragraph after paragraph, and often page after page, of irrelevant and sometimes scandalous submissions, much of it repeated, repetitive and inadmissible, with no relationship at all to the facts and matters in issue in the proceedings, and no indication as to the nature of Mr Ellis’ disability, or its extent, or how it relates to the discrimination alleged, or that Mr Ellis did not intend to appear at the May 2016 Hearing in person.
Green Tower filed an affidavit from a director, John Norman Brereton affirmed 23 February 2016 (“Mr John Brereton’s February 2016 Affidavit”) in which he said that:
a)he was a director of Green Tower;
b)he was doing what he normally did at the premises on Sundays, that is undertaking food preparation in the tearooms: at [14];
c)he was not aware of any incident occurring at Green Tower’s premises on that day, and that he would have been aware of anything that had occurred at the entrance to the tearooms: at [15]; and
d)he is a registered nurse, and was a paramedic for 12 years, and would have offered assistance had he been aware that anyone needed it: at [16].
An affidavit was also affirmed by Christopher John Brereton on 23 February 2016 (“Mr Christopher Brereton’s February 2016 Affidavit”) in which he said that:
a)he was a director of Green Tower;
b)he was working on the day in question together with two casual staff members and Mr John Brereton: at [10];
c)there was a disabled parking bay at a distance of about 35 metres from which the tearooms could be accessed: at [11]-[12];
d)the paths in question consisted of compacted and firm gravel, and were regularly inspected and cleared, including on weekends and when necessary the paths were swept or a leaf blower was used to clear the paths of honky nuts and leaves: at [13]-[14];
e)a person working in the tearooms could see a customer standing at the main entrance to the tearooms or at the side door to the tearooms: at [25];
f)he was working in the tearooms operating the coffee machine on the day in question, with the coffee machine being around 2.5 metres from the entrance: at [29];
g)he was not aware of any incident occurring at the tearooms on the day in question, and says that he would have seen anything that had occurred at the entrance to the tearooms, but would not have been aware of anything happening in or near to the carpark unless he was told about it or noticed it whilst serving customers: at [30];
h)no record of any incident was recorded in an incident book kept in the tearooms for the day in question: at [31];
i)he had a senior first aid certificate and would have assisted anyone who required assistance had he been aware of any incident or difficulty with access: at [32]; and
j)he is aware of and mindful of legislative requirements with respect to access to Green Tower’s premises by reason of his having occupied a management role with the Disability Services Commission with responsibility for managing group homes and hostels for people with disabilities for five years until 2001, and having been the manager of community services for a local authority for the previous 14 ½ years: at [38].
Annexed to Mr Christopher Brereton’s February 2016 Affidavit were copies of plans of Green Tower’s premises, pictures of the paths on the premises, and pictures of the tearooms.
Affidavit in support of the Application in a Case
Mr Ellis filed an affidavit affirmed 30 May 2016 (“Mr Ellis’ May 2016 Affidavit”) in support of the Application in a Case.
The content of Mr Ellis’ May 2016 Affidavit is identical to the content of the Application in a Case under the heading “Orders sought”. Excluding references to the orders sought to set aside the Dismissal Order the material filed by Mr Ellis is a mix of fact and submission, in the following terms:
1.… I was not present in FEDERAL COURT, as I was in RPH ED, from 7:00 AM until 12: NOON, having been taken INTO RPH ED by SAINT JOHN AMBULANCE.
2.….
3.I have enclosed the RPH ED document signed by the treating RPH DOCTOR about my ADMISSION and DISCHARGE.
4.My GP DOCTOR GORDON MILNE of VICTORIA MEDICAL GROUP has viewed and taken note of my RPH ED ADMISSION and DISCHARGE documents and he is well aware of this other recurring and debilitating health crisis that I have suffered for over 7 years that he has been my GP.
5.I have also previously stated to the PERTH FEDERAL COURT that all COURT HEARINGS and all MEDIATIONS absolutely must be via AUDIO LINK to [mobile number], as my many DISABLED HEALTH ISSUES are far too poor for me to come into the courts.
6.I did not receive a missed call from the PERTH FEDERAL COURT for an AUDIO LINK regardless and that is alarming to say the least.
7.It must not be considered my fault if AUDIO LINK is not established to contact me regarding the future GREENTOWER PTY LTD case or any other future cases for that matter.
(Transcribed from the original without amendment).
The Court notes that the “RPH ED document” appears to be a letter from the Emergency Department at Royal Perth Hospital (“RPH ED Letter”) which was annexed to the Application in a Case and not to Mr Ellis’ May 2016 Affidavit. Having regard to the terms of s.46PR of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) nothing turns on that, and the Court considers it can have regard to the RPH ED Letter as if it were an annexure to Mr Ellis’ May 2016 Affidavit. Green Tower appears to have treated it in that manner in its submissions referred to below.
The text of the RPH ED Letter, which appears to be written to Mr Ellis’ general practitioner, Dr Milne, is as follows:
Dear GORDON MILNE,
TROY ELLIS presented to the Emergency Department at ROYAL PERTH HOSPITAL on the 12 MAY 2016 at 07:13. The presenting problem was PAIN – ABDOMINAL – RIGHT LOWER QUADRANT
RAD TO BACK STATES STARTED AT 0500 THIS AM STATES HAS HX OF NON OP KIDNEY STONES SJA HAVE GIVEN NO ANALGESICS.
The diagnosis was +PAEDIATRIC - +SURGICAL-ABDOMINAL PAIN, RECURRENT
46 year old gentleman BIBA with recurrent left sided abdominal and flank pain, history of multiple previous presentations presumed likely to renal colic. Previous bloods & scans NAD. Called SJA this morning with left sided abdominal / flank pain, sudden onset, sharp, intermittent, radiating to the back. 5-7/10. No associated nausea vomiting abdominal symptoms or urinary symptoms. BG history chronic pain in similar region and of character with scans NAD with GP but told likely renal stones. BG historey Muscular Dystrophy – walks with stick, DSP, multiple falls, nil recently
Depression – on Lexapro, dose stable
NKDA
Denies any drugs or alocholDenies smoking status
OE Obs stable afebrile Abdo SNT BS heard Chest clear IISD dual no murmurs no renal angle tenderness
FBC UEC LFT CRP – all NAD
CRp 1.4 FBC 154 8.49 284 ALT 106 GGT 83 (old – in Oct 2015) Lipase 43 UEC 139 3.7 23 5.9 42
Oriented to TPP
No evidence FTD
Remained well in ED
No recurrence of Pain
UA – NADNo analgesia required during stay
Reassured
Discharged home
Paracetamol PRN as requiredIndomethacin if recurrent attacks discussed.
Outlines of submissions
By order of the Court dated 16 June 2016 both Mr Ellis and Green Tower were ordered to file an outline of submissions in relation to the Application in a Case and did so on 1 August 2016 and 13 December 2016 respectively (“Mr Ellis’ Submissions” and “Green Tower’s Submissions” respectively).
Mr Ellis’ Submissions
Mr Ellis’ Submissions do not address any of the relevant criteria with respect to an application to set aside an earlier order of this Court: see the criteria set out at [24] below. Rather they:
a)assert that a claim is being brought in the Magistrates Court of Western Australia with respect to injuries alleged to have been suffered at the time of the incident at Green Tower’s premises;
b)raise matters arising out of mediation in this Court to which the Court can have no regard: Evidence Act 1995 (Cth), s.131(1);
c)direct abuse toward a director of Green Tower and its lawyers;
d)complain that Green Tower is prepared to spend money on legal fees, but is not prepared to resolve the matter; and
e)allege that the paths at Green Tower’s premises were dangerous, and that there were no safe ramps at the time of the incident.
It is only [17(e)] above which might have some relevance to the criteria to be considered in an application to set aside earlier orders.
At hearing Mr Ellis’ oral submissions commenced with a misconception: he sought to assert that events in December 2016 related to his health had caused him to fail to attend the May 2016 Hearing, and that he had no idea why he had not attended: Transcript, page 3.
When reminded that on the day of the May 2016 Hearing his material asserted that he went to Royal Perth Hospital early in the morning: see Application in a Case and Mr Ellis’ May 2016 Affidavit, Mr Ellis asserted that he did not attend the May 2016 Hearing by reason of his health on the day of the May 2016 Hearing: Transcript, page 4. Reminded that he had been obliged to file medical evidence if he sought an audio-link hearing for the May 2016 Hearing, and that he had not done so, and nor had he filed any medical evidence as to the nature and extent of his disability, Mr Ellis asserted that:
a)he had “never been asked specifically to file a long medical report which costs me money”: Transcript, page 6;
b)the fact that he was on a disability pension proved that he had a disability: Transcript, page 6;
c)it was unfair to put him to the cost of providing medical evidence to the Court of his disability: Transcript, pages 6-7; and
d)he did not think he could possibly provide the necessary evidence and that he thought that it was unfair: Transcript, page 7, but then indicated that he was willing to provide the information: Transcript, page 8, but considered that it was unfair that he was being put through this process, and that it would cost him money, and that his general practitioner was not prepared to do it unless the Court said that it had to be done and that he would then be obliged to do it: Transcript, pages 8-9.
Green Tower’s Submissions
Green Tower’s Submissions:
a)refer to the criteria in Wint v Medimobile Pty Ltd [2016] FCCA 102 at [6] per Judge Jarrett (“Medimobile”) with respect to the usual criteria for the exercise of the power to make an order under r.16.05(2)(a) of the FCC Rules;
b)assert that the RPH ED Letter does not disclose any condition of such severity that it warranted Mr Ellis’ non-attendance at Court for the May 2016 Hearing; and
c)refer to the December 2015 Order, and Mr Ellis’ failure to comply with it, as evidence that Mr Ellis had no intention of attending the May 2016 Hearing in person,
and therefore assert that no reasonable explanation for Mr Ellis’ failure to attend the May 2016 Hearing has been established.
Green Tower’s Submissions go on to assert that:
a)by reason of the lack of evidence, in particular the lack of evidence of the nature of the disability suffered by Mr Ellis, that there was no prospect, or no reasonable prospect, of Mr Ellis proving his claim for unlawful discrimination under the DD Act had the May 2016 Hearing proceeded;
b)its evidence was to the effect that access to the relevant parts of the premises was reasonable;
c)it suffers prejudice by reason of delay if the Dismissal Order is set aside and the matter is reinstated to the lists; and
d)Mr Ellis has shown no capacity to pay a costs order for Green Tower’s costs thrown away by reason of his failure to attend the May 2016 Hearing.
Consideration
Basis on which earlier orders might be set aside
Rule 16.05(2)(a) of the FCC Rules provides as follows:
(2) The Court may vary or set aside its judgment or order after it has been entered if:
(a) the order is made in the absence of a party; or …
Rule 16.05(2)(a) of the FCC Rules has been the subject of detailed judicial consideration by this Court, and it appears that the factors which this Court must have regard to when determining whether to set aside orders previously made dismissing an application by reason of an applicant’s non-appearance are that:
a)there is an adequate reason for the non-appearance;
b)there is no delay in making the application to set aside;
c)whether the party in whose favour orders had been made would be prejudiced by a new hearing in any respect which could not be adequately compensated by a suitable award of costs or the giving of security; and
d)there is an arguable case on the merits of the substantive application.
See Singh v Official Trustee in Bankruptcy [2008] FMCA 521 at [19] per Lucev FM; Postorino v Track ‘N’ Find [2012] FMCA 342 at [37]-[46] per Barnes FM; Alvaro v Legalwest Pty Ltd [2012] FMCA 1088 at [9] per Lindsay FM; Medimobile at [6]-[7] per Judge Jarrett; Verdura v Cooper Real Estate Pty Ltd [2016] FCCA 1239 at [16] per Judge O’Sullivan. See also 3D Funtimes Ltd v Intellec Development Group Pty Ltd(No 2) [2011] FCA 407 at [19] per Siopis J; Sampson (Trustee) v Taboada [2017] FCA 79 at [11] per Burley J.
Adequate reason for non-appearance
Before dealing directly with the circumstances of Mr Ellis’ non-appearance at the May 2016 Hearing, it is necessary to deal with the principles concerning appearances other than in person in disability discrimination cases, and generally, as explained by the Federal Court and this Court in previous cases.
Disability discrimination cases involving applications to appear other than in person
In Mathews v MacDonnell [2011] FCA 825 (“MacDonnell”) the Federal Court of Australia was dealing with an application for default judgment in relation to a human rights application where the applicant alleged a disability. The claim form revealed significant disabilities alleged by the applicant, including severe brain damage, a right hand disability which affected the applicant’s ability to write, and tenosynovitis which gave the applicant a lifting and carrying disability, and plagiocephaly. Mr Mathews alleged that the onus was on the Court to ensure that he received due process and a fair hearing: MacDonnell at [1] per Logan J. Mr Mathews asserted a right to appear by telephone, and did not appear at a first directions hearing at which procedural directions were made, including allowing the respondents to make application for default judgment, and requiring Mr Mathews to provide sworn medical evidence in respect of his alleged disabilities: MacDonnell at [2]-[7] per Logan J.
In relation to Mr Mathews’ appearance by telephone the Federal Court observed in MacDonnell at [4] per Logan J, that:
4. Mr Mathews failed to appear at the first directions hearing in this matter. He had asserted a right to appear by telephone. He was not given any permission, exceptionally, to appear by telephone. In the ordinary course of events, in a case such as this, appearances would be made in person. Particularly where there is a litigant in person, it is sometimes the case, and the present, I apprehend, to be one, that the seriousness of a judicial proceeding and the responsibilities of acting accordingly are only brought home by personal appearance. The remoteness which can attend a telephone appearance can fail to bring home adequately to a litigant in person, the formality of a judicial proceeding, and the need to behave accordingly.
Mr Mathews did not file sworn medical evidence in relation to his alleged disabilities: MacDonnell at [6] per Logan J. Apropos of that failure the Federal Court observed in MacDonnell at [6]-[7] per Logan J as follows:
6 Mr Mathews was also separately put on notice that he should provide sworn medical evidence for the consideration of the Court in respect of his condition. No such evidence has been provided by him. Further, he has failed to appear today. Evident from the evidence read on behalf of the first respondent is an exchange of email correspondence between the Australian Government Solicitor, who acts for the first respondent, and Mr Mathews. In that exchange, Mr Mathews makes assertions, not all of which are cast in temperate language, in respect of the processes of executive and the judicial branches of government of this country. The noteworthy feature, though, of the exchange is, as I have already observed, an absence of sworn evidence from him as to his disabilities.
7 In those circumstances, there is nothing which would indicate, in terms of evidence, why it is that Mr Mathews is not able to attend in person. Further, looking at the statement which he makes at item 6, one might apprehend that any such evidence may well call into question whether he is at all able to have acted for himself in the filing of the application, given his reference to brain damage. I am prepared though, to assume in his favour that that is not the case, but rather, he has chosen not to file any medical evidence and chosen, for his own reasons, not to appear. That being the case, the question is what to do, having regard to the events of default which have occurred.
Mr Mathews’ application was dismissed on the basis of his defaults in failing to comply with orders of the Court, with the Federal Court further observing in MacDonnell at [8] per Logan J, as follows:
8 … Mr Mathews is not able to conduct the entirety of this proceeding remotely, as it would seem he would wish. He has provided no evidence which would justify some sort of exceptional arrangement being made. At present, the presence of the case on the court list is therefore an embarrassment.
Mr Mathews also featured in Mathews v State of Queensland & Anor (No 2) [2014] FCCA 1658 (“State of Queensland (No 2)”). In that case he failed to appear at directions and interlocutory hearings in this Court in human rights proceedings where he alleged discrimination on the basis of his disability. Mr Mathews did not file any affidavits or other evidence of his disability and was unwilling to appear before the Court in person. The disabilities alleged were similar to those alleged in MacDonnell: State of Queensland (No 2) at [2] per Judge Jarrett. Various applications were made by Mr Mathews in relation to leave to appear by telephone in the proceedings and to have the proceedings dealt with on the papers: State of Queensland (No 2) at [3]-[6] per Judge Jarrett. The Court observed that permission to appear by telephone was the exception rather than the rule, citing MacDonnell: State of Queensland (No 2) at [5] per Judge Jarrett. The Court further said in State of Queensland (No 2) at [7]-[10] per Judge Jarrett that:
7. The matter came before me most recently on 16 June. There was no appearance on that occasion by the applicant. There was an appearance by each of the other parties including Clark’s. I adjourned the application to today. I ordered that the applicant appear personally today and I ordered that the costs of all parties be in the cause.
8. There is no sworn medical evidence before me which would suggest that it is appropriate for leave to appear by telephone be granted to the applicant or that for some other reason the applicant be excused from personal attendance.
9. It was said in support of his application for leave to appear by telephone, in submissions and correspondence, to which I referred on the last occasion, that the applicant does not acquit himself well in court. His disabilities, he says, means that he looks like a “dithering idiot” when he presents his case orally and, for that reason, telephone appearance was preferable. But I do not understand that. Whether one appears personally or by telephone, one has to make submissions and the applicant’s disabilities will either prevent him from making submissions or they will not. Perhaps that is the reason for the application now to have the matters dealt with on the papers but I really do not know.
10. In any event, the applicant has effectively deprived the court of the opportunity of assessing for itself whether he truly is incapable of orally presenting his own case as he suggests or whether it is simply a refusal to come to court.
The Court also observed that Mr Mathews had forwarded some submissions by email to the presiding Judge’s Associate, but the Court paid no regard to those “for to do so would simply be to determine the application in a way which Mr Mathews has asked for it to be determined without first securing an order that it be so determined”: State of Queensland (No 2) at [14] per Judge Jarrett.
Mr Mathews’ application was dismissed for non-appearance pursuant to r.13.03C(1)(c) of the FCC Rules: State of Queensland (No 2) at [15] per Judge Jarrett.
From the foregoing it is evident that in disability discrimination cases before this Court:
a)the primary position is that an applicant is required to appear in person, even where they have a disability; and
b)an appearance, other than in person, must be justified, and where the appearance other than in person is sought to be based upon the applicant’s disability, there must be sworn medical evidence as to the existence of the disability and the reasons why the disability precludes the applicant from appearing in person.
Applications to appear other than in person generally
In Picos v HealthEngine Pty Ltd & Anor [2014] FCCA 640 (“Picos”) this Court had before it an application to appear by video-link from Sydney by an applicant who had moved to Sydney from Perth during the course of the proceedings, and who had initially indicated that she would appear at the hearing in person, but upon becoming “unwell” requested a video-link hearing between Sydney and Perth: Picos at [11]-[12] per Judge Lucev. Medical evidence sought to be relied upon by Ms Picos was rejected because it did not indicate that she was too unwell to travel: Picos at [56] per Judge Lucev, and because that evidence was a WorkCover Certificate, which was a proforma certificate signed but not bearing the name nor occupation nor qualifications of the signatory, and which the Court did not accept as medical evidence or the evidence of a medical practitioner: Picos at [58] per Judge Lucev. Nor did the Court accept that the WorkCover Certificate addressed the relevant issues for which it was relied upon, namely whether Ms Picos was fit to attend and participate in a five day hearing, and whether she was fit to travel to Perth: Picos at [58] per Judge Lucev.
The Court also notes that in Picos the Court relied upon the fact that there would be cross-examination as to credit of significant witnesses as being a reason why a video-link hearing ought not be permitted, and that a video-link would in fact be a significant disadvantage in the determination of credit, demeanour and significant competing factual issues: Picos at [64]-[68] per Judge Lucev.
In Medimobile a fair work proceeding in this Court instituted by a Ms Wint had been dismissed pursuant to r.13.03C(1)(c) of the FCC Rules when Ms Wint did not appear on the first court date: Medimobile at [1] per Judge Jarrett. Subsequently, Ms Wint applied to set aside the dismissal order.
In Medimobile Ms Wint did not file any factual material to be relied upon in the set-aside application, and sought that her application be dealt with by way of a letter that she forwarded to the Court, in which she said that she had written to the Court before the first court date seeking that her application be by “e courtroom”, or alternatively by phone: Medimobile at [9]-[10] and [12] per Judge Jarrett. The Court noted that “e courtroom” was only used for bankruptcy matters, and there was advice to that effect between the Registry and Ms Wint, but that it appeared that she was unwilling to accept the Registry’s advice in that regard: Medimobile at [12] per Judge Jarrett. The Court then went on to observe at [13]-[14] per Judge Jarrett as follows:
13. The letter of 19 April, 2015 also contains an alternative proposition that Ms Wint will appear by telephone. It is not couched in the form of a request or application.
14. The letter of 19 April, 2015 was not before me on 20 April, 2015. In any event if it had been before me, I would have rejected what might be construed as the two applications contained within it because:
a. this Court does not utilise eCourtroom (whatever that might be); and
b. the application to appear by audio link was not made in a proper or timely way on notice to the respondent.
The Court, after referring to the discretionary nature of the power to permit audio links contained in s.67 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”), and having referred to MacDonnell at [4] per Logan J (see [27] above) observed as follows:
18. … , Ms Wint’s letter seems to have assumed an entitlement to appear in the proceedings by a means of her choosing. Appearance in any way other than by way of personal attendance is an indulgence, not an entitlement.
19. Moreover, there was no evidence to support Ms Wint’s “application” to appear by audio link. There are assertions in her letter, but no evidence.
20. It is generally considered necessary for an applicant to demonstrate that if the earlier order was set aside and the proceedings permitted to continue, the applicant has material arguments that might reasonably lead to an order being made that is different to that which is sought to be set aside. That generally requires evidence as to the merits of the application. There is no such evidence before me.
Medimobile at [18]-[20] per Judge Jarrett.
Ms Wint’s application to have the earlier order set aside was dismissed: Medimobile at [28] per Judge Jarrett.
In a series of judgments of the Federal Court and the Full Court of the Federal Court the difficulties inherent in cross-examination of a witness appearing by video-link have been adverted to: see Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; (2009) 181 FCR 152 at [78] per Buchanan J (“Campaign Master (No 3)”), cited with approval in Mulherin v Commissioner of Taxation [2013] FCAFC 115; (2013) 96 ATR 835 at [51] per Edmonds, Griffiths and Pagone JJ, and Commissioner of Taxation v Oswal (No 5) [2015] FCA 1504 at [25]-[33] and [52]-[55] per Gilmour J (“Oswal (No 5)”).
In Oswal (No 5) at [33] per Gilmour J the Federal Court observed that what had been said in Campaign Master (No 3) as to the utility of face-to-face cross-examination has been repeatedly followed in the Federal Court, and that that utility benefits a court particularly where it is required to make credit findings. In Oswal (No 5) at [52] per Gilmour J the Federal Court cited the observation of Giles CJ in Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, New South Wales Supreme Court, Giles CJ, No 50006 of 1996, 11 March 1997) where the Supreme Court of New South Wales said:
Cross-examination may be made more difficult when video evidence is taken because documents have to be transmitted or produced in an unfamiliar manner, because of the delay in voice transmission, or for other reasons and the effectiveness of cross-examination as a weapon in the fight for truth should not be unduly hindered. And in many cases the Court is assisted in fact by observance of what is misleadingly called the demeanour of the witnesses upon which the taking of video evidence may impact.
It is arguable that the Federal Court’s approach remains in favour of the traditional forensic contest between a cross-examiner and a witness undertaken in a hearing in public in a courtroom, rather than via the use of video or audio links, but takes into consideration that there may be cases in which the interests of the parties or a person being cross-examined necessitates that evidence be taken by video or audio link, but that in such cases a case must be made out for such use if it is opposed by an affected party: Campaign Master (No 3) at [78] per Buchanan J; Blackrock Asset Management Australia Services Ltd v Waked (No 2) [2011] FCA 479 at [45]-[46] per Perram J.
The authorities referred to above make it plain that in order to have a video or audio link hearing the case for a video or audio link hearing must be made out by the party applying for the video or audio link hearing, so as to justify the video or audio link hearing being granted by the Court, including by leading evidence as to the basis for the justification for a video or audio link hearing.
Did Mr Ellis have an adequate reason for non-attendance at the May 2016 Hearing?
No leave to appear other than in person was granted to Mr Ellis at any stage in these proceedings. As noted above at [33] the primary position in relation to any hearing in this Court is that an applicant is required to appear in person, even where they have a disability.
The Court notes that although Mr Ellis was admitted to the Emergency Department at Royal Perth Hospital there is nothing to indicate that his health might have precluded him from attending the May 2016 Hearing, if he had made contact with the Court and sought to have the hearing adjourned pending his ultimate discharge from hospital at 12 noon. On the evidence, Mr Ellis made no attempt to contact the Court to indicate that he would not be attending in person, or that he was ill and in hospital. In that regard the RPH ED Letter indicates that Mr Ellis:
a)remained well whilst in the Emergency Department;
b)there was no recurrence of pain whilst he was in the Emergency Department;
c)that he had no associated nausea, vomiting, abdominal symptoms or urinary symptoms whilst in the Emergency Department;
d)no analgesia had been required during his stay in the Emergency Department;
e)that he was discharged home; and
f)had had no falls recently.
There is nothing in the above evidence which would indicate why Mr Ellis could not attend the May 2016 Hearing, or any adjourned hearing of the May 2016 Hearing if an adjournment had been sought to later on the day of that hearing.
Mr Ellis’ oral submission suggesting that he might not have been well enough to pick up the phone or even remember what he was supposed to be doing on the day of the May 2016 Hearing: Transcript at p+ages 8-9, is simply not supported, and indeed is contradicted, by the evidence in the RPH ED Letter.
Ultimately, however, Mr Ellis’ hospitalisation made no difference. He would not have appeared at the May 2016 Hearing in person in any event: his Application in a Case makes it plain that he perceives that he is entitled to appear by audio link, and had no intention of appearing other than by telephone. Mr Ellis’ view is that his appearances in this Court “absolutely must be via AUDIO LINK” to his mobile telephone: Mr Ellis’ Affidavit at [5] (emphasis added). For reasons set out above: see [26]-[33] above, that is not the legal position. Nor is it a position justified by any evidence led by Mr Ellis in these proceedings. Notwithstanding the Court’s December 2015 Order for Mr Ellis to file medical or expert’s reports if he wished to appear other than in person, he did not do so, and nor were any medical or expert’s reports filed for the purposes of justifying his non-attendance at the May 2016 Hearing.
Mr Ellis’ oral submission that because he was on a disability pension that proved that he had a disability cannot be sustained. The mere fact that he is in receipt of a disability pension proves only that fact. Even if the Court were to infer from the fact of his receipt of a disability pension that Mr Ellis had a disability, it still does not prove the nature of the disability, the extent of the disability, or why the disability precludes him from attending Court. Mr Ellis’ further oral submission that, put broadly, it was unfair and costly to him to order that he provide medical evidence to the Court of his disability, is a submission which also cannot be sustained. There is no evidence as to the cost of providing any medical evidence. If, as he seemingly does, Mr Ellis asserts that he cannot attend Court by reason of his disability, and its nature and extent, then he must prove that to be the case, and the only means of proving that is for him to make an appropriate application and to provide sworn medical evidence to the Court in support thereof. Evidence of Mr Ellis’ disability is essential to any assertion that he is unable to attend Court, and that evidence must properly address why it is that by reason of his disability, its nature and extent he is unable to attend Court: see [26]-33] above. It cannot be unfair to require Mr Ellis to prove the matters he asserts. Moreover, it would be unfair to Green Tower not to require him to prove such matters.
Appearances other than in person are not a right but an indulgence granted by the Court in appropriate circumstances: MacDonnell at [8] per Logan J; Medimobile at [18] per Judge Jarrett. Mr Ellis was given the opportunity pursuant to the December 2015 Order to satisfy the Court that, for the purposes of a final hearing, he should be allowed to appear by telephone. Mr Ellis did nothing to put the Court in a position to make such an order. Mr Ellis failed to grasp the opportunity he was given to apply for leave to appear by telephone. Mr Ellis made neither an application in a case nor filed any affidavits to support an application in a case to appear by telephone. In particular, there is no sworn medical evidence as to his disability and its extent, as there must be: MacDonnell at [6] per Logan J; State of Queensland (No 2) at [8] per Judge Jarrett; Picos at [58] per Judge Lucev, if an applicant is to prove a disability the extent or effect of which is to preclude the applicant from appearing before the Court in person. There was, therefore, nothing either by way of application or evidence before the Court at, or more particularly before, the May 2016 Hearing upon which an order for a telephone link hearing for the May 2016 Hearing could be made. Mr Ellis therefore had an opportunity to apply to appear by telephone and failed to do so, and had no right to appear other than in person.
Even if Mr Ellis had applied for an order for a telephone link hearing for the May 2016 Hearing it is unlikely that it would have been granted. It is evident from Mr John Brereton and Mr Chris Brereton’s February 2016 Affidavits that significant issues would have arisen as to:
a)the nature and condition of the paths concerned;
b)the means of access to the tearooms; and
c)the nature of any incident at the entrance to the tearooms.
In the above circumstances, it is evident that significant cross-examination of Mr Ellis and both Mr John and Mr Chris Brereton would have been required. In the course of those cross-examinations it would have been necessary to make reference to the plans and photos. Cross-examination over the telephone in relation to plans and photos of paths and premises would be manifestly difficult, and arguably made more so by the fact that Mr Ellis is self-represented. There was also a significant factual issue to be determined in relation to whether there was in fact, an incident which occurred at the entrance to the tearooms, and also, arguably, on the path leading to the tearooms. Given that there were seemingly opposing factual contentions which were not reconcilable, the credit of the witnesses may have been very important in determining those issues. The combination of the above issues means that it would be unlikely that the Court would have granted leave for Mr Ellis to appear via a telephone link at the May 2016 Hearing, in any event.
In the above circumstances, Mr Ellis did not have an adequate reason for non-attendance at the May 2016 Hearing, and it was therefore almost inevitable that when Mr Ellis was not present at the May 2016 Hearing, the Court would make the Dismissal Order, as it did. Further, Mr Ellis’ hospitalisation did not make any difference because it is evident that he did not intend to appear in person and did not otherwise have leave to appear other than in person.
Delay
There was no significant delay in making the Application in a Case to set aside the Dismissal Order, the Application in a Case being filed 18 days after the issuance of the Dismissal Order. There is, therefore, no delay of a kind which would preclude the grant of the orders sought in the Application in a Case.
Prejudice
The prejudice to be considered is that which might be suffered by the party in whose favour orders have already been made: see [24(c)] above.
In this case, the Court considers that there is prejudice to Green Tower by reason of the following:
a)that whilst Mr Ellis was not delayed in filing the Application in a Case, there would be a prejudice in litigation which was thought to be finalised being reinstituted, and the delay which therefore results in the litigation being resolved; and
b)that there are ongoing costs, and seemingly, on Mr Ellis’s own case, no prospect of Green Tower recovering any costs thrown away by reason of Mr Ellis’ non-attendance at the May 2016 Hearing.
There is, therefore, some prejudice to Green Tower, but that prejudice is not so significant that if Mr Ellis had an adequate reason for non-appearance at the May 2016 Hearing or an arguable case on the merits of the substantive claim to be determined at the May 2016 Hearing, that that prejudice would preclude the grant of the orders sought in the Application in a Case.
Whether arguable case on merits of the substantive claim
In Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 101 ALD 459; [2008] EOC 93-493 (“Gama”) the Full Court of the Federal Court dealt with an appeal from the then Federal Magistrates Court in which complaints of racial and disability discrimination had been upheld. With respect to the disability discrimination claim the majority judgment observed that:
89 Qantas submitted that his Honour failed to consider all of the requisite elements of s 5 of the Disability Discrimination Act with respect to “direct discrimination”. Critical to any claim of disability discrimination was the identification of the disability then said to be the reason for less favourable treatment at the relevant period of time. The conduct found was said to have occurred in 1998 or early 1999. The question was whether Mr Gama had; or previously had, a disability which was the cause of the less favourable treatment at that time. His Honour failed to make any finding that there was a disability in 1998/1999 or that there had previously been a disability that was a cause of the less favourable treatment.
90 It was not in dispute that Mr Gama had suffered a number of different workplace injuries over a long period of time. But there was no attempt on his part to identify a disability which allegedly caused the less favourable treatment. Counsel for Mr Gama submitted that his Honour had found in his decision that Mr Gama hurt his shoulder in a work-related accident in September 1998 and that he had an operation for a bilateral hernia for which workers compensation was paid. The scar bled in January 1999 and he was given restricted duties on 1 February 1999.
91 We are of the opinion, with respect, that Qantas’ complaint about this aspect of his Honour’s reasons is made out. They did not identify the relevant disability nor the particular way in which the remarks constituted less favourable treatment because of the disability. Rather the remarks tend to reflect a belief that Mr Gama had made a claim for workers compensation to which he was not entitled.
92 In our opinion the learned magistrate’s findings of discrimination on the grounds of disability cannot be sustained.
Gama at [89]-[92] per French and Jacobson JJ (with whom Branson J agreed: at [122]).
In Gill v iiNet Limited [2015] FCA 1029 (“Gill”) the applicant was ordered to file a Statement of Claim by a certain date, but did not do so by that date, or at all: Gill at [11] per North J. The applicant had responded by email to the respondent on that date making certain assertions concerning the basis for the legal system in Australia, and adverting briefly to his disability, the events being described by the Federal Court in the following terms:
15 There is a curiosity in the position taken by the applicant. On the one hand, he says that the orders made by the Court are invalid and without jurisdiction; and on the other hand, he seeks a remedy under the very law which he says is invalid. On this subject – that is to say, the claim made under the Disability Discrimination Act – the applicant makes only brief reference to the issue on page 7 of the 10 page document:
There are many disabilities; some definitely cannot cope or adapt to the normal or cheap version of infrastructure the provider chooses to install or make available.
A service or infrastructure is discriminatory if access is not readily available at all times for everybody – for 8 years iinet services I paid for were not available at times I could access without undue and excessive suffering. Only 50% of the access I paid for was available during 18 hours per the day [8am – 2am]; the other 50% was only available during the remaining 6 hours [2am – 8 am]. This is very close to unreasonable for every member of the community, but it was totally discriminatory for myself.
Gill at [15] per North J.
The Federal Court found as follows in Gill at [16]-[18] per North J:
16 The email from the applicant dated 28 August 2015 is not a statement of claim. To the extent that it challenges the establishment of the legal system in Australia, it is quite irrelevant to any issue before the Court. To the extent that it refers to the original disability discrimination claim, it is not comprehensible.
17 The applicant has had three opportunities to articulate a claim. The proceeding has been on foot from October 2014 and it is unjust and unfair to expect that the respondent continue to attend the proceedings in the Court for a claim which is not put forward in a way which either conforms to the requirements of the Rules or makes any sense.
18 The respondent has established that the proceedings should be dismissed, both for the failure of the applicant to comply with the order made on 10 July 2015 to file and serve a statement of claim and because the applicant has failed to prosecute the proceeding with due diligence. Consequently, the proceeding will be dismissed with costs.
Mr Gill applied, out of time, for leave to appeal against the interlocutory decision in Gill: see Gill v iiNet Limited [2016] FCA 1273 (“Gill – Leave to Appeal”).
In Gill – Leave to Appeal the Federal Court set out the passages quoted from Gill above: see [58] and [59] above: Gill – Leave to Appeal at [19] and [24] per Kenny J. In Gill – Leave to Appeal much of the application for leave to appeal dealt with issues of the authority or validity of the Australian legal system which are not relevant to this case. The Federal Court did however find that various emails and their attachments which Mr Gill sought to have treated as constituting a Statement of Claim were to be rejected as not complying with the requirements for a pleading in the Federal Court Rules 2011 (Cth), Part 16, and that there was no proper Statement of Claim sought to be filed with the Federal Court, and therefore Mr Gill had failed to comply with the relevant order requiring him to file a Statement of Claim: Gill – Leave to Appeal at [39] per Kenny J.
In the above context, it is also important to bear in mind that Mr Ellis bears the onus of proof generally: Ferrus v Qantas Airways Ltd [2006] FCA 812; (2006) 155 IR 88 at [48] per Collier J; Vassallo v Jetswan Pty Ltd & Anor [2010] FMCA 708 at [20] per Lloyd-Jones FM (“Jetswan”) (and cases there cited), save where a person against whom indirect discrimination is alleged has to prove that a requirement or condition imposed which must be complied with by the person alleging discrimination is reasonable: DD Act, s.6; Jetswan at [20] per Lloyd-Jones FM (and cases there cited).
In this case, at the time of the May 2016 Hearing there was:
a)no statement nor any evidence as to the disability alleged to be suffered by Mr Ellis, and, therefore, no means of determining whether he suffered from a disability as defined in s.4(1) of the DD Act;
b)no evidence as to how any disability that Mr Ellis suffered related to the discrimination alleged;
c)no statement of whether the discrimination alleged arose under s.5 of the DD Act (as direct discrimination) or s.6 of the DD Act (as indirect discrimination), and consequently no setting out of the less favourable treatment alleged or any alleged comparators (for the purposes of direct discrimination under s.5 of the DD Act), or the facts which constitute a requirement or condition which is not reasonable in the circumstances of the case and which is likely to have the effect of disadvantaging a person with the relevant disability (for the purposes of indirect discrimination under s.6 of the DD Act);
d)no sufficient degree of specificity of the material facts so as to define the issues and inform Green Tower in advance of the case that it may have to meet: Chang v CST Minerals Lady Annie Pty Ltd [2015] FCA 620 at [19]-[21] per Mortimer J; Shurat Hadin, Israel Law Centre v Lynch (No 2) [2014] FCA 413 at [36]-[37] per Robertson J; Gill at [16]-[17] per North J;
e)no medical or allied health professional evidence of a kind required to establish the nature of any disability that Mr Ellis has, or the extent of that disability, and its relationship to the discrimination allegedly suffered: Gama at [89]-[92] per French and Jacobson JJ (for practical examples of the kind of evidence required see the evidence of psychiatric illness alleged to give rise to a phobia preventing a person from sitting examinations in Sklavos v Australasian College of Dermatologists [2016] FCA 179 at [28]-[83] per Jagot J, and in relation to, amongst other things, access to school premises, at [132] (as to the adequacy of toilet facilities); [210] (as to the size of disabled car bays); and [225] (as to the steepness of ramps) per Judge Lucev in Burns v Director-General of the Department of Education (No 2) [2015] FCCA 1769, a case in relation to alleged discrimination against a profoundly disabled child).
In all of the above circumstances, there was no prospect that any order other than to dismiss the application would have been made at the May 2016 Hearing because there was no evidence of Mr Ellis’ disability, the nature of the disability, or the effect of that disability in relation to the circumstances alleged to have occurred in or about Green Tower’s premises, and that was the case whether Mr Ellis attended personally or by phone.
The RPH ED Letter does not assist Mr Ellis. Whilst it does indicate that he has, at least, a history of muscular dystrophy and depression, and assuming that they might be disabilities which Mr Ellis seeks to rely upon, the RPH ED Letter says nothing about the nature of those disabilities, or their effect, relevant to the circumstances alleged to have occurred at Green Tower’s premises 23 months previously (and to be fair to the author, nor could they given that that was not the purpose of the RPH ED Letter).
In all of the above circumstances, Mr Ellis did not have an arguable case on the merits of the substantive claim on the evidence filed for the May 2016 Hearing, and it is inevitable that the application would have been dismissed if the May 2016 Hearing had proceeded. Nothing in the evidence filed in support of the Application in a Case makes any difference to the substance of the evidence as it was before the Court at the time of the May 2016 Hearing, and nothing in it justifies a conclusion that Mr Ellis has an arguable case on the merits of the substantive application.
It follows that Mr Ellis has not established that he has an arguable case on the merits of the substantive application.
Conclusions and orders
The Court is of the view that the factors to be weighed in the exercise of the discretion as to whether to grant the Application in a Case, or not, weigh against the exercise of the discretion. Although there was no delay in filing the Application in a Case, there is some prejudice to Green Tower, and, in the Court’s view, no adequate explanation for Mr Ellis’ failure to attend the May 2016 Hearing. Further and critically, there is no, or no sufficient, evidence of Mr Ellis’ disability, the nature of any disability, or the extent of any disability particularly as it relates to the circumstances alleged to have occurred in or about Green Tower’s premises on 15 June 2014. Mr Ellis had adequate opportunity to submit such evidence: cf Gill at [17] per North J, but did not do so, either in support of the substantive application, or in accordance with the December 2015 orders, or in support of this Application in a Case.
For all of the above reasons the Court is not persuaded to exercise its discretion in Mr Ellis’ favour by granting the Application in a Case. The Court has therefore concluded that the Application in a Case must be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 22 June 2017
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