Ellis v Green Tower Pty Ltd Trustee for the Green Tower Trust (Trading as Hopscotch Garden Centre and Tearooms)

The applicant, Mr Ellis, brought proceedings against Green Tower Pty Ltd, the trustee for the Green Tower Trust trading as Hopscotch Garden Centre and Tearooms, alleging disability discrimination in contravention of the *Disability Discrimination Act 1992* (Cth). Mr Ellis sought to have his application, which had been dismissed for non-appearance, reinstated. The primary issue before the court was whether Mr Ellis had an adequate reason for his non-appearance at the scheduled hearing and whether the court should exercise its discretion to set aside the dismissal.

The court was required to determine whether Mr Ellis's failure to appear constituted an adequate reason for the dismissal of his application. This involved considering whether his disability, and the arrangements (or lack thereof) for his appearance, provided a sufficient excuse. The court also had to assess whether the substantive application had an arguable merit, the extent of any delay in seeking to set aside the dismissal, and whether the respondent would suffer prejudice if the dismissal were set aside.

In reaching its decision, the court considered the principles governing the setting aside of dismissals for non-appearance, particularly in circumstances involving a party with a disability. The court noted that while a party is generally expected to appear in person or by a legal representative, allowances can be made for individuals with disabilities who may require alternative arrangements, such as appearing via video or audio link. The court found that Mr Ellis had provided an adequate reason for his non-appearance, as he had made reasonable efforts to attend but was prevented by circumstances related to his disability and the available technology. Furthermore, the court was satisfied that the substantive application had an arguable merit and that the respondent would not suffer undue prejudice if the dismissal were set aside.

Consequently, the court ordered that the dismissal of Mr Ellis's application be set aside, and the proceedings be reinstated. The question of costs was reserved.