Ellis v Grill'd Pty Ltd
[2018] FCCA 3294
•20 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v GRILL’D PTY LTD | [2018] FCCA 3294 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a case to dismiss application – application for summary dismissal on the basis of no reasonable prospect of success – test for no reasonable prospect of success – application for dismissal in the Court’s inherent jurisdiction – whether the Court has inherent jurisdiction – whether non-compliance with earlier orders of the Court – tests for dismissal for non-compliance. |
| Legislation: Australia Human Rights Commission Act 1986 (Cth), ss.46PH, 46PO |
| Cases cited: Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 Hollingdale v North Coast Area Health Service [2006] FMCA 5 Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014 King v Australian Pharmaceutical Industries Ltd [2011] FCA 95 Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337 Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081 Vassollo v Jetswan Pty Ltd & Anor [2010] FMCA 708 Federal Civil Litigation Precedents (Looseleaf, LexisNexis Butterworths) |
| Applicant: | TROY ELLIS |
| Respondent: | GRILL’D PTY LTD |
| File Number: | PEG 360 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 9 March 2016 |
| Date of Last Submission: | 9 March 2016 |
| Delivered at: | Perth |
| Delivered on: | 20 November 2018 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr T Clavey |
| Solicitors for the Respondent: | Jarman McKenna |
ORDERS
The Court orders that:
(a)the respondent’s Application in a Case filed 9 October 2015 be dismissed;
(b)the applicant’s Statement of Claim filed 21 February 2015 be struck out in its entirety pursuant to r.16.21(1)(a), (c), (d) and (e) of the Federal Court Rules 2011 (Cth) applied pursuant to r.1.05(2) of the Federal Circuit Court Rules 2001 (Cth);
(c)the applicant have leave to file and serve a Further Statement of Claim by 20 December 2018; and
(d)the proceedings are otherwise adjourned to a further directions hearing at 4.00pm on 24 January 2019.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 360 of 2014
| TROY ELLIS |
Applicant
And
| GRILL’D PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction and Application in a Case
The respondent, Grill’d Pty Ltd (“Grill’d”) has filed an application in a case seeking that the claim of the applicant, Mr Troy Ellis (“Mr Ellis”), against Grill’d be dismissed, with Grill’d arguing that the dismissal order should be made pursuant to r.13.03B(1) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), or alternatively r.13.10 of the FCC Rules (“Dismissal Application”). The application filed by Mr Ellis alleges that Grill’d discriminated against Mr Ellis in breach of the Disability Discrimination Act 1992 (Cth) (“DD Act”) (“Application”).
The Dismissal Application was supported by affidavits of:
a)Alen Sinanovic dated 8 October 2015 (“Sinanovic Affidavit”); and
b)Paul William Graham dated 28 January 2015 and 10 July 2015 (“First Graham Affidavit” and “Second Graham Affidavit” respectively).
Application
The Application provides as follows:
a)that the final orders Mr Ellis sought were:
1. $1 Million compensation from public liability insurance
2. An apology
3. Rectify access issues in all stores;
b)in response to a question asking what discrimination is being complained of, Mr Ellis has said “disability discrimination”, and nominated the DD Act as the legislation under which the alleged discrimination complained of is unlawful; and
c)in relation to a question asking that “all sections of the Act relevant to this claim” be stated, Mr Ellis has cited “46PH(2)” as the relevant section.
Despite the obvious shortcomings in the Application the Court notes the following:
a)the Application Mr Ellis filed was on the appropriate form (“Form”) required to be filed under r.41.02A of the FCC Rules, and that Form does not necessarily require an applicant to set out their claim of discrimination in a “satisfactory” manner which discloses its substance or any material facts, and that a completed Form does not necessarily assist in assessing the arguability of an applicant’s claims;
b)consequently at first directions hearings in claims under federal discrimination legislation in this Court, it will often be necessary to direct that an amended Form be filed including points of claim, or to direct that a statement of claim or points of claim, or affidavit, or some combination of the above be filed;
c)the equivalent Form for the making of human rights applications in the Federal Court has been said to be one that is unlikely to have utility in defining or resolving the controversy raised, and has been held not to be an originating process, 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 (“Reynolds (No 2)”) at [17] and [24] per Rares J, referred to in Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120 (“Ejueyitsi”) at [6] per Lucev FM, and it cannot therefore be “struck out”;
d)there is nothing in the Form which provides that the grounds need to specify, at the very least, the material facts relied upon to constitute the alleged unlawful disability discrimination and while the need to do so might be obvious to a lawyer, it would not necessarily be obvious to a litigant in person such as Mr Ellis;
e)whether or not the Form is “satisfactorily” completed may determine if it may be necessary to order that a pleading or statement of claim disclosing the nature of the complaint be filed; and
f)even where the Form may be said to have been satisfactorily completed by answering the relevant questions, there will still be a necessity for proper pleadings to be ordered that are to include the identification of the relevant disability, its extent and its relationship to the alleged discrimination: Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 1 ALD 459; [2008] EOC 93-493 at [90]-[91] per French and Jacobson JJ; Shurat Hadin, Israel Law Center v Lynch (No 2) [2014] FCA 413 (“Shurat Hadin”) at [35]-[36] per Robertson J.
These issues are further expanded upon below.
Part B of the Form is headed “Grounds of Application” and commences by asking:
3. What discrimination are you complaining of?
which is then followed by a note in the following terms:
The unlawful discrimination must:
(a)be the same or substantially the same as the discrimination that was the subject of the complaint terminated by the Australian Human Rights Commission, or
(b)arise out of the same or substantially the same acts, omissions or practices that were the subject of complaint.
The terms of the note to Item 3 of Part B of the Form reflect s.46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”). In response to this question and note, Mr Ellis has written “Disability discrimination”.
No further detail or particularisation of the alleged disability discrimination is set out, save that in response to Item 4 of Part B of the Form which asks:
Under what Act is the discrimination you are complaining of unlawful?
Mr Ellis has selected the box for the “Disability Discrimination Act 1992 (Cth)” and in relation to Item 5 of Part B of the Form which requires the applicant to state all sections of the Act that are relevant to the claim, he has written “46PH(2)”. The Court observes that there is no s.46PH(2) in the DD Act, but that s.46PH(2) of the AHRC Act provides that the President of the Australian Human Rights Commission (“AHRC”) must notify complainants in writing of a decision, and the reasons for that decision, if the President decides to terminate a complaint to the AHRC.
Part C of the Form deals with the applicant’s personal details. Item 13 of Part D of the Form seeks to establish the relationship between the applicant and the respondent, in relation to which Mr Ellis has indicated that he is a “Customer of” Grill’d. Part E of the Form seeks details of any extension of time which is sought. No extension of time is sought here.
Part F of the Form deals with required documents and provides that a copy of the complaint to the AHRC (“AHRC Complaint”) “(if available)” and the notice of termination of complaint given by the President of the AHRC (“Notice of Termination”) must accompany the application and claim. In response thereto, Mr Ellis has indicated that a copy of the Notice of Termination of the AHRC Complaint is attached. A copy of the AHRC Complaint was not attached to the Form.
The Notice of Termination indicates that reasons for the decision to terminate the AHRC Complaint are at attachment A, and that a copy of the complaint is provided at attachment B. Neither the reasons for the decision to terminate the AHRC Complaint nor a copy of the AHRC Complaint were provided with the Notice of Termination attached to the Form.
The Form does not necessarily require an applicant to set out their claim of discrimination in a manner which discloses its substance. Part B – Grounds of Application does not require that an applicant set out the grounds of the application, as none of the questions under Part B – Grounds of Application in the Form require an applicant to set out their points of claim, or to set out the facts alleged. Rather, an applicant, taking the questions asked under Part B – Grounds of Application literally, can simply state the type of discrimination being complained about (eg disability, in this case – age, sex or race in other cases), tick the relevant box in relation to the relevant Act, and state the sections of that Act relevant to the claim. There is no provision which directs an applicant, or requires an applicant to, set out their points of claim or the alleged facts of their claim. The fact that there is no detail, that is no points of claim, no material facts set out, or no particularisation of the alleged claim of disability discrimination, arises because of the nature of the Form, and is not the fault of Mr Ellis.
The consequence of the nature of the Form and the lack of a requirement to file an affidavit, means that at first directions hearings in claims under federal discrimination legislation in this Court, it will often be necessary to direct that an amended Form be filed including points of claim, or to direct that a Statement of Claim or points of claim, or affidavit, be filed. Precisely that course has had to be followed in this case.
Section 46PR of the AHRC Act provides as follows:
In proceedings under this Division, the Federal Court and the Federal Circuit Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.
The capacity to act informally and without regard to legal technicalities is not the provision of a licence to disregard legal principles: Zoological Board of Victoria v Australian Liquor, Hospitality and Miscellaneous Workers Union (1993) 49 IR 41 at 48 per Moore VP; Ejueyitsi at [7] per Lucev FM, nor to disregard the usual principles with respect to proper pleading: Maiocchi v Royal Australian and New Zealand College of Psychiatrists [2014] FCA 301 at [7]-[8] per Robertson J; and does not displace the requirement that the Court must exercise its powers judicially: Walker v State of Victoria [2012] FCAFC 38 at [81] per Gray J; Ejueyitsi at [7] per Lucev FM. More specifically (and albeit in the context of a claim under the Racial Discrimination Act 1975 (Cth)) the Federal Court observed in Shurat Hadin at [33]-[37] per Robertson J as follows:
33 In my opinion, Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26 at [43] is recent authority for the proposition that in order to make out a case the applicants have to show that the respondent’s act was, or acts were, unlawful because they fell within the sections of the Racial Discrimination Act which the applicants invoked.
34 In the case of s 9, for example, the applicants need to show:
(a) the act or acts the respondent allegedly did;
(b) that each act involved a distinction, exclusion, restriction or preference, based on race, colour, descent or national or ethnic origin; and
(c) that each act had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of a right of theirs, that right being a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
In relation to s 9, it is the first of these matters which is presently under consideration.
35 I do not regard the conclusions in the cases relied on by the applicants as having the consequence that this Court should not require pleadings that adequately state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial. After all, the point of Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245 is that the Commission is not a court, let alone a court with adversarial proceedings, so one would not expect the need for precision to be as great in that forum as it is in the Court. I would also note, as a general observation, that some of the prolongation and complexity of some human rights litigation may be seen to stem from an inadequate identification of the primary facts in the first place.
36 I reject the submission on behalf of the applicants that it is sufficient to establish: a terminated complaint; an affected person; and an allegation of unlawful discrimination, being the matters referred to in s 46PO of the Australian Human Rights Commission Act. I also reject the submission, founded on Hinchliffe v University of Sydney (2004) 186 FLR 376; [2004] FMCA 85 at [94], with reference to the practice in what is now the Federal Circuit Court of Australia, that there is a principle that pleadings in a formal sense should not be required in proceedings under the Australian Human Rights Commission Act.
37 The applicants accepted, in the course of argument, that they had to show an unlawfulness under the Racial Discrimination Act in order to succeed under the cause of action under s 46PO of the Australian Human Rights Commission Act but, while maintaining that the pleadings actually did do this, submitted they did not necessarily have to plead out every element. The applicants maintained that the cause of action was not under the Racial Discrimination Act, and so the Statement of Claim could not be struck out for lack of a cause of action because of any failings in the pleadings in relation to the Racial Discrimination Act. As will become apparent, I do not accept this submission.
Litigation history
Given that the grounds of the Dismissal Application seek that the Application be dismissed on the basis of Mr Ellis allegedly having failed to comply with orders of the Court, or, alternatively, Mr Ellis having no reasonable prospect of success in prosecuting the Application, it is necessary to go into some detail as to the procedural history of the matter leading to the filing of the Dismissal Application. The background is as follows:
a)Mr Ellis was served a copy by email of the Response to the Application (“Response”) by Mr Graham, the legal representative of Grill’d, on 14 January 2015: First Graham Affidavit, Annexure PWG-1, which prompted a swift response from Mr Ellis to Grill’d in which he made a number of unnecessary remarks: First Graham Affidavit, Annexure PWG-2;
b)on 27 January 2015 Mr Graham sent an email to Mr Ellis outlining the deficiencies in the Application and providing a minute of proposed orders seeking that Mr Ellis file further particulars: First Graham Affidavit, Annexure PWG-3;
c)at the first directions hearing on 9 February 2015 the Court relevantly made the following orders 1 and 3:
1. The applicant file and serve:
a. a statement of claim; and
b. any affidavits in support of the statement of claim;
by 9 March 2015.
3. The applicant be referred to a Registrar of this Court for the issuance of a pro bono certificate for advice generally, drafting of pleadings and affidavits, and representation generally in mediations and hearings, pursuant to r.12.02 of the Federal Circuit Court Rules 2001 (Cth).
d)on 21 February 2015 Mr Ellis filed what purported to be a Statement of Claim (“Statement of Claim”), the content of which read as follows:
1- DISABILITY DISCRIMINATION ACT.
2- SECTION 23 – ACCESS TO PREMISES.
3- SECTION 24 – GOODS/SERVICES/FACILITIES
4- SECTION 5 – DIRECT DISCRIMINATION.
5- THERE ARE RAMPS MADE BY RAVEN, THAT ARE EASILY AVAILABLE IN THE MARKET PLACE, SO A LAME EXCUSE FOR ABUSE.
6- MANY OTHER GRILL’D STORES ACROSS AUSTRALIA ARE INACCESSIBLE TO THE DISABLED, AS I HAVE VIEWED THEM.
7- I HAVE ALREADY DISCLOSED ALL STATEMENTS OF CLAIM IN PREVIOUS STATEMENT,
e)no affidavits in support of the Statement of Claim were filed by Mr Ellis;
f)on 12 March 2015 Mr Ellis made no appearance at a directions hearing and the matter was adjourned to a further directions hearing on 15 April 2015;
g)at the directions hearing on 15 April 2015, Mr Ellis appeared in person and the Court relevantly made orders that:
1. The respondent have leave to request further and better particulars of the statement of claim in accordance with the Schedule attached marked ‘A’, and the applicant file and serve particulars accordingly by 29 April 2015,
h)the particulars referred to in Schedule A to the 15 April 215 orders were as follows:
1. Specify the nature and extent of the applicant’s disability;
2. Identify and detail the alleged act(s) of discrimination complained of, including details of when, where, and how those acts are alleged to have taken place;
3. Provide details of the loss and damage alleged to have been suffered as a result of the alleged discrimination.
i)on 20 April 2015 Mr Ellis sent an email to Mr Graham in the following terms:
My disability is beckers muscular dystrophy.
The incident happened just before 7.30pm on Saturday 24 May 2014.
I cannot even see why that is even relevant or matters, as the Leederville outlet still has no access and many others under Grill’d have a lack of disability access on top of this further insult.
Second Graham Affidavit, Annexure PWG-3 (“Ellis 20 April 2015 Email”);
j)on 28 April 2015 Mr Graham sent an email in response to Mr Ellis stating that what had been provided was inadequate, and specifically noted:
i. Your email of 20 April 2015, below, states: “My disability is beckers muscular dystrophy”.
ii. While that identifies the nature of your disability, it does not specify the extent of that disability relevant to the context of the dispute, and therefore is not an adequate response.
iii. The extent of your disability is an essential part of understanding your claim, because you say you have been discriminated against on the basis of disability. That cannot be understood or tested without understanding the extent of your disability (together with and in the context of the alleged acts of discrimination).
…
iii. An adequate response must identify what the alleged act of discrimination was; when it happened (which you have done), where it happened (which you have alluded to in your email of 20 April 2015 but not expressly stated) and how it happened. If there are more than one alleged act[s] of discrimination, you need to do this with each alleged act of discrimination.
…
i. You have not attempted to address this at all, despite claiming the sum of $1m in damages.
ii. Financial damages are meant to compensate for actual loss and damage suffered as a result of the alleged discrimination. Please would you set out the loss you allege you have suffered as a result of the alleged acts of discrimination?
Second Graham Affidavit, Annexure PWG-4 (“Graham 28 April 2015 Email).
k)Mr Ellis responded by email of the same date, in the following terms:
My disability gives my legs muscle weakness and an inability to walk up stairs, as I am subject to falls, if there is no safe disability access. My body is physically weaker than most people, however it is a leg issue that causes this trouble without adequate or any access.
The Leederville Grill’d has a set of steps, no ramp and no rail for the safety of any customer. Many other Grill’d stores I have viewed have poor access too.
I have suffered the loss of my dignity, respect, excluded as a customer, access and disability discrimination, as the stairs say I am not welcome or any other disabled person, as I have stated in the affidavit. Grill’d refused point blank to have access installed and that sort of evil has damaged me emotionally/mentally.
I am an intellectual Australian and I would love to know why am I repeating myself to you by the way?
Second Graham Affidavit PWG-4 (“Ellis 28 April 2015 Email”);
l)on 13 July 2015 Mr Ellis did not appear at a directions hearing, and the matter was adjourned to 14 July 2015 when Mr Ellis appeared in person, and the following orders (“Disclosure Orders”) were made:
1. By 20 July 2015, the applicant remedy his non-compliance with paragraph 1 of the Orders made by the Hon. Judge Lucev on 15 April 2015 by filing and serving further and better particulars of his statement of claim in accordance with the schedule attached to those orders and marked “A”.
2. Pursuant to section 45 of the Federal Circuit Court of Australia Act 1999 (Cth) and Rules 14.02, 14.04, and 14.07 of the Federal Circuit Court Rules 2001:
a. By 10 August 2015 the applicant provide specific disclosure verified by affidavit, of all medical reports, evaluations, assessments, treatment plans, physical examination reports, Disability Support Pension Medical Reports, job capacity assessments or similar documents in his possession, power, custody or control evidencing the nature and extent of the disability alleged in these proceedings; and
b. The applicant produce the disclosed documents to the Court Registry; and
c. The respondent have leave to inspect the produced documents at the Court Registry.
m)on 29 July 2015 Mr Ellis filed a document headed “STATEMENT OF CLAIM FURTHER PARTICULARS OF THE DISABILITY DISCRIMINATION” (“July 2015 Further Particulars”) in which Mr Ellis stated as follows:
The nature and extent of my disability:
Becker's Muscular Dystrophy.
It renders me dysfunctional at walking up steps, stairs, and curbs and at an extreme danger of falling, even if I attempt to try steps, stairs or curbs. I am easily marooned and endangered if I try to attempt to climb up even one single step, as I can easily have very severe and catastrophic falls, without warning, as my legs can give way, due to trip and climbing hazards, being steps, stairs and aggressive inclines and it can take me at least 30 minutes to get off the ground, as I usually severely hurt myself and I have no strength in my leg muscles to stand, even with a rail, assistance or any sort of help. This disablement requires a very unique and unusual way of attempting to get off the ground or preventing falls. Slightly angled ramps, with a rail are a must for this type of disability, as it is for many walking disabilities.
… [Details of the name, position and address of Mr Ellis’ Clinical Specialist given]
I also suffer from depression, made worse, due to these disability discrimination, inaccessibility and hate crimes against myself, a disabled person.
… [Reference is then made to Mr Ellis seeing his GP in 1 month to obtain a report on his disability].
Identifying and detailing the act of disability discrimination, when, where and how the acts took place:
The HREOC formal complaint report has already indicated the act of disability discrimination, as there was no disabled access at Grill'd in Leederville at the time I lodged the complaint with HREOC. I complained on the day in question to a young staff member and I told him it was not good enough and I will lodge a complaint with HREOC. No attempt was made to have a manager speak to me. After HREOC received my complaint, Grill'd refused to in disabled access at the Leederville store, or any other disability inaccessible stores across Australia. This arrogance was even more humiliating and disability discriminating in itself. It speaks about a disability hate crime from a very financially successful corporation, without any feasible excuse to speak of. …
Details of the loss and damage suffered as a result of the disability discrimination:
The losses were extreme and severe humiliation and anxieties, making me suffer undue stress, causing uncertainty at my survival, as my depression surged well ahead than before this Grill'd disgrace. … My fall rates increase when I am stressed, as I take unnecessary risks and try to do things I cannot do when put under undue stress, when Grill'd has the money and means to resolve these issues. I cannot prove that my falls increase when I am dealing with disabled hate crimes and greedy lawyers and corporates, who just will not show compassion for the disabled and the elderly.
BE AWARE THAT MY ELDERLY MOTHERS DISCRIMINATION CLAIM IS COMING SOON TOO. YOU PEOPLE DO AMAZE ME!
n)on 12 August 2015 there was a further directions hearing at which Mr Ellis was granted an extension of time in which to comply with the orders for further and better particulars of his statement of claim, and seemingly in an endeavour to comply, Mr Ellis filed a letter from his general practitioner dated 12 September 2015 (“General Practitioner’s September 2015 Letter”) that stated:
Troy age 45 yrs is well known to me as his GP since at least 2009 He is very limited in movement especially steps stairs or curbs. 100 metre limitation and mobility is being further limited with passage time Frustration and anger is contributed to by this limitation.(depression) Futher [sic] information can be sought from the undersigned.
…
Current Problems
Depression
MUSCULAR DYSTROPHY diagnosed since 2001
o)on 22 September 2015 Mr Graham sent an email to Mr Ellis indicating that provision of Dr Milne’s report was not sufficient compliance with the Disclosure Orders: Sinanovic Affidavit, Annexure AS-2, which elicited a response from Mr Ellis on 28 September 2015 abusing Mr Graham for his offence against Mr Ellis’ “humanity”: Sinanovic Affidavit, Annexure AS-3;
p)another legal representative of Grill’d, Mr Wyatt, advised Mr Ellis by email on 30 September 2015 that Grill’d were prepared to offer Mr Ellis an extension of time until 5 October 2015 to comply with order 2 of the Disclosure Orders, and drawing his attention to the fact that the order requires he provide specific disclosure verified by affidavit, of all medical reports, evaluations, assessments, treatment plans, physical examination reports, Disability Support Pension Medical Reports, job capacity assessments or similar documents in your possession, power, custody or control evidencing the nature and extent of the disability alleged in these proceedings: Sinanovic Affidavit, Annexure AS-4;
q)a further email was sent to Mr Graham and Mr Wyatt on 5 October 2015 in which Mr Ellis makes abusive statements regarding how Grill’d have treated him in this proceeding: Sinanovic Affidavit, Annexure AS-5; and
r)on 9 October 2015 Grill’d filed the Dismissal Application the subject of these proceedings.
Submissions
Grill’d’s submissions
In support of the Dismissal Application Grill’d made the following submissions:
a)Mr Ellis has failed to comply with the Disclosure Orders despite a significant number of opportunities to do so and to date has not done so, while he has also failed to appear on two occasions and is yet to provide adequate further and better particulars to Grill’d;
b)Mr Ellis has been afforded a sufficient amount of time to comply with the Disclosure Orders and there has to be an end to the opportunities given to him;
c)Mr Ellis has repeatedly failed to comply with the Disclosure Orders;
d)given the Disclosure Orders allow Mr Ellis to put forward evidence concerning the nature and extent of the disability alleged in these proceedings (proof of which is fundamental to his claim), his conduct demonstrates a failure to prosecute his claim with due diligence;
e)Mr Ellis’ serious non-compliance and failure to prosecute his claim with due diligence is undoubtedly the type of conduct which gives rise to the Court's power to dismiss the proceedings as contemplated by r.13.03B(l) of the FCC Rules;
f)it is conceded that Mr Ellis may have an arguable case when taking his disability at its highest, however Grill’d has no particulars as to the nature and extent of the disability at the time of the alleged discrimination in circumstances where the “step” Mr Ellis disputes is allegedly 13 centimetres high;
g)the conduct of Mr Ellis evidences an unwillingness to cooperate with the Court and Grill’d that in turn has caused unnecessary delay and expense and prejudice to Grill’d;
h)the language used by the Mr Ellis in his correspondence coupled with his non-compliance show his contempt of the judicial process and the obligations placed upon him by order of the Court;
i)this is not a situation where that prejudice can be alleviated by way of costs orders as Mr Ellis has remarked “Good luck getting costs out of me, you simpleton lunatic, as I’m a disabled pensioner with no money or assets”: First Graham Affidavit, Annexure PWG-2 (being an email from Mr Ellis to Mr Graham dated 14 January 2015); and
j)if the Application is not dismissed it would be manifestly unfair to Grill’d and contrary to the interests of justice.
In support of the Dismissal Application Grill’d also referred to and relied upon the remarks made in Wang v Botany View Hotel [2014] FCCA 850 (“Wang-FCC”) at [22]-[24], [30] and [33]-[34] per Judge Emmett:
[22] The opportunities that the applicant has been given, in my view, are more than ample to enable him to obtain legal advice and to otherwise comply with the orders of the Court in pleading his case.
[23] Section 42 of the Federal Circuit Court Act 1999 (Cth) requires the Court to endeavour to ensure that proceedings are not protracted. Moreover, it is well established that cases need to be dealt with expeditiously if they are to be dealt with justly (see: Bi v Mourad [2010] NSWSC 17 at [47] per Allsop J).
[24] I find that the applicant's conduct demonstrates an unwillingness to cooperate with the Court and the respondent. The applicant's non-compliance of directions made by the Court causes unnecessary delay, expense and prejudice to the respondent. Such conduct is unjustifiably oppressive to the respondent (see Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427at 452; Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at [36].
[30] The applicant has failed to comply with the orders of this Court. I am satisfied that to allow the applicant's proceeding to continue as it presently stands is frivolous, vexatious, and an abuse of the Court's process…
[33] The orders that I propose to make have been considered in the light of the knowledge that the power to dismiss cases summarily ought to be very sparingly exercised and only in exceptional cases (see: Sea Culture International v Scoles [1991] FCA 523 at [12] per French J). It is well recognised that what amounts to an abuse of Court process is insusceptible of a formulation comprising closed categories (see: Batistatos v Roads and Traffic Authority of New South Wales 226 CLR 256 at [265] per Gleeson CJ, Gummow, Hayne and Crennan JJ).
[34] In the circumstances, I am satisfied that the applicant is in default, pursuant to r.13.03A(1)(a) of the Rules. The orders sought by the respondent are appropriate on all the bases identified by the respondent.
Mr Ellis’ submissions
In opposition to the Dismissal Application Mr Ellis filed:
a)an affidavit sworn on 19 October 2015 (“Ellis Affidavit”); and
b)an outline of submissions filed on 20 October 2015.
The Ellis Affidavit is largely objectionable on the basis that it is variously comprised of material which is vague, irrelevant or submissions. The gist of the Ellis Affidavit appears, however, to be as follows:
a)that Mr Ellis has suffered physical and mental damage because of a lack of disability access to unspecified Grill’d premises;
b)he seeks compensation for injury and distress caused by the lack of disability access.
Mr Ellis’ submissions, of some seven pages and 36 paragraphs are largely comprised of material which is scandalous or irrelevant to a potential cause of action for direct or indirect discrimination under the DD Act. There are, however, some relevant assertions which emerge from Mr Ellis’ outline of submissions, as follows:
a)that he has always complied with Court directions “if and when they ever made sense”;
b)his medical information is private, and he cannot afford a medical report, and that he has provided the contact details for his general practitioner and an attending specialist;
c)the Grill’d store at Leederville does not cater for disabled entry or access and there is no disabled ramp and no disabled access;
d)that to summarily dismiss the Application would be unfair; and
e)that ramps are cheap, easily installable, and have been installed at other stores (albeit seemingly not Grill’d stores) for use by people with a disability.
Summary dismissal - consideration
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.
Rule 13.10 of the FCC Rules replicates part of s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the authorities on s.17A of the FCCA Act are useful in considering r.13.10 of the FCC Rules, as was observed by the Federal Court in relation to the equivalent provisions in s.31A of the Federal Court of Australia Act 1976 (Cth) (“FC Act”) and r.26.01 of the Federal Court Rules 2011 (Cth) (“FC Rules”) in Manday Investments Pty Ltd v Commonwealth Bank of Australia (No 3) [2012] FCA 751 at [8] per McKerracher J and Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337 at [16] per Collier J respectively. 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 at [58]-[60] per Hayne, Crennan, Kiefel and Bell JJ (“Spencer”) 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;
f)the power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ; and
g)full weight must be given to the expression as a whole, and it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different procedural regimes: 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)Grill’d, in making the summary dismissal application, bears the onus of persuading the Court to make such an order: Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 (“Cassimatis”) 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 should consider matters outside the pleadings: Qualify Me Pty Ltd v Get Me Qualified Australia Pty Ltd [2016] FCA 192 (“Qualify Me”) at [24] per Markovic J; Singh v Owners Strata Plan No 11723(No 3) [2012] FCA 1121 (“Singh (No 3)”) at [39] per Griffiths J;
c)significantly, Grill’d concedes that Mr Ellis’ disability, taken at its highest, may give rise to an arguable case: see [16(f)] above;
d)where an applicant fails to identify any valid claim at all in the materials placed 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 at [30] per Reeves J (“Dowling”) 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.
e)the Court must be cautious in summarily dismissing an application involving a litigant in person, and ought to act so as to diminish any disadvantage that a litigant in person suffers when faced with a lawyer in the adversarial process, but do so in a manner which does not confer upon the litigant in person an advantage over their represented opponent: Morton v Mitchell Products Pty Ltd (1996) 21 ACSR 497 at 513-514 per Sackville J.
The Court notes that:
a)in Walker v Victoria [2012] FCAFC 38 at [26] per Gray J the Federal Court said, of a disability discrimination claim, that:
There is no attempt to plead as material facts specific acts or omissions of the respondent. As a consequence, the respondent has not been called upon to plead to such allegations, so as to make it clear what is and is not in dispute. For the most part, there is a failure to particularise matters such as dates and the identification of the particular persons responsible. Specific alleged acts or omissions are not related directly to the provisions of the Disability Discrimination Act on which the appellant relies. There are no indications of the persons, or classes of persons, who might be regarded as proper comparators for the purposes of determining whether there has been discrimination by less favourable treatment, or of determining who is able to comply with a particular requirement or condition in respect of which it is alleged that the appellant cannot comply. In short, the amended statement of claim is a litany of complaints, rather than a series of allegations of unlawful discrimination under the Disability Discrimination Act.
b)it is important even where a litigant in person is involved, that the matters required to be established in a disability discrimination claim are, ultimately, comprehensively pleaded in something akin to the proper form. In Modra v Victoria [2012] FCA 240; (2012) 205 FCR 445; (2012) 291 ALR 429 at [32] per Gray J the Federal Court considered a case in which there were deficient pleadings, and stated:
32… A pleading lacking in precision places upon the judge an extra burden of attempting to ascertain whether there are issues on which the party can rely lawfully. There is a risk that, without the assistance of precise pleadings, the judge will fall into error in that respect. An imprecise pleading adds to the expense of a proceeding. The opposing party will have a great deal more work to do than would normally be the case, in determining whether to gather evidence to meet all that is said in the deficient pleading. The trial is likely to be longer than if the claim were pleaded properly. Thus, a failure to plead a claim correctly will impact not only on justice, but also on timeliness, efficiency and expense…
In this case Mr Ellis has put, albeit at a very high level of generality, material before the Court in which he indicates that:
a)he has a disability, namely Becker’s Muscular Dystrophy;
b)there was an access issue, of some kind, when he endeavoured to enter the premises of a Grill’d store in Leederville at about 7.30pm on 24 May 2014; and
c)he has suffered physical and emotional injury as a consequence of his inability to enter the premises of the Grill’d store in Leederville.
The Application should not, therefore, be summarily dismissed. That is because on the materials presently before the Court there is not complete absence of a possibly valid claim, and the elements of a possibly arguable disability discrimination case are discernible: Dowling at [30] per Reeves J; Qualify Me at [24] per Markovic J; Singh (No 3) at [39] per Griffiths J. In that regard:
a)a specific disability, Becker’s Muscular Dystrophy is alleged in the July 2015 Further Particulars, and confirmed at least in part, by the General Practitioner’s September 2015 Letter: see [15(m) and (n)] above;
b)to some degree the extent of the disability alleged, and its effects upon Mr Ellis, are set out in the July 2015 Further Particulars, particularly in relation to the alleged danger of falling if Mr Ellis endeavours to traverse steps, and also in the General Practitioner’s September 2015 Letter which refers to Mr Ellis’ “very limited … movement especially steps” (the mode of expression is somewhat truncated, but the meaning is discernible), but ultimately the extent of any disability relied upon and any incapacities that arise therefrom ought no doubt be sought to be proved by expert evidence from specialist medical practitioners and allied health professionals at hearing;
c)the conduct said to constitute the disability discrimination is discernible as the alleged inability to access the Grill’d store at Leederville (or at least that Grill’d store), albeit the particulars of how that conduct was manifested at the time the alleged disability discrimination occurred is not readily discernible, and certainly not sufficiently articulated or properly particularised. Mr Ellis appears to point to the AHRC Complaint as evidencing the conduct said to constitute the disability discrimination. The AHRC Complaint generally forms no part of the proceeding in this Court at all, and is neither a form of originating process, pleading nor particulars of a pleading, and its existence is a pre-condition to, and a constraint upon, the Court’s jurisdiction under the AHRC Act, and as such its function within the records of the Court is a limited one: Reynolds (No 2) at [21] and [23]-[24] per Rares J; Oldham v Capgemini Australia Pty Ltd & Anor [2015] FCA 1149; (2015) 241 FCR 397 at [28] per Mortimer J; Oldham v Capgemini Australia Pty Ltd & Anor (No 2) [2016] FCA 1101 at [14] and [27]-[28] per Mortimer J;
d)Grill’d concedes in its submissions that, taken at their highest, Mr Ellis’ allegations might constitute an arguable claim of disability discrimination; and
e)it is fair to observe that apart from the fact that the Application seemingly relates to a claim of disability discrimination occurring at the Grill’d store in Leederville on or about 7.30pm on Saturday, 24 May 2014, and seemingly relates to disability access, the Statement of Claim presently does not specifically allege what Grill’d has done or not done, does not properly assert how the alleged disability discrimination arises, and although it alleges the discrimination is direct for the purposes of s.5 of the DD Act, does not properly or fully set out or particularise any of the relevant matters in relation thereto. And although damages are ultimately a matter for the Court, there is nothing by way of particulars to justify what is plainly a claim for an enormous sum in damages in federal human rights proceedings. The Statement of Claim in its present form is wholly unsatisfactory and is therefore to be struck out, pursuant to the Court’s power to do so under r.16.21(1)(a)-(e) of the FC Rules, applied pursuant to r.1.05(2) of the FCC Rules, having regard to the principles with respect to striking out a pleading or portions of a pleading under r.16.21 of the FC Rules as set out in Polar Aviation Pty Ltd & Anor v Civil Aviation Safety Authority & Ors [2012] FCAFC 97; (2012) 203 FCR 325 at [43] per Perram, Dodds-Streeton and Griffiths JJ, and Radisich v McDonald [2010] FCA 762; (2010) 198 IR 244 at [20] per Gilmour J. Importantly, however, the pleading deficiencies set out above are remediable, and the Court has no doubt that an arguable claim could be pleaded. Mr Ellis should not be denied the opportunity of making a second attempt to draft a statement of claim in proper form. In that regard, the Court notes that he is a litigant in person, that disability discrimination claims can be difficult to draft, even for practitioners, and that in the ordinary course of litigation, even where both parties are professionally represented, it is not unusual for there to be a number of iterations of a statement of claim. In Thorpe v Commonwealth of Australia(No 3) [1997] HCA 21; (1997) 71 ALJR 767; (1997) 144 ALR 677, ALJR at 774-775 per Kirby J it was observed that ordinarily a party will be permitted an opportunity to re-plead:
Even if a party makes good its attack on another's pleading, a court will ordinarily permit the opponent to reframe the pleading so long as it is clear that there is point in doing so and that the further time and opportunity will have utility. The guiding principle is doing what is just. Courts, particularly today, strive to uphold efficiency and economy in the disposal of proceedings before them. But they also remember that pleadings are a means to the end of justice according to law. Pleadings are the servants, not the masters of the judicial process.
In Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081 at [89]-[90] per Flick J the Federal Court emphasised the need for caution before refusing a party to re-plead.
The Court has concluded that, if Mr Ellis were to properly plead his case he has some prospect of success. The Dismissal Application is therefore dismissed, but the Statement of Claim is to be struck out in its entirety, with leave to re-plead.
The Court observes that Mr Ellis was the subject of a referral for pro bono assistance: see [15(c)] above, but it does not appear that any pro bono assistance was rendered, or if it was, it has left no discernible trace on these proceedings. In the absence of pro bono assistance, or further pro bono assistance, as the case may be, the Court notes that there are numerous resources available to a litigant in person in relation to pleading generally, including the following:
a)available online and accessible to the public is a speech delivered by Justice Katzmann in the College of Law Judges’ Series on 5 November 2015 titled “Pleadings and Case Management in Civil Proceedings in the Federal Court of Australia”: In particular at [43]-[57] the characteristics of a good pleading are set out, none of which ought to be beyond the capacity of a litigant in person who takes the time to understand what their rights are under the cause of action they wish to pursue; and
b)in Federal Civil Litigation Precedents (Looseleaf, LexisNexis Butterworths) (“FCL Precedents”) the “Pleadings” commentary, at which Nathan Moshinsky QC (as Justice Moshinky then was) is cited as an author, and specifically the Rules of Pleading at [24,070]-[24,100] and the Drafting Considerations at [24,630]-[24,640] provide extensive guidance on the substance of a successful pleading. In the context of applications concerning the AHRC Act the FCL Precedents at [50,600] and [90,100] provide exemplar originating applications and supporting affidavits for such claims, and the specific example set out is a claim under the DD Act, and is a useful guide to a litigant in person on the material facts and claims which might be adapted for use in relation to pleadings proper.
Grill’d also submitted that the Court has inherent jurisdiction to control its own proceedings, and therefore the inherent power to dismiss these proceedings summarily, and referred to Wang v Botany View Hotel [2014] FCA 730 (“Wang-Federal Court”) at [18] per Jagot J where the Federal Court said:
There is no doubt the FCC had the power to dismiss Mr Wang's claim on this basis, whether pursuant to rule 13.10 of the FCC rules or pursuant to its inherent jurisdiction (Burton v Shire of Bairnsdale (1908) 7 CLR 76; Hunter v Chief Constable of West Midlands Police [1982] AC 529; [1981] 3 All ER 727). Nor is there any doubt that such a course was reasonably open to the primary judge.
In Skipworth v State of Western Australia & Ors (No 2 [2008] FMCA 544; (2008) 218 FLR 16 at [34] per Lucev FM this Court (then the Federal Magistrates Court), having cited DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 (“DJL”); Parsons v Martin (1984) 5 FCR 235 (“Parsons”); VTAG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291 and Re Read [2007] FCA 1985; (2007) 164 FCR 237 said that:
The true position is therefore that this Court, like the Federal Court and the Family Court, has no inherent jurisdiction. There is an implied incidental power to make orders necessarily incidental to express powers. As with the Federal Court and the Family Court, this Court has implied incidental powers shaped by the relevant statutory provisions.
In Maddison v Qualtime Association Inc [2010] FMCA 25; (2010) 113 ALD 390 this Court (then the Federal Magistrates Court), having reviewed the relevant authorities, concluded at [12] per Wilson FM that:
… like the Federal Court, the Federal Magistrates Court has, in addition to its expressly conferred jurisdiction, such implied jurisdiction as is incidental and necessary to the exercise of the jurisdiction otherwise conferred on it.
Having regard to the conclusion that the Court has reached with respect to the Dismissal Application it is unnecessary to resolve any controversy as to whether this Court does or does not have inherent jurisdiction, but it might be observed that, with respect, the authorities relied upon in Wang-Federal Court are a High Court decision which precedes the establishment of the existing Australian federal courts by several decades, and English authority relating to a court system which has a different constitutional basis to the Australian court system.
Dismissal for non-compliance – consideration
Power to dismiss for non-compliance with the Court’s orders
Rule 13.03A(1) of the FCC Rules provides as follows:
(1) For rule 13.03B, an applicant is in default if the applicant fails to:
(a) comply with an order of the Court in the proceeding; or
(b) file and serve a document required under these Rules; or
(c) produce a document as required by Part 14; or
(d) do any act required to be done by these Rules; or
(e) prosecute the proceeding with due diligence.
Rule 13.03B(1) of FCC Rules provides as follows:
(1) If an applicant is in default the Court may order that:
(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b) a step in the proceeding be taken within the time limited in the order; or
(c) if the applicant does not take a step in the time mentioned in paragraph (b) -the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.
This Court has observed that the exercise of the discretion to dismiss for non-compliance with a Court’s orders is not commonplace, and further, that orders under r.13.03B(1) of the FCC Rules ought to be exceptional: Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159 at [20] and [28] per Judge Lucev.
In Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388; (1990) 98 ALR 200; [1991] ATPR 41-082 (“Lenijamar”) the Full Court of the Federal Court observed that whilst it was undesirable to exhaustively outline the circumstances in which the equivalent power under the then O.10 r.7 of the Federal Court Rules 1976 (Cth) would be appropriately exercised, two situations were obvious candidates for the exercise of the power:
a)the first situation outlined in Lenijamar arises where there has been a history of non-compliance by an applicant to indicate an inability or unwillingness to cooperate with the Court and the other party or parties in bringing the matter to a hearing within an acceptable period: Lenijamar FCR at 396 per Wilcox and Gummow JJ. Importantly, there is:
no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court’s judgement as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule.
b)the second situation outlined in Lenijamar arises where, whatever an applicant’s state of mind or resources, the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent: Lenijamar FCR at 396 per Wilcox and Gummow JJ.
In Professional Administration Service Centres Pty Ltd v Federal Commissioner of Taxation [2012] FCAFC 180; (2012) 91 ATR 546; (2012) 295 ALR 52 (“PASC Pty Ltd”) at [44] per Edmonds, McKerracher and Nicholas JJ the Full Court of the Federal Court provided a list of relevant factors to guide the Court in the exercise of power (but cautioned that the the list is intended to be informative, not exhaustive):
(i) the nature of the default involved;
(ii) the duration of the default and whether it is continuing;
(iii) the circumstances in which the orders, in respect of which default has occurred, were made including whether the orders made accorded with the practice of the court in making orders of that kind;
(iv) the circumstances which occurred between the time of making the orders and the order for the dismissal of the proceeding, including whether any attempt was made by the defaulting party to amend or set aside the orders to accommodate or deal with these intervening circumstances;
(v) whether the continuing default is occasioning unnecessary delay, expense or other prejudice or unacceptable burden on the respondent;
(vi) the attitude of the applicant to the default and the court's judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period;
(vii) the stage that the proceeding has reached – whether they have only recently been commenced; whether it has been commenced for some time but not advanced due, in whole or in part, to the default; or whether the proceeding is in an advanced state ready or nearly ready for hearing;
(viii) the likely disruption to hearing dates or, if not fixed, to setting the matter down for hearing at an early date;
(ix) the consequences to the applicant of dismissing the proceeding.
Ultimately, r.13.03B(1)(a) of the FCC Rules requires the Court to objectively assess all of the circumstances and to determine if the non-compliance is sufficiently serious to warrant dismissal of the Application for default in failing to comply with orders of the Court: Wintle v RUC Cementation Mining Contractors Pty Ltd [2012] FMCA 140 at [21] per Lucev FM.
The non-compliance that Grill’d relies upon is:
a)Mr Ellis failing to appear at the directions listings of 12 March 2015 and 13 July 2015;
b)Mr Ellis failing to comply with the Court’s orders of 16 April 2015 with respect to filing and serving further and better particulars; and
c)the non-compliance with the Disclosure Order.
Mr Ellis is therefore arguably in default pursuant to r.13.03A(1)(a)-(c) and (e) of the FCC Rules.
Non-attendance
Having reviewed the transcript of the various directions listings there was no explanation from Mr Ellis as to his non-appearance. While the Court understands Grill’d to have been inconvenienced and to have incurred costs in attending listings where the matter was simply adjourned and no progress could be made, Mr Ellis’ non-appearances have not resulted in significant delays. On 12 March 2015 it was indicated that Mr Ellis was meeting with potential pro-bono counsel the following day, and Grill’d were agreeable to adjourning the matter in the hope that if pro-bono counsel was secured the matter would be progressed more efficiently. No particular prejudice was suffered by Grill’d. On 13 July 2015 when Mr Ellis was not in attendance the matter was re-listed the following day, and Mr Ellis was in attendance. These are matters the Court considers can be remedied by a costs order against Mr Ellis. While Grill’d submitted that Mr Ellis has made remarks concerning not being in a financial position to pay any legal costs, there is no evidence before the Court as to Mr Ellis’ actual financial circumstances. That Mr Ellis also made a remark that he was a “disabled pensioner” in correspondence to Mr Graham is not sufficient for the Court to consider him impecunious. The Court cannot make conclusions as to a person’s financial position based upon intemperate remarks, and assumptions concerning the financial capacity of pensioners, and Grill’d would need to lead proper evidence as to Mr Ellis’ financial status before any conclusion might be reached as to his capacity to pay any costs awarded in these proceedings.
While the non-appearance of Mr Ellis is not unimportant, the Court does not consider it significant enough to alone warrant dismissal of the Application. Further, the weight the Court gives to this default in the cumulative consideration of defaults is not substantial.
Further and better particulars
Mr Ellis does not concede that he failed to comply with the request for further particulars as ordered by the Court on 16 April 2015. Mr Ellis sent to Grill’d, via email, what he claims were particulars on 20 April 2015 and again on 28 April 2015. Grill’d submitted that these “particulars” were insufficient and did not comply with the 16 April 2015 order: see First Graham Affidavit, Annexures PWG-2, PWG-3 and PWG-4. It is beyond doubt, however, that no document was “filed” in accordance with the orders of the Court.
When the matter came back to the Court on 14 July 2015, Mr Ellis was granted an indulgence by extending the time for his compliance with the 16 April 2015 order until 20 July 2015. Mr Ellis appears to have attempted to comply with this order on 29 July 2015 by filing the July 2015 Further Particulars (notwithstanding the orders required he do so by 20 July 2015). The July 2015 Further Particulars filed with the Court do provide some further particulars, but not all requested particulars. Mr Ellis also refers to matters irrelevant to his particular claim, including the conduct of the Grill’d legal representatives, matters occurring in mediation and threats of further legal action. Grill’d maintain that the default and non-compliance is, therefore, continuing as Mr Ellis is yet to provide an acceptable and adequate response to the request for further particulars.
It is clear that Mr Ellis has attempted to comply with the order for further particulars. He did attempt to do so on two occasions prior to the deadline of 29 July 2015. The July 2015 Further Particulars while still defective, provided particulars of some depth, albeit not in the usual form. Mr Ellis’ response to the request for particulars of the “nature and extent of disability” relevantly reads:
It renders me dysfunctional at walking up steps, stairs, and curbs and at an extreme danger of falling, even if I attempt to try steps, stairs or curbs. I am easily marooned and endangered if I try to attempt to climb up even one single step, as I can easily have very severe and catastrophic falls, without warning, as my legs can give way, due to trip and climbing hazards, being steps, stairs and aggressive inclines and it can take me at least 30 minutes to get off the ground, as I usually severely hurt myself and I have no strength in my leg muscles to stand, even with a rail, assistance or any sort of help. This disablement requires a very unique and unusual way of attempting to get off the ground or preventing falls. Slightly angled ramps, with a rail are a must for this type of disability, as it is for many walking disabilities… I also suffer from depression, made worse, due to these disability discrimination.
While Mr Ellis’ attitude as evinced in some of his emails is discourteous and less than desirable, the Court is not of the view Mr Ellis has sought to defy the Court’s orders or delay the proceedings. It is arguable that Mr Ellis simply did not understand what was required of him to satisfy what he had been asked to provide: see, for example, the transcript of the 15 April 2015 directions hearing, and that when those matters had been explained to him subsequently in Court as to what is required, he has both endeavoured to comply and provided particulars of some depth, albeit not in the usual form.
The proceedings are not presently in a state where the pleadings are sufficiently advanced to enable the Court to list the matter for final hearing. As a result of Mr Ellis’ insufficient particularisation Grill’d is still unable to adequately identify the precise case it is required to meet. In circumstances where the Court has concluded that there may be an arguable case of disability discrimination, and where Mr Ellis has endeavoured to provide proper particulars, and whilst not providing proper particulars in proper form, has provided particulars of some depth, the Court is of the view that to dismiss for non-compliance for failure to comply with an order to provide further and better particulars would be contrary to the interests of justice. The Court also observes that from the time of the filing of the Application to the time of hearing on the Dismissal Application was a period of slightly less than 16 months, and it cannot therefore be said that Mr Ellis’ non-compliance with any of the Court’s orders, and in particular the order for further and better particulars, has been such as to result in any extraordinary delay in these proceedings, or even any delay which might be characterised as unusual.
In those circumstances the Court does not consider it appropriate to dismiss the application for non-compliance on the basis of failing to provide adequate particulars. For the purposes of a cumulative assessment of relevant non-compliance the failure to provide adequate particulars is to be afforded little weight in any such cumulative assessment.
Disclosure Order
The Disclosure Order specifically required Mr Ellis to produce:
specific disclosure verified by affidavit, of all medical reports, evaluations, assessments, treatment plans, physical examination reports, Disability Support Pension Medical Reports, job capacity assessments or similar documents in his possession, power, custody or control evidencing the nature and extent of the disability alleged in these proceedings.
There has been no compliance at all with the precise terms of the Disclosure Order as Mr Ellis has not filed a specific list of documents verified by affidavit. The documents required to be disclosed are of direct relevance to the issues in these proceedings. Mr Ellis has seemingly attempted to provide disclosure of his medical condition to Grill’d by providing the name of his Specialist and the General Practitioner’s September 2015 Letter which refers to some of his conditions and medications. Mr Ellis appeared to submit that if Grill’d want the documents then they have the means to seek them because he has provided the contact numbers for his specialist and general practitioner, and Grill’d can make any necessary enquiries. This plainly abrogates what is required by the Disclosure Order which places the onus on Mr Ellis to file an affidavit listing the documents in his possession, power, custody or control of the type there specified, and which evidence the nature and extent of the disability alleged in these proceedings. Mr Ellis appears to proceed under the misapprehension that he is actually required to produce the documents at this stage, and, for example, complained that he could not afford the cost of a report which was being prepared for him by his general practitioner. It suffices to observe that, to the extent that documents of the type set out in the Disclosure Order are not within Mr Ellis’ possession, power, custody or control, those documents would, if necessary to prove his case, be capable of production pursuant to a subpoena issued by Mr Ellis under the FCC Rules. It must be borne in mind that it is for Mr Ellis to prove his case of alleged direct discrimination under s.5 of the DD Act: Ferrus v Qantas Airways Ltd [2006] FCA 812; (2006) 155 IR 88 at [48] per Collier J; Vassollo v Jetswan Pty Ltd & Anor [2010] FMCA 708 at [20] per Lloyd-Jones FM (and cases there cited), and it is not for Grill’d to go in search of that proof (or disproof as the case may be).
Mr Ellis’ did make some submissions regarding breaches of his privacy, and basic human rights, if Grill’d were to have access to his medical records. It is accepted that an individual’s medical records are generally private and confidential, however r.15A.01 of the FCC Rules specifically refers to “medical record” as something in respect of which a subpoena or notice to produce may issue, and relevantly defines a “medical record” as:
medical record, for a person, means the histories, reports, diagnoses, prognoses, interpretations and other data or records, written or electronic, relating to the person's medical condition, that are maintained by a physician, hospital or other provider of services or facilities for medical treatment.
The law, including r.15A.12(2) of the FCC Rules, and the implied undertaking deriving from common law principles referred to in Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; (1995) 69 ALJR 494; (1995) 128 ALR 391, CLR at 32-33 per Mason CJ is that there is no right to make or communicate publicly or to any stranger to the proceedings the contents of documents produced in proceedings, or to use them for any collateral object. Therefore, to the extent Mr Ellis has raised issues with his privacy, the Court is satisfied that those issues ought not to arise in these proceedings, and the Court is also satisfied that access to Mr Ellis’ private medical records is in the interests of justice, because they may be necessary as part of the proof or disproof of his claim, and further, that it is not uncommon for the Court to require production of such documents: King v Australian Pharmaceutical Industries Ltd [2011] FCA 95; Hollingdale v North Coast Area Health Service [2006] FMCA 5.
The Court considers the failure to comply at all with the Disclosure Order to be serious. The Disclosure Order having been made, it ought to have been complied with by Mr Ellis. Nevertheless, the effect of that non-compliance must now be weighed against the fact that the Court has found that Mr Ellis has a case which, if properly pleaded, may have some prospect of success, and that he ought to be permitted to re-plead the Statement of Claim. If a re-pleaded Statement of Claim is filed then the necessity, at this stage, for compliance, or further compliance with the Disclosure Order probably falls away. A properly pleaded Statement of Claim will require the filing of a Defence, not the examination of documents which, although doubtless relevant, are ultimately properly evidentiary matters for hearing. Thus, whilst there has been a serious non-compliance by Mr Ellis in relation to the Disclosure Order, the effect of it is such, when taken with the Court’s order that Mr Ellis be allowed to re-plead his Statement of Claim, that the non-compliance has no practical effect at this stage of the proceedings. Therefore, whether taken individually, or cumulatively with the other matters of non-compliance raised by Grill’d, the failure to comply with the Disclosure Order does not rise sufficiently high to warrant an order for dismissal of the Application by reason of non-compliance.
Cumulative consideration of non-compliance issues
It follows from the discussion set out at [44]-[56] above that a cumulative consideration of the matters in respect of which there was non-compliance by Mr Ellis does not rise so high as to warrant the Court making an order dismissing the Application for non-compliance with any of the Court’s orders.
Conclusion and orders
The Court has, for the reasons set out above, concluded that:
a)the Dismissal Application is to be dismissed;
b)the Statement of Claim is to be struck out in its entirety pursuant to r.16.21(1)(a), (c), (d) and (e) of the FC Rules applied pursuant to r.1.05(2) of the FCC Rules;
c)Mr Ellis is to have leave to file and serve a Further Statement of Claim by 20 December 2018; and
d)the proceedings will be otherwise be adjourned to a further directions hearing at 4.00pm on 24 January 2019.
The Court will hear the parties as to costs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 20 November 2018
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