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Ellis v Grill'd Pty Ltd

Ellis v Grill'd Pty Ltd

Case [2018] FCCA 3294 20 November 2018

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FEDERAL CIRCUIT COURT OF AUSTRALIA

ELLIS v GRILL’D PTY LTD

[2018] FCCA 3294

Catchwords:
HUMAN RIGHTS – Disability discrimination – access to premises – application in a case to dismiss application.

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
Disability Discrimination Act 1992 (Cth), s.5
Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Circuit Court Rules 2001 (Cth), rr.1.05, 13.03A, 13.03B, 13.03C, 13.10, 15A.01, 15A.12, 41.02A
Federal Court of Australia Act 1976 (Cth), s.31A
Federal Court Rules 1976 (Cth), O.10, r.7
Federal Court Rules 2011 (Cth), rr.16.21, 26.01
Racial Discrimination Act 1975 (Cth)

Cases cited:

Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623
DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226
Dowling v Commonwealth Bank of Australia [2008] FCA 59
Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; (1995) 69 ALJR 494; (1995) 128 ALR 391
Ferrus v Qantas Airways Ltd [2006] FCA 812; (2006) 155 IR 88
Forbes v Commonwealth (No 2) [2003] FMCA 262

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
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388; (1990) 98 ALR 200; [1991] ATPR 41-082
Maddison v Qualtime Association Inc [2010] FMCA 25; (2010) 113 ALD
Maiocchi v Royal Australian and New Zealand College of Psychiatrists [2014] FCA 301
Manday Investments Pty Ltd v Commonwealth Bank of Australia (No 3) [2012] FCA 751
Modra v Victoria [2012] FCA 240; (2012) 205 FCR 445; (2012) 291 ALR 429
Morton v Mitchell Products Pty Ltd (1996) 21 ACSR 497
Oldham v Capgemini Australia Pty Ltd & Anor [2015] FCA 1149; (2015) 241 FCR 397
Oldham v Capgemini Australia Pty Ltd & Anor (No 2) [2016] FCA 1101
Polar Aviation Pty Ltd & Anor v Civil Aviation Safety Authority & Ors [2012] FCAFC 97; (2012) 203 FCR 325
Professional Administration Service Centres Pty Ltd v Federal Commissioner of Taxation [2012] FCAFC 180; (2012) 91 ATR 546; (2012) 295 ALR 52
Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 1 ALD 459; [2008] EOC 93-493
Qualify Me Pty Ltd v Get Me Qualified Australia Pty Ltd [2016] FCA 192
Radisich v McDonald [2010]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ellis v Grill'd Pty Ltd

Details

AGLC: Ellis v Grill'd Pty Ltd [2018] FCCA 3294
Case: [2018] FCCA 3294
Decision Date: 20 November 2018

CaseChat Overview and Summary

In *Ellis v Grill'd Pty Ltd*, the applicant, Ms Ellis, alleged disability discrimination against the respondent, Grill'd Pty Ltd, concerning access to the respondent's premises. Grill'd Pty Ltd applied to the Federal Court of Australia for summary dismissal of Ms Ellis's application, arguing it had no reasonable prospect of success and seeking dismissal under the Court's inherent jurisdiction due to alleged non-compliance with earlier court orders.

The Court was required to determine whether Ms Ellis's application had no reasonable prospect of success, thereby justifying summary dismissal. Additionally, the Court considered whether it possessed the inherent jurisdiction to dismiss the proceedings, and if so, whether the alleged non-compliance with prior court orders warranted such a dismissal.

Judge Lucev applied the test for summary dismissal, which requires a high degree of certainty that the claim is bound to fail. The Court found that the evidence did not establish that Ms Ellis's claim was manifestly untenable or that there was no real prospect of success. Consequently, the application for summary dismissal on the basis of no reasonable prospect of success was refused. The Court also found that the threshold for exercising its inherent jurisdiction to dismiss the proceedings for non-compliance with earlier orders had not been met.

The applications for summary dismissal and dismissal for non-compliance were dismissed.

Orders