Ellis v Junction Group Pty Ltd Trading As v Burger Bar
[2017] FCCA 1045
•16 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v JUNCTION GROUP PTY LTD TRADING AS V BURGER BAR | [2017] FCCA 1045 |
| Catchwords: PRACTICE AND PROCEDURE – Dismissal for non-appearance – where no application to appear other than in person – where applicant aware of necessity to make application to appear other than in person. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05 |
| Cases cited: Ellis v Adventureworld (WA) Pty Ltd as Trustee of The Adventureworld Unit Trust [2016] FCCA 2504 |
| Applicant: | TROY ELLIS |
| Respondent: | JUNCTION GROUP PTY LTD TRADING AS V BURGER BAR |
| File Number: | PEG 243 of 2016 |
| Judgment of: | Judge Lucev |
| Hearing date: | 16 May 2017 |
| Date of Last Submission: | 16 May 2017 |
| Delivered at: | Perth |
| Delivered on: | 16 May 2017 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the Respondent: | Dr KJ O'Toole |
| Solicitors for the Respondent: | James Chong Lawyers |
ORDERS
That the application be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
That the applicant pay the respondent’s costs in the sum of $13,783 by 16 June 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 243 of 2016
| TROY ELLIS |
Applicant
And
| JUNCTION GROUP PTY LTD TRADING AS V BURGER BAR |
Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
The originating application was filed on 31 May 2016. It alleges disability discrimination against the applicant, Mr Ellis, by the respondent, the Junction Group Pty Ltd trading as V Burger Bar.
The orders sought are set out in the originating application, and as best can be made out, are as follows:
1. Public apology and in writing.
2. Install a safe ramp and rail with full disabled access and door.
3. $1 million compensation from public liability insurer for the indecency, stress, time, costs, losses, energy, principle, emotional, hard and stripped of my humanity and human rights.
The originating application has no particulars of any disability suffered by the applicant or how any disability is said to give rise to discrimination in the circumstances of this case. The Court has observed in a number of other cases, for example, Ellis v Kanyana Wildlife Rehabilitation Centre Inc [2017] FCCA 89 at [11]-[12] per Judge Lucev that the failure to particularise in originating applications commenced on the standard human rights form is a consequence of the nature, and arguably the deficiency, of that form rather than any error by applicants who are self-represented litigants.
This matter was referred to mediation, but mediation was unsuccessful and the matter returned to the Court for directions on 21 January 2017, when the Court made the following directions:
1. The applicant file and serve any affidavits in support of the application by 28 February 2017.
2. The respondent file and serve any affidavits in reply to the applicants by 28 March 2017.
3. The applicant file and serve an outline of submissions by 14 April 2017.
4. The respondent file and serve an outline of submissions by 28 April 2017.
5. The matter be listed for hearing at 10.15 am on 16 May 2017.
6. Costs reserved.
The Court notes that those orders were made in Mr Ellis’ absence. Mr Ellis neither appeared in person nor, as is now usual for him for directions hearings, by telephone. As is evident from the orders just read, the matter was listed for hearing with affidavits and submissions to be filed, as is usual in human rights applications in this Court, in advance of the hearing.
The Court notes that the originating application says nothing about the circumstances of the alleged discrimination. There is no when, where, what or how in relation to those circumstances.
The Court also notes that:
a)Mr Ellis has filed a single affidavit affirmed on 22 February 2017, the content of which is limited to two paragraphs as follows:
1 On 7 January 2016 at 5.15 pm, I visited this V Burger Bar and could not access the store due to no disability ramp.
2 V Burger Bar owners and lawyer had no intent at mediation to ever resolve the matter.
b)Mr Ellis has filed no medical evidence of disability, or the extent of any disability relevant to the claim made, which, as might be evident, appears to be a claim that he could not access the premises, which are evidently a food outlet, by reason of a disability.
The respondent has filed various affidavits. It is unnecessary to comment or examine those further at this stage.
Mr Ellis filed an outline of submissions on 3 April 2017 of some eight pages and 52 paragraphs in total. The vast majority of those submissions are irrelevant and many parts of them are scandalous on the usual application of the authorities.
The respondent filed an outline of submissions of 28 April 2017 and in that regard, made submissions to the effect in paragraphs 1, 2 and 8 that there was no cause of action manifested by the originating application, no evidence sufficient to establish a recognisable cause of action, no expert evidence led by the applicant to prove that he was relevantly disabled and no expert evidence as to the state of the premises the subject of the originating application.
The matter was called today. There was no appearance by Mr Ellis in Court. The matter was called outside. There was still no appearance by Mr Ellis and that remains the case as the Court delivers these Reasons for Judgment.
Mr Ellis has filed no application in a case to appear other than in person. Mr Ellis is, or should be, conversant with the requirement to do so. The Court notes that in an earlier case involving Mr Ellis, Ellis v Scentre Shopping Centre Management WA Pty Ltd Trading As Westfield Shoppingtown Carousel Pty Ltd [2017] FCCA 228 at [10] per Judge Lucev (“Scentre Shopping Centre”), the Court observed as follows:
There has been no application in a case filed to have the hearing conducted in another form and the Court refers generally to the provisions with respect to audio and video link hearings under ss.66- 72 of the Federal Circuit Court of Australia Act 1999 (Cth). The Court is also aware that in other matters it has ordered that the applicant be directed to file such an application in a case in relation to final hearings. The Court is also aware that within the last month or so, there has been correspondence directed to the applicant, not in relation to this matter, but other matters in respect to which he has applications indicating to him that the Court would allow him to appear for interlocutory purposes by phone, but not for final hearings and that any final hearing in respect of which he proposed to appear other than in person would require an application in a case supported by affidavit.
The Court notes that the Reasons for Judgment in Scentre Shopping Centre were delivered on 13 February 2017.
In Ellis v Adventureworld (WA) Pty Ltd as Trustee of The Adventureworld Unit Trust [2016] FCCA 2504 at [36]-[44] per Judge Lucev (“Adventureworld”), delivered on 30 September 2016, and in the context of a costs application arising from a non-attendance by Mr Ellis at a listed hearing, the Court drew attention to the relevant legislative provisions and some relevant judgments of this Court and the Federal Court with respect to their requirement to appear in person and the requirement to file an application in a case to appear other than in person, as follows:
In this case the basic factual context is as follows:
the Application had been listed for hearing on 8 March 2016 almost eight months earlier on 14 July 2015;
save for the directions hearing listed on 13 July 2015, Mr Ellis had personally attended in Court at all of the directions hearings and before a Registrar in the mediation in respect of the Application;
Mr Ellis gave no notice to either Adventureworld or to the Court that:
he would not be in attendance in Court at the hearing of his Application on 8 March 2016; and
he would seek to appear on the hearing of his application from a location outside the Court, and by telephone; and
Adventureworld incurred costs in preparing for the hearing, and in appearing at the hearing, including the costs of Counsel being briefed and appearing.
The Court observes that even when orders were subsequently made allowing for Mr Ellis to apply, and to file affidavit evidence in support, of an application in a case to allow him to appear other than in person before the Court on the hearing of the Application, no application in a case, nor any affidavits, have been filed.
The Court further observes that, whilst not impossible, it might be difficult for a hearing of a claim such as that involved in the Application to proceed without Mr Ellis being personally present, particularly given the evident desire of Adventureworld to cross-examine Mr Ellis and put photographs to him. Because Mr Ellis gave no notice that he would not be attending Court at the hearing of his Application on 8 March 2016 it was not possible to, and no steps were taken, to consider the practicability of Mr Ellis appearing from a remote location, and being cross-examined whilst in that remote location.
The Court notes that Mr Ellis asserts an “understanding” about “phone conferencing” in relation to his appearance before the Court, and an “oversight” in that regard.
Mr Ellis has filed no evidence as to the alleged understanding or oversight, and in particular:
with whom the understanding was made, and when it was made;
what the precise nature of the “understanding” was;
how any such “understanding” interacted with the provisions of ss.66 (testimony by video link or audio link), 67 (appearance of persons by video link or audio link), 68 (making of submissions by video link or audio link), 69 (conditions for use of video links and audio links) and 70 (putting documents to a person by video link or audio link) of the FCCA Act; and
the nature of the alleged oversight.
It is fair to observe that Mr Ellis has appeared by telephone at various directions hearings and interlocutory hearings in some of the other matters in this Court referred to at [51] below, but he has not appeared at any final hearing of a matter in this Court by telephone.
As is evident from a consideration of both Ms Kershaw’s Affidavit, and the transcript of the 8 March 2016 hearing, there was no expectation or understanding, on the part of either Adventureworld or the Court, that Mr Ellis would appear other than in person before the Court on the hearing of the Application.
Ordinarily, in respect of a final hearing at which evidence is to be taken, it would require an order of the Court before there could be an expectation or understanding of the kind adverted to by Mr Ellis, with such order issuing following a formal hearing to address the requirements of ss.66-70 of the FCCA Act in respect of the appearance, giving of testimony and making of submissions by a person other than in person before the Court: see, for example, Picos v HealthEngine Pty Ltd & Anor [2014] FCCA 640 at [40]-[71] per Judge Lucev; and in relation to similar provisions in the Federal Court of Australia Act 1976 (Cth), see Commissioner of Taxation v Oswal (No. 5) [2015] FCA 1504 at [24]-[56] per Gilmour J.
Other than at the most general level of submission there is nothing before the Court to indicate any basis for Mr Ellis not to have attended the hearing of the Application on 8 March 2016. The Court notes what is said in the Application concerning Mr Ellis’ inability to navigate steps or to get up and down constantly, but an answer as to the applicant’s requirements when attending Court, is not evidence, and is not sufficient to establish any difficulty in actually attending the Court, either on 8 March 2016 or otherwise. There is simply no evidence as to why it is that Mr Ellis did not attend on 8 March 2016, or, critically, as to the actual nature of his disability and the effect of that disability in relation to his capacity to attend in person before the Court, or, alternatively, why it might make it necessary for him to attend any final hearing of this Application other than in person before the Court. In any event, any suggestion that it was not possible for Mr Ellis to attend Court on the hearing of the Application on 8 March 2016 is vitiated, at least to some degree, by the fact that Mr Ellis attended directions hearings and the mediation in respect of his Application in person in the Commonwealth Law Courts Perth on various dates prior to the 8 March 2016 hearing.
A similar factual position pertains here in relation to the situation where Mr Ellis does not appear. The Court notes that in the originating application, Mr Ellis does advert to the fact that he has difficulty getting up and down steps and also refers to depression that is caused from too much stress and anger. Again, the Court notes there is simply no evidence in relation to those issues and the same factors as are outlined in Adventureworld apply in these circumstances, save to note that Mr Ellis has not, as the Court understands it, appeared in person at the mediation or any directions hearing in this matter.
The Court also notes that this Commonwealth Law Court’s building, at least on the face of it, has a number of disabled accesses. There is no evidence that the building is not accessible by Mr Ellis for the reasons, or to the extent that, he says it is not accessible. There is no evidence as to any arrangements (which, doubtless, can be made) that Mr Ellis has sought to make to gain access to the building.
In the circumstances, the Court having had no contact from the applicant prior to the hearing today in relation to this matter and his mode of appearance, or indicating that he did not intend to appear today, the Court considers that the originating application should be dismissed for non-appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”). The Court takes the view that that approach is appropriate in the circumstances of this case. The Court also bears in mind that this is a disability discrimination claim and that the unexplained absence of an applicant may have many causes and, therefore, considers that it is more appropriate in the circumstances to dismiss for non-appearance than to endeavour to deal with the matter on the merits. Having regard to those considerations and also bearing in mind relevant case management considerations, the Court, in the exercise of its discretion, considers that the matter should not be dismissed outright, but rather be dismissed for non-appearance with costs. The Court notes that if there is a legitimate reason for Mr Ellis’ non-attendance today, he can make an application pursuant to r. 16.05 of the FCC Rules to set aside any orders made today. So there will be an order accordingly with respect to the dismissal for non-appearance pursuant to r.13.03C(1)(c) of the FCC Rules.
In the circumstances, the Court considers that costs are appropriate, and should be awarded under the Court’s costs schedule, so the Court will make an order that the applicant pay the respondent’s costs in the sum of $13,783 by 16 June 2017.
There will be orders as the Court has indicated.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 18 May 2017
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