Ellis v Kanyana Wildlife Rehabilitation Centre Inc
[2017] FCCA 2028
•9 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v KANYANA WILDLIFE REHABILITATION CENTRE INC | [2017] FCCA 2028 |
| Catchwords: HUMAN RIGHTS – Application by respondent to summarily dismiss proceedings – initial statement of claim struck out on previous occasion – orders made allowing applicant to file further statement of claim – claims not advanced by applicant – claim lacks identification of disability or how the discrimination is based on a particular disability – principal of finality – vexatious litigant – grounds untenable – application dismissed – order for costs in favour of respondent. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), s.46PO(3) Federal Circuit Court of Australia Act 1999 (Cth), ss.17A, 88Q, Pt.6B |
| Cases cited: Attwells v Jackson Lalic Lawyers (2016) 90 ALJR 572; [2016] HCA 16 Ellis v Swan Taxis Pty Ltd [2017] FCCA 1795 Quach v Health Care Complaints Commission (NSW) (No.3) [2016] NSWCA 284 |
| Applicant: | TROY ELLIS |
| Respondent: | KANYANA WILDLIFE REHABILITATION CENTRE INC |
| File Number: | PEG 359 of 2014 |
| Judgment of: | Judge Smith |
| Hearing date: | 9 August 2017 |
| Date of Last Submission: | 9 August 2017 |
| Delivered at: | Perth |
| Delivered on: | 9 August 2017 |
REPRESENTATION
| No appearance by or for the applicant. |
| Counsel for the Respondent: | Ms M Saraceni |
| Solicitors for the Respondent: | Archon Legal |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs fixed in the amount of $4,010.50.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 359 of 2014
| TROY ELLIS |
Applicant
And
| KANYANA WILDLIFE REHABILITATION CENTRE INC |
Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
This is an application for an order summarily dismissing proceedings brought by the applicant, Mr Troy Ellis. The proceedings were commenced by application on 3 December 2014. Mr Ellis did not appear at the hearing today and it is pertinent to describe the circumstances leading to that fact.
It appears from a number of matters in which Mr Ellis is an applicant in proceedings before this Court that he has on many occasions appeared at hearings by telephone, sometimes known as an audio link.
On 7 August 2017, the registry of the Court wrote to the parties in the following terms:
Judge Smith has confirmed that all parties are required to attend in person the interlocutory hearing on Wednesday, 9 August 2017 at 10:15 am in Hearing Room 6.2, Level 6, 1 Victoria Ave, Perth.
At 10:15pm that day, Mr Ellis replied to that email addressing himself to the Associate to Judge Street. That address was corrected in a subsequent email. The terms of the email dated 7 August 2017 from Mr Ellis were:
I require, as before and always with this particular case and all other cases at the PERTH FEDERAL COURT, an AUDIO LINK at all times.
I cannot attend in person due to the nature of my severe fall disability as it is far too dangerous and a logistical nightmare for me to attend that particular location, due to the actual street outlay and its location.
Yours sincerely
(Emphasis in original)
The following day, the Registry of the Court replied to Mr Ellis’ email as follows:
The Judge has confirmed that you may appear by telephone only if you file with the Court today a medical certificate outlining your medical issues and why these prevent you from attending the hearing. This medical certificate is also to be served upon the respondents.
(Emphasis in original)
Mr Ellis, it appears, was not happy with that response from the Registry. He expressed his discontent in an email at 9:37am on 8 August 2017 addressing himself again to the Associate as follows:
…
Another unnamed, lying, sleazy, idiot and corrupt criminal at the Perth Court Registry is playing me around with this case, talking crap that I have to apply for the very same AUDIO LINK process into this case on 10 AUGUST 2017.
Unacceptable and I will not be forced to go through this hell yet again by another MORONIC PUBLIC SERVANT or any ASSOCIATE or JUDGE Thank you very much.
If I do not receive an AUDIO LINK on THURSDAY 10 AUGUST, there will be trouble for you all, as I will lodge HIGHER COURT complaints and go to INTERNATIONAL COURTS if this criminality and stupidity continues on and on.
THIS IS SICK AND LITTLE KID REVENGE TACTICS AND THIS COURT WILL NOT GET AWAY WITH THIS.
Yours sincerely
(Emphasis in original)
Mr Ellis, seemingly not content with the extent or nature of that reply, sent a further email one minute later on 8 August 2017 at 9:38am:
NO I WON’T AND DON’T HAVE TO DUMB DUMB!
MAYBE WHEN I FIND OUT WHO YOU ARE, YOU WILL HAVE TO WRITE TO THE ATTORNEY GENERAL BEGGING FOR YOUR JOB TOO THEM.
THIS SICK CRAP ENDS NOW!
It goes without saying that that correspondence discloses a number of things about Mr Ellis, most of which need not be expressed in this judgment. One thing however, does require comment and that is Mr Ellis’ attitude towards this Court and his apparent sense of entitlement to treat the Court in any manner he sees fit. Not only should I say the Court, but its officers, both in the Registry and in the chambers of its Judges.
This is not the first time Mr Ellis has seen fit to correspond with the Court in this fashion by email. He did so with Judge Street and his chambers: see Ellis v Swan Taxis Pty Ltd [2017] FCCA 1795. Mr Ellis does not stop there though. It appears that he is willing to treat the Court with similar contempt, face to face.
On one occasion, he appeared before Judge Lucev in the matter of Ellis v Rottnest Lodge (1989) Pty Ltd (t/as Rottnest Lodge) (No.2) [2017] FCCA 190. The transcript of what occurred in an interlocutory hearing in that matter before Judge Lucev appears at [6] of his Honour’s reasons: see Rottnest Lodge. On that occasion, Mr Ellis again appears to have been unhappy with something that had occurred in Court and completed his submissions to the Court addressing the Judge in the following manner:
…
Are you completely corrupt or just incompetent or just don’t give a shit? I’m not interested. Fuck off.
Mr Ellis has shown a similar disrespect to practitioners and parties. I am informed by Counsel appearing for the respondent today, that Mr Ellis is, or has been, an applicant somewhere in the vicinity of three dozen matters before this Court. I am not currently apprised of either the basis for each of those applications or the outcome, if any, of them.
However, it appears to me, that it is strongly arguable that Mr Ellis, not only in his conduct towards the Court and its officers, the other parties and their representatives, but also in the number of applications and type of applications that he brings before the Court to have been vexatious in his actions potentially within pt.6B of the Federal Circuit Court of Australia Act 1999 (Cth) (Act). That Part provides power for making vexatious proceedings orders which have the effect, briefly stated, of preventing vexatious proceedings from being commenced rather than dealing with them once they have been commenced: s.88Q of the Act.
Another method by which the Court can deal with vexatious litigants is by what has become known in New South Wales as Teoh orders. I need not go into to discuss those orders in any detail. They have recently been the subject of explanation by the Court of Appeal in the Supreme Court of New South Wales in the case of Quach v Health Care Complaints Commission (NSW) (No.3) [2016] NSWCA 284. Those matters may be left to one side for the moment. There is no current application before the Court for there to be any finding under pt.6B of the Act and any consideration of such a finding ought to be made once Mr Ellis has had the opportunity to address that possibility.
Consideration
There remains before me an application for summary dismissal of this application. I mentioned earlier that the application was filed on 3 December 2014. There was subsequently an application brought by the respondent in light of the paucity of detail contained in that application. However, Mr Ellis was given the opportunity of addressing that lack of detail by being given liberty to amend the statement of claim. He did so on 23 February 2015. Once again, however, that statement of claim was not particularly well drafted.
Consequently, there was an application once again by the respondent to have either the statement of claim struck out or the proceedings dismissed. That application was heard by Judge Lucev and on 24 January 2017, his Honour made the following orders:
1.The applicant’s Statement of Claim filed 21 February 2015 be struck out.
2.The applicant have leave to file and serve a Further Statement of Claim by 4.00pm on 28 February 2017.
…
4.The applicant pay the respondent’s costs in the sum of $4010.50 by 28 February 2017.
I will return to Judge Lucev’s reasons for his judgment in due course. On 20 February 2017, Mr Ellis filed a further document headed Statement of Claim. That document consisted of a number of medical certificates which could have no bearing on this matter. The medical certificates all referred to the condition suffered by Mr Ellis between September 2016 and January 2017, well after the events which apparently were the subject of these proceedings.
The second part of the document was a copy of the statement of claim which had been struck out by Judge Lucev. I will return to that document. The third document, this time a typed document, is a long series of statements and allegations made by Mr Ellis, which again appear to have nothing to do with the facts claimed in the statement of claim itself. There are some very serious and slanderous statements made in that statement, which are of a worse nature than those made in the emails which I have set out above.
Of some note, at [12] of that typed document is the following statement:
This claim is also about setting a PRECEDENT and bringing about the introduction of FEDERAL DISABILITY HATRED LAWS, the true and real reason why I am here in the courts these days and the reason why I should be paid for suffering, costs and immense time losses.
Otherwise, the statements made in those claims do not advance Mr Ellis’ claims at all. That leaves, in effect, the state of the proceedings as being that the applicant has simply sought to rely upon the same statement of claim that was struck out by Judge Lucev. That, in and of itself, constituted an abuse of process.
It is a central and pervading tenet of the judicial system, often referred to as the principal of finality, that controversies, once resolved are not to be re-opened, except in a few narrowly defined circumstances: see D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [34]; [20015] HCA 12 (Gleeson CJ, Gummow, Hayne and Heydon JJ); Attwells v Jackson Lalic Lawyers (2016) 90 ALJR 572 at [30]; [2016] HCA 16 (French CJ, Kiefel, Bell, Gageler and Keane JJ).
Judge Lucev struck out the applicant’s statement of claim essentially for two reasons. The first is that the claim was affected by sub-s.46PO(3) of the Australian Human Rights Commission Act 1986 (Cth), which provides:
(3)The unlawful discrimination alleged in the application:
(a)must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b)must arise out of the same, or substantially the same, acts, omissions or practices that were the subject of the terminated complaint.
Terminated complaint refers to a complaint brought before the Australian Human Rights Commission.
As explained by Judge Lucev in Ellis v Kanyana Wildlife Rehabilitation Centre In [2017] FCCA 89 at [44]:
…[t]he unlawful discrimination alleged in the Statement of Claim is not the same as the unlawful discrimination the subject of the AHRC Complaint, and nor does it arise out of the same, or substantially the same, acts, omissions or practices that were the subject of the AHRC Complaint.
For that reason, these proceedings are hopeless and ought to be dismissed.
However, there was a further reason for Judge Lucev’s decision to strike out the original statement of claim.
As his Honour explained at [48] and [49], the statement of claim does not disclose a case of disability discrimination, by reason of the fact that it does not identify the applicant’s disability, or identify how the alleged discrimination is based on the particular disability. That is, that the applicant was discriminated against because of a disability. In my view, for those two reasons, there was never any reasonable prospect of success in them, and so gives rise to the power of the Court to summarily dismiss the proceedings under s.17A of the Act.
Unlike the original statement of claim, there is now an allegation of certain conditions said to have been suffered by Mr Ellis. To that extent, the current state of the pleadings is different to those which were before Judge Lucev. Nevertheless, there remains the fact that there is no stated connection between that disability and the discrimination said to have been engaged in by the respondent. That is a fatal flaw in the proceedings. Without such a connection, the proceedings cannot succeed.
In my view, these proceedings were not only an abuse of process because they were hopeless, and because they were brought for an ulterior purpose as expressed in [12] of Mr Ellis’ attachment to his statement of claim, but also because they are vexatious as being so obviously untenable, or manifestly groundless, as to be utterly hopeless and brought for collateral purposes and not for the purpose of having the Court adjudicate on the issues to which they give rise.
For those reasons, the application will be summarily dismissed.
It seems to me that my conclusion is fortified by the fact that Mr Ellis refuses to come to Court to address the Court face to face, in circumstances where he is also unwilling to provide a medical certificate to establish his inability to do so.
This is a case in which it is also appropriate to make an order for costs in favour of the respondent.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 28 August 2017
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