Ellis v Left Bank Holdings Pty Ltd
[2017] FCCA 90
•24 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v LEFT BANK HOLDINGS PTY LTD | [2017] FCCA 90 |
| Catchwords: HUMAN RIGHTS – Disability discrimination – access to premises – provision of goods, services and facilities – refusal of access with assistance animal. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), ss.46PH, 46PO |
| Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639; (2007) 210 FLR 314 Chang v CST Minerals Lady Annie Pty Ltd [2015] FCA 620 Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573; (2000) 105 IR 153 Ferrus v Qantas Airways Ltd [2006] FCA 812; (2006) 155 IR 88 Gallagher v BHP Billiton Nickel West Pty Ltd & Anor [2016] FCCA 3367 |
| Applicant: | TROY ELLIS |
| Respondent: | LEFT BANK HOLDINGS PTY LTD TRADING AS LEFT BANK BAR & CAFÉ |
| File Number: | PEG 487 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 11 March 2016 |
| Date of Last Submission: | 11 March 2016 |
| Delivered at: | Perth |
| Delivered on: | 24 January 2017 |
REPRESENTATION
| For the Applicant: | No appearance |
| For the Respondent: | Ms C Sluiter |
| Solicitors for the Respondent: | Allion Legal |
ORDERS
By 28 February 2017, the Applicant do file and serve:
(a)a statement of claim setting out the basis of his claim against the Respondent; and
(b)any affidavits in support of his statement of claim.
The matter be adjourned to 3.15pm on 3 March 2017 for further directions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 487 of 2015
| TROY ELLIS |
Applicant
And
| LEFT BANK HOLDINGS PTY LTD TRADING AS LEFT BANK BAR & CAFÉ |
Respondent
REASONS FOR JUDGMENT
Introduction
By an application in a case filed on 26 November 2015 (“Application in a Case”) the respondent, Left Bank Holdings Pty Ltd trading as Left Bank Bar & Café (“Left Bank Holdings”) seeks certain procedural orders in relation to these proceedings.
The originating application filed by the applicant, Mr Troy Ellis (“Mr Ellis”) on 25 October 2015 (“Originating Application”) alleges that Left Bank Holdings Pty Ltd discriminated against Mr Ellis on the basis of a disability alleged by Mr Ellis.
The orders sought in the Originating Application are handwritten and in parts illegible, and in other parts difficult to make out. Further, in part they do not set out orders sought, but rather make statements or assertions of alleged fact. As best the Court can make them out, the orders sought and comments made are as follows:
a)an apology in writing for Mr Ellis and his elderly mother for defamation of character, disabled hatred, violent intimidation and aboriginal racist remarks, alleging that Mr Ellis suffered indignity, intimidation and unprofessional disabled hatred;
b)$100,000 for not allowing Mr Ellis, as a disabled person with an assistance animal, into the premises;
c)allowing a drunken patron to violently intimidate and abuse Mr Ellis over his assistance dog and disabled issues;
d)security staff intimating defamation to HREOC about Mr Ellis’ “nature + personal”;
e)ignorant of disability assistance dogs; and
f)security staff on site that night all fired and guard licences revoked.
The claim is alleged to be one of disability discrimination, and is said to be made under the Disability Discrimination Act 1992 (Cth) (“DD Act”), but quotes s.46PH(2) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”), rather than any provisions of the DD Act as being relevant to the claim. The grounds of application set out in the Originating Application do not disclose the disability alleged to be suffered by Mr Ellis, or why it is that discrimination was suffered because of that disability, and there is otherwise no statement or points of claim, or setting out of the material facts of any relevant conduct alleged to be in contravention of the DD Act. The Court, as presently constituted, has elsewhere criticised the form and lack of utility of the application form used for human rights applications in this Court particularly when used by self-represented litigants insofar as it does not actually require applicants to set out the detail of their claims: Ellis v Kanyana Wildlife Rehabilitation Centre Inc [2017] FCCA 89 at [11]-[12] per Judge Lucev (“Kanyana Wildlife”).
A copy of a letter of termination of Mr Ellis’ complaint to the Australian Human Rights Commission (“AHRC” and “AHRC Complaint”) is attached to the Originating Application. The content of the AHRC Complaint forms no part of the Originating Application, or any relevant pleading, save for the purposes of ascertaining whether or not the Originating Application is in relation to substantially the same alleged acts of discrimination as was the AHRC Complaint: Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573; (2000) 105 IR 153 at [37]-[41] per Katz J; Dye v Commonwealth Securities Ltd (No.2) [2010] FCAFC 118; (2010) 63 AILR 101-302 at [46]-[48] and [50] per Marshall, Rares and Flick JJ; Kanyana Wildlife at [27]-[29] per Judge Lucev.
Left Bank Holdings’ Response opposes the making of any orders for an apology, compensation, pecuniary penalties or other orders sought in the application. The grounds of opposition to the orders sought by Mr Ellis are as follows:
1.The Respondent’s conduct was not in contravention of the Australian Human Rights Commission Act 1986.
2.The Applicant was not discriminated against due to a disability.
3.Despite a request from the Respondent, the Applicant was unable to provide any evidence that the Applicant’s dog was an assistance animal.
4.The Applicant’s dog was denied entry to the Respondent’s premises in accordance with their policy which states that only bona fide assistance dogs are permitted to enter the Respondent’s premises. The Applicant was advised of this in a polite and respectful manner.
5.The Applicant was advised that he could sit in an area of the Respondent’s premises which allowed him to retain a clear line of sight to his dog.
6.The Applicant has failed to demonstrate any basis on which he could be entitled to relief under the stated statute, or at all.
The Application in a Case
At the hearing of the Application in a Case Left Bank Holdings agreed not to pursue proposed orders 2, 5, 6, 7 and 9 in the Application in a Case, and further agreed that any further hearing of the matters to which those proposed orders relate could be adjourned to another time.
Left Bank Holdings therefore sought only the following orders:
1. By 3 February 2016, the Applicant do file and serve:
a. a full Statement of Claim setting out the basis of his claim against the Respondent; and
b. any Affidavits in support of his Statement of Claim.
3. By 10 February 2016, pursuant to section 45(1) of the Federal Circuit Court of Australia Act and rules 10.01(3)(i) and 14.02 of the Federal Circuit Court Rules 2001 (Cth), the Applicant do:
a. Provide specific disclosure, verified by Affidavit, of all:
i. medical reports, evaluations, assessments, treatment plans, physical and/or mental 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
ii. licenses, letters, approvals or other documents evidencing the existence and identity of any assistance dog or animal assigned to the Applicant at the time of the incident the subject of the Applicant's Statement of Claim; and
b. Produce the disclosed documents to the Court Registry.
4. The Respondent do have leave to inspect the produced documents at the Court Registry.
10. Costs be reserved.
An affidavit in support of the Application in a Case by Left Bank Holdings was filed by Carly Sluiter, a solicitor, engaged as Special Counsel and employed by Allion Legal, who are the solicitors for Left Bank Holdings in these proceedings (“Ms Sluiter’s Affidavit”).
Ms Sluiter’s Affidavit annexes a copy of a letter sent by Ms Sluiter to Mr Ellis on 25 November 2015 which is relevantly in the following terms:
Statutory Provisions Relevant to your Application
Your Application alleges unlawful discrimination under section 46PO of the Australian Human Rights Commission Act 1986 (Cth). Section 46PO of that Act provides for a complainant to commence proceedings in the Federal Circuit Court in respect of a terminated complaint.
Part B of your Application states that you complain of disability discrimination under the Disability Discrimination Act 1992 (Cth), and that the relevant section of that Act is 46PH(2). There is no section 46PH(2) of the Disability Discrimination Act. Please inform us of the specific section(s) of the Disability Discrimination Act relevant to your Application and in respect of which you allege that there has been unlawful discrimination by Left Bank Holdings against you.
Documents in Support of your Application
In addition, your Application does not appear to state the disability you claim to suffer from, or to have suffered from at the time of the incident the subject of your Application and in respect of which you claim to have been discriminated against. I note that there is reference, in Part C of your Application, to your poor health, depression and that you cannot attend Court because the street access is not good enough.
I am instructed by Left Bank Holdings that, on the date of the incident the subject of your Application, being 7 August 2015, you walked up to security staff at the entrance to the Left Bank Bar & Cafe and informed them that you suffered from post-traumatic stress disorder. I am further instructed that there was no physical disability noticed by, or brought to the attention of, the staff to whom you spoke but that you informed staff that you needed to be accompanied inside the venue by your disability assistance dog. I am instructed that you were not, at the time, able to produce identification for the dog that you informed staff was your disability assistance dog and informed staff that you had left that identification at home.
In the circumstances, in order to assist Left Bank Holdings to properly understand the nature of your alleged disability and the discrimination you allege in respect of it, please provide us with:
1.a full Statement of Claim, setting out the basis of your claim against Left Bank Holdings;
2.any affidavits in support of your Statement of Claim; and
3.copies of the following documents:
a.all medical reports, evaluations, assessments, treatment plans, physical and/or mental examination reports, Disability Support Pension Medical Reports, job capacity assessments or similar documents in you possession, power, custody or control evidencing the nature and extent of the disability you allege in these proceedings and relevant to your Application; and
b.licenses, letters, reports, approvals or other documents evidencing the existence and identity of any assistance dog or animal assigned to you at the time of the incident the subject of your Application.
In view of the directions hearing listed in your Application on 23 December 2015, please provide us with these documents as soon as possible and in any event by that date.
If you are not able to provide us with these documents by 23 December 2015, an application will be made on behalf of Left Bank Holdings at the directions hearing for provision of them.
Ms Sluiter says that she believes that the provision of the information requested from Mr Ellis:
a)is, or is likely to be, uniquely within Mr Ellis’ possession, custody or power;
b)is not information already within the knowledge or possession of Left Bank Holdings;
c)is not information that Left Bank Holdings is, or is likely to be, able to obtain independent of Mr Ellis, or at least without his written consent;
d)will assist Left Bank Holdings in being able to more fully consider Mr Ellis’s claim and its position in relation to it; and
e)will assist the parties, and the Court, to achieve a more expeditious resolution to the proceedings.
Ms Sluiter’s Affidavit annexes a copy of the reply email from Mr Ellis to Ms Sluiter on 25 November 2015. That email is in the following terms:
I DO NOT HAVE TO PROVIDE YOU WITH ONE SINGLE THING.
I DO NOT APPRECIATE READING MORE LIES ABOUT ME, FROM THE VERY SAME EVIL LAW FIRM WHO IS FIGHTING ME ALREADY.
TELL THOSE LIARS AT THE LEFT BANK FOR PERJURING THEMSELVES I WILL HAVE THEM ALL JAILED, AS I HAVE MANY WITNESSES TO WHAT TRANSPIRED, THE RACIST, DISABLED HATING, BULLYING WORMS THAT THEY ARE.
I KNOW WHY THEY HIRED YOU AS YOU ARE ALL-LION ALRIGHT.
Consideration
Mr Ellis’ Originating Application seemingly complains of unlawful discrimination under the DD Act. The reference to s. 46PH(2) is no doubt a reference to s.46PH(2) of the AHRC Act, which relates to the requirement that the President of the AHRC notify a complainant in writing of a decision to terminate a complaint to the AHRC, and the reasons for that decision.
The limited information contained in the Originating Application suggests that Mr Ellis’ allegations of disability discrimination arise from one or other of ss.23, 24 and 39 of the DD Act, relating to discrimination in access to premises, the provision of goods, services and facilities, and the access of an assistance animal to premises. The Court notes that s.54A of the DD Act provides that ss.23, 24 and 39 of the DD Act do not render it unlawful for a person to:
a)request that the person with the disability produce evidence that any animal with them is an assistance animal and is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place; and
b)discriminate against the person with the disability on the ground that that person has the assistance animal, if the person is unable to produce evidence that the animal is an assistance animal, and that the animal is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.
The intent of the orders sought by Left Bank Holdings is to:
a)clarify the true nature of the Mr Ellis’ substantive application and have it set out in a cogent statement of claim;
b)put Left Bank Holdings in a position to respond to Mr Ellis’ claims; and
c)have Mr Ellis produce documents that:
i)go specifically to establishing that he had, at the time of the discrimination alleged:
1. a disability; and
2. a disability assistance animal (dog) within the meaning of the DD Act;
ii)are likely to be uniquely in his possession, custody or power;
iii)are of a nature that are likely to be relied upon by Mr Ellis in support of his claims and to be of assistance to the Court in making any determination; and
iv)if they exist, are likely to assist in the expeditious resolution of relevant issues.
Mr Ellis’ Originating Application fails to provide any detail as to his disability, or as to the basis upon which he claims to have suffered discrimination because of his disability. The Originating Application leaves it unclear as to what specifically is alleged against Left Bank Holdings and what is claimed. When Left Bank Holdings’ lawyers asked for additional information, Mr Ellis responded by stating that “[he did] not have to provide [the Respondent/Allion Legal] with one single thing.”: Ms Sluiter’s Affidavit at [3] and [7] Annexures 1 and 2, pp.6-7 and 9.
Any statement of claim filed by Mr Ellis must set out the fact of any disability that he has upon which he relies for the purposes of these proceedings, and the extent of that disability so far as it is relevant to these proceedings, and the existence and identity of any assistance dog or animal that he uses in relation to the disability.
The Court notes that Mr Ellis is required to set out the disability relied upon in relation to the alleged discrimination, and to specify why it is that the alleged discrimination was because of his disability: Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92; (2003) 78 ALJR 1; (2003) 202 ALR 133; (2003) 77 ALD 570; [2004] EOC 93-305; Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 101 ALD 459; [2008] EOC 93-493 at [90]-[91] per French and Jacobson JJ (“Gama”). Although the Originating Application contains a reference to Mr Ellis having depression, this is not in the context of the events alleged to constitute the discrimination by Left Bank Holdings, and it is not apparent that it is this disability that is relied upon in relation to the alleged discrimination.
The Court also notes that Mr Ellis bears the onus of proof generally in relation to his claim: Ferrus v Qantas Airways Ltd [2006] FCA 812; (2006) 155 IR 88 at [48] per Collier J; Vassollo v Jetswan Pty Ltd [2010] FMCA 708 at [20] per Lloyd-Jones FM (“Jetswan”) (and cases there cited), save where a person against whom indirect discrimination is alleged has to prove that a requirement or condition imposed which must be complied with by the person alleging discrimination is reasonable: DD Act, s.6; Jetswan at [20] per Lloyd-Jones FM (and cases there cited). The Originating Application is devoid of relevant material facts as to what occurred to constitute the alleged discrimination on the ground of disability. Although this is a claim which does not have to be “pleaded” in the traditional sense, it remains the case that there must be a sufficient degree of specificity of the material facts so as to define the issues and inform Left Bank Holdings in advance of the case it has to meet: Chang v CST Minerals Lady Annie Pty Ltd [2015] FCA 620 at [19]-[21] per Mortimer J (albeit a case in the context of pleadings in a sex discrimination case). The Originating Application does not sufficiently specify the material facts so as to inform Left Bank Holdings of the case that it has to meet. The AHRC Complaint cannot be relied upon for these purposes as it forms no part of the Originating Application or any relevant pleading: see the authorities cited at [5] above.
In all of the above circumstances, Left Bank Holdings is entitled to know what case it has to meet. The Originating Application does not meet that requirement. In order to meet that requirement it is necessary that there be a statement of claim filed by Mr Ellis, and in the circumstances, it would be appropriate that he also file affidavits in support of the statement of claim so that as much of the relevant factual material is before the Court, and available to Left Bank Holdings to respond to, as early as possible. There will therefore be an order that Mr Ellis file and serve a statement of claim and affidavits in support of his statement of claim by 28 February 2017.
Section 45 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) provides as follows:
Interrogatories and discovery
(1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Circuit Court of Australia unless the Federal Circuit Court of Australia or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(2) In deciding whether to make a declaration under subsection (1), the Federal Circuit Court of Australia or a Judge must have regard to:
(a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b) such other matters (if any) as the Federal Circuit Court of Australia or the Judge considers relevant.
Rule 14.02 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides:
Declaration to allow discovery
(1) A declaration may be made under subsection 45(1) of the Act to allow discovery on the application of a party or on the Court’s own motion.
(2) If a declaration is made, the Court or a Registrar may make an order for disclosure:
(a) generally; or
(b) in relation to particular classes of documents; or
(c) in relation to particular issues; or
(d) by a specified date.
Rule 14.10(1) of the FCC Rules provides that:
If a document or affidavit filed by a party refers to another document, another party may request the party in writing for a copy of the document or to produce it for inspection.
Rule.14.10(2) of the FCC Rules provides that:
(2) The party requested to provide a copy of, or produce, a document must, within 4 days of the request, in writing to the party making the request:
(a) provide a copy of the document or appoint a time within 7 days, and a place where, it may be inspected; or
(b) claim that the document is privileged from production and state the grounds; or
(c) state that the document is not in his or her possession, custody or power and state his or knowledge, information or belief about its whereabouts.
Rule 15.28(1) of the FCC Rules provides that:
A document to be used in conjunction with an affidavit must be annexed to the affidavit.
In relation to r.14.10 of the FCC Rules the Court made the following observations in Faulkner v Tidewater Marine Australia Pty Ltd (No.3) [2016] FCCA 2918 (“Faulkner (No.3)”) at [30]-[34] per Judge Lucev:
30. It is convenient to begin with a discussion of r.14.10(1) of the FCC Rules. Like the former Federal Court rule, O.15 r.10(1) of the Federal Court Rules 1976 (Cth) it refers to an affidavit which “refers” to another document.
31. For relevant purposes “refer” means:
To send or direct (a person) to a person, a book or its author for information
The Shorter Oxford English Dictionary on Historical Principles (Oxford: Clarendon Press, 1973) page 1776.
32. In Flick, Federal Court Practice (accessed online at at FCR 20.31.60 the learned author observes as follows:
There is little authority on the question as to when a pleading or affidavit “refers to” a document. In King v GIO Australia Holdings Ltd (2001) FCA 1487 Moore J cited Smith v Harris (1883) 48 LT 869. The pleadings there spoke of “invoices, letters, bill heads, and brands on casks”. A notice was served seeking the production of those documents. The application was resisted by the plaintiff on the basis that the rule operated only on documents which were identified in the pleadings or particularly described. Chitty J rejected this submission and concluded:
It is said, that that is only a general reference to documents, but, in my opinion, that is both a general reference and also a special reference to each and every bill head and each and every letter; because the plaintiff, instead of setting out each document separately, refers to them compendiously, but that is no reason why inspection should not be allowed.
In Betfair Ptv Ltd v Racing New South Wales (No 2) [20091 FCA 195 at [11] it was said that Federal Court Rules O 15 r 10 was intended to give the opposite party the same advantage, with respect to documents referred to in pleadings or an affidavit, as if the documents were set out in the pleading or affidavit. It was there not necessary to decide whether a notice to produce issued under Federal Court Rules O 15 r 10(1) could be set aside on the ground that the applicant already had the documents requested in its possession, custody or power and that production would thereby be futile or oppressive : at [16]. Perram J there observed that there is “a forensic benefit in being able to review a document relied upon by another party even [though] that party may believe it is the same as a document that is already held by the first party”.
33. The Court agrees with the thrust of submissions made by Tidewater that the requirement in r.14.10(1) of the FCC Rules for a document to be referred to requires that document to be, at the very least, mentioned in the relevant affidavit. A document the existence of which it is necessary to imply from a consideration of the text of an affidavit is not a document referred to in the affidavit.
34. Because of the use of the word “must” in r.14.10(2) of the FCC Rules where, as here, the request has been made to provide a copy of or produce the document referred to in one of the categories of document referred to in an affidavit referred to in the application in a case, as set out above, then it is mandatory for a copy of that document to be provided to the party requesting it, or for it to be produced for inspection as requested. This is because the use of “must” ordinarily imports a mandatory requirement: Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186; (2012) 259 FLR 447; (2012) 219 IR 208; (2012) 64 AILR 101-563 at [23]-28] per Lucev FM (“Pitrau”), and the High Court, Full Court of the Federal Court, South Australian Supreme Court and Federal Magistrates Court of Australia cases there referred to, save where, in respect of Court Rules, compliance may be dispensed with: Burrell v Reavill Farm Pty Ltd & Ors [2014] FCCA 1449; (2014) 286 FLR 310. In this case there is no basis for dispensing with compliance with the provisions of r.14.10 of the FCC Rules, and indeed, such dispensation is not sought.
In relation to r.15.28 of the FCC Rules the Court said in Faulkner (No.3) at [38] and [42] per Judge Lucev as follows:
38. In relation to the provisions of r.15.28(1) it is again the case that there is a mandatory requirement, because of the use of the word “must”: see [34] above, that a document to be used “in conjunction with” an affidavit must be annexed to that affidavit. Again, dispensation from the effect of the rule is not sought in this case.
42. On the face of it, the consequence of the failure to annex a document to an affidavit is that the document cannot subsequently be used in conjunction with the affidavit at hearing. It is unnecessary to finally determine that issue presently, as the Court can only assume that those documents which Tidewater wishes to use in conjunction with the affidavits filed on its behalf are presently annexed to the affidavits. The Court does not presently know what, if any, other documents Tidewater will seek to use in conjunction with the affidavits at hearing, or whether Mr Faulkner will object to any documents not presently annexed to affidavits, being used by Tidewater. Those are issues for hearing.
The relevant considerations to be taken into account in determining whether to make a declaration that it is in the interests of the administration of justice to order discovery were summarised in Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639; (2007) 210 FLR 314 at [25]-[26] per Lucev FM as:
25. In summary, it appears that in order to obtain an order for discovery in this Court the Court must determine on the available evidence that it is in the interests of the administration of justice to do so, and in making that determination must have regard to whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings, and such other matters as the Court considers relevant. Those other matters might include:
(a)the relevance of any documents sought to be discovered;
(b)the volume of documents sought to be discovered;
(c)whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;
(d)whether discovery would narrow the issues;
(e)whether both parties seek discovery;
(f)whether there is consent to discovery;
(g)whether discovery is “of benefit” in the litigation; and
(h)the effect of discovery on litigants, especially, vulnerable litigants.
26. The categories of relevant factors for the purposes of s.45(2)(b) of the FM Act are obviously not closed.
In Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116 (“Hartnett Legal Services”) the Federal Court dealt with the issues of relevance and disclosure generally for the purposes of s.45 of the FCCA Act and r.14.02(2) of the FCC Rules, and observed at [33]-[35] per Rangiah J that:
33 Fourthly, it would be quite inconsistent with s 45 of the FCC Act to construe “disclosure generally” as importing a wide test of relevance. The Peruvian Guano test was formulated on the basis of a desire to “make the rule as large as we can with due regard to propriety”: Peruvian Guano at 63. In contrast, s 45 operates to cut down the circumstances in which discovery may be ordered. It would be inconsistent with s 45 to interpret “discovery generally” as referring to the traditional test for discovery when, as Lucev FM observed in Abrahams, traditional discovery is generally prohibited in the Federal Circuit Court.
34 In summary, an order for “disclosure generally” under r 14.02(2)(a) of the FCC Rules is:
“(a) limited to disclosure of documents that are, or have been, in the disclosing party's possession, custody or control; and
(b) limited to documents that are directly relevant to the issues raised by the pleadings or in the affidavits.”
35 That is not to say that it is beyond the power of the Court to make a more expansive order where it is in the interests of the administration of justice to do so, but no such order was made in this case.
In Gallagher v BHP Billiton Nickel West Pty Ltd & Anor [2016] FCCA 3367 at [42] per Judge Lucev this Court observed that discovery under s.45 of the FCCA Act is not traditional discovery, but a pared back version thereof: Hartnett Legal Services at [33] per Rangiah J.
Essentially, what is sought by Left Bank Holdings in these proceedings by way of discovery is discovery of two specific categories of documents, one related, broadly speaking to the existence and extent of Mr Ellis’ disability, and the other related to the existence and identity of any assistance dog or animal for Mr Ellis, broken down into a number of sub-categories.
In light of the order to be made: see [20] above and [36(a)] below, that Mr Ellis file a full statement of claim setting out the basis of his claim and any affidavits in support of his statement of claim it is not immediately apparent that discovery of any kind will be necessary. If Mr Ellis is to establish that he has a disability, and the relevant extent of that disability, it will be necessary for him to file evidence from a specialist medical practitioner deposing to his disability, and the relevant extent of his disability: as to the duty to the Court and form of expert evidence see FCC Rules, r.15.07. It will also be necessary for Mr Ellis to depose to the fact of his disability, its effect upon him, and why he is required to use an assistance dog, with particular reference to the circumstances of this case.
For reasons set out above, if Mr Ellis in his statement of claim or affidavit, or another person, such as a specialist medical practitioner, in an affidavit:
a)refers to a document in the statement of claim or affidavit, then that document may be the subject of a request in writing by Left Bank Holdings for a copy to be provided, or for it to be produced for inspection, and the copy must be provided or the document must be produced for inspection; and
b)any document to be used in conjunction with an affidavit must be annexed to the affidavit, otherwise there would be a risk that the document could not subsequently be used in conjunction with the affidavit at any final hearing.
In circumstances where the Court has ordered the filing of a statement of claim setting out the basis of Mr Ellis’ claim against Left Bank Holdings and any affidavits in support of Mr Ellis’ claim against Left Bank Holdings, the Court is of the view that the discovery sought is unnecessary because, by and large, the documents in respect of which discovery is sought will either be documents referred to in any statement of claim or affidavits, or documents which are to be used in conjunction with any affidavit, and will therefore be available, in one form or another, to Left Bank Holdings by reason of the provisions of rr.14.10(1) and (2) and 15.28 of the FCC Rules, without the need for a declaration as to discovery being in the administration of justice, and a subsequent order. A discovery declaration and order would merely duplicate what the Court anticipates would already be, by and large, available to Left Bank Holdings by reason of rr.14.10 and 15.28 of the FCC Rules. As such, a discovery declaration and order at this point in time would not be of benefit to the litigation. To the extent that, following the filing of a statement of claim and any affidavits by Mr Ellis, there remains an issue as to discovery there is nothing to preclude Left Bank Holdings from making an application for a discovery declaration and order at that point in relation to any particular documents, or categories of document, which are then still in contention.
For the above reasons, the Court will not make a declaration or order in relation to discovery as sought by Left Bank Holdings in the application in a case.
Conclusions and orders
The Court has concluded that:
a)Mr Ellis is to file a statement of claim and affidavits in support of the statement of claim; and
b)the Court will not make a declaration or order in relation to discovery at this stage of the proceedings.
The Court will hear the parties as to costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 24 January 2017
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