Ellis v Palss Pty Ltd (McDonald's East Victoria Park)
[2018] FCCA 1575
•15 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v PALSS PTY LTD (MCDONALD'S EAST VICTORIA PARK) & ANOR | [2018] FCCA 1575 |
| Catchwords: COSTS – Where application dismissed for non-appearance. |
| Legislation: Federal Circuit Court Rules 2001, rr.13.03C, 16.05, sch.1, pt.1 |
| Cases cited: MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530 Singh v Official Trustee in Bankruptcy [2008] FMCA 521 |
| Applicant: | TROY ELLIS |
| First Respondent: | PALSS PTY LTD (MCDONALD'S EAST VICTORIA PARK) |
| Second Respondent: | MCDONALD'S AUSTRALIA LIMITED |
| File Number: | PEG 654 of 2017 |
| Judgment of: | Judge Lucev |
| Hearing date: | 27 April 2018 |
| Date of Last Submission: | 27 April 2018 |
| Delivered at: | Perth |
| Delivered on: | 15 June 2018 |
REPRESENTATION
| Applicant: | No appearance by or for the applicant |
| Counsel for the Respondents: | Mr A Talbert |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) the application be dismissed.
That the applicant pay the respondents’ costs in the sum of $3,832 by 27 May 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 654 of 2017
| TROY ELLIS |
Applicant
And
| PALSS PTY LTD (MCDONALD'S EAST VICTORIA PARK) |
First Respondent
| MCDONALD'S AUSTRALIA LIMITED |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings were commenced by the applicant, Mr Troy Ellis (“Mr Ellis”), on 28 November 2017 by an Originating Application (“Application”) alleging disability discrimination by the respondents, Palss Pty Ltd (McDonald's East Victoria Park) and McDonald's Australia Pty Ltd (together the “Respondents”). The Court will go no further into the substance of the Application than to note the alleged disability discrimination appears to be related to an incident at the premises of the first respondent whereby Mr Ellis was asked to leave his dog outside.
For reasons which will become apparent below, on the third instance the matter came before the Court, being 27 April 2018, the following orders were made:
1. Pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) the application be dismissed.
2. The applicant pay the respondents’ costs in the sum of $3,832 by 27 May 2018.
Upon dismissing the matter the Court indicated that in the circumstances, and specifically because there was an order for Mr Ellis to pay the Respondents’ costs, the Court would produce Reasons for Judgment and publish those at a later date. These are those Reasons for Judgment.
Background
Subsequent to the filing of the Application on 28 November 2017, the matter came before the Court for a first court date on 20 December 2017. At that first court date Mr Ellis appeared by telephone and the Respondent’s legal representative was present before the Court. The orders made on that date (“December 2017 Orders”) required Mr Ellis to file and serve a statement of claim by 14 February 2018, and adjourned the matter until a further directions listing on 2 March 2018. The costs of the first court date were reserved.
Mr Ellis filed a statement of claim on 9 January 2018 pursuant to the December 2017 Orders. When the matter came on for the directions listing on 2 March 2018 Mr Ellis was not in attendance. The Court attempted to contact Mr Ellis on the mobile telephone number he had provided to the Court on three occasions, being the same number used successfully on the first court date. Having been unable to reach Mr Ellis on his mobile telephone contact, the Court proceeded to have the matter called outside the courtroom three times, however, Mr Ellis did not appear. The Respondent’s legal representative was again present before the Court. Upon Mr Ellis’ non-appearance the Court made an order to adjourn the matter to a further directions listing on 27 April 2018 (“March 2018 Order”).
As is the usual practice in this Court, upon the orders being issued Mr Ellis was sent an email from Chambers advising the March 2018 Order was available to access on the Commonwealth Court Portal. On 10 April 2018, Mr Ellis emailed Chambers stating he did not know how to access the order and requested he be provided a copy by email. In a return email sent later that day Mr Ellis was provided a copy of the March 2018 Orders.
When the matter resumed for the directions hearing on 27 April 2018 the Court again made attempts to contact Mr Ellis on his mobile telephone number on three occasions. All of these calls went unanswered. The matter was then called outside three times, but Mr Ellis did not appear. It was then the Court made the orders referred to at [2] above.
Disposition
Rule 13.03C(1) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) is as follows:
(1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do 1 or more of the following:
(a) adjourn the hearing to a specific date or generally;
(b) order that there is not to be any hearing, unless:
(i) the proceeding is again set down for hearing; or
(ii) any other steps that the Court or the Registrar directs are taken;
(c) if the absent party is an applicant--dismiss the application;
(d) if the absent party is a party who has made an interlocutory application or a cross-claim--dismiss the interlocutory application or cross-claim;
(e) proceed with the hearing generally or in relation to any claim for relief in the proceeding.
The Court is expressly empowered to dismiss a proceeding on the non-appearance of an applicant pursuant to r.13.03C(1)(c) of the FCC Rules, and in the circumstances did so. Mr Ellis had failed to appear on two occasions when the matter was listed before the Court, and the Respondents’ legal representative was present before the Court on those two occasions. In light of the time the Respondents had wasted in the proceeding it was appropriate to make an order for costs.
The costs order was calculated based upon the scale of costs found in Pt.1 of sch.1 of the FCC Rules as follows:
a)$2, 936 for opposing the application up to completion of the first court date and $299 for the appearance of the Respondents’ legal representative at that first court date; and
b)two further hearing fees each of $299 for the attendance of the Respondents’ legal representative at the directions listings on 2 March 2018 and 27 April 2018.
The Court notes the costs amount to $3, 833, however the order made on 27 April 2018 stated $3,832. The Court does not propose to amend that costs order noting the amount is insignificant and not prejudicial to Mr Ellis.
Set-aside application
The Court notes, having made the orders referred to at [2] above in Mr Ellis’ absence, that pursuant to r.16.05(2)(a) of the FCC Rules Mr Ellis may seek to have those orders set aside upon further application to the Court. As to the criteria to be considered on such a set-aside application see MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530 at [7] per Ryan J; Singh v Official Trustee in Bankruptcy [2008] FMCA 521 at [19] per Lucev FM.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 15 June 2018
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