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Ellis v Redwave Media Pty Limited

Ellis v Redwave Media Pty Limited

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Case Copied 29 May 2019 36 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

ELLIS v REDWAVE MEDIA PTY LIMITED

[2019] FCCA 1431

Catchwords:
HUMAN RIGHTS – Disability discrimination claim.

PRACTICE AND PROCEDURE – Respondents’ Application in a Case for summary dismissal of claim – in the alternative to strike out claim – whether failure to disclose a reasonable cause of action – whether any reasonable prospect of success – whether pleading scandalous, frivolous and vexatious – whether pleading an abuse of process – whether claim or portions thereof to be struck out – whether claim to be re-pleaded.

WORDS AND PHRASES – “services”.

Legislation:

Australian Human Rights Commission Act 1986 (Cth), s.46PH
Broadcasting Services Act 1992 (Cth), ss.3, 11
Disability Discrimination Act 1992 (Cth), ss.4, 24
Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Circuit Court Rules 2001 (Cth), rr.1.05, 12.02, 13.10, Sch.3, Pt.2
Federal Court of Australia Act 1976 (Cth), s.31A
Federal Court Rules 2011 (Cth), rr.16.21, 26.01

Cases cited:

Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623
Cavill Business Solutions v Jackson [2005] WASC 138
C2C Investments Pty Ltd v Leigh (No.3) [2012] FCA 680
Dowling v Commonwealth Bank of Australia [2008] FCA 59
Dye v Commonwealth Securities Ltd [2012] FCA 242
Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014
Jeffrey & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75; (2009) 83 ALJR 1180; (2009) 260 ALR 34
Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337
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
Nulyarimma & Ors v Thompson & Ors (1999) 96 FCR 153; (1999) 165 ALR 621
Pickering v Centrelink [2008] FCA 561
Rana v Commonwealth of Australia [2013] FCA 189
Sims v Suda Ltd (No.2) [2015] FCA 281
Singh v Owners Strata Plan No 11723 (No.3) [2012] FCA 1121; (2012) 207 FCR 390
Spalla v St George Motor Finance Ltd (No.6) [2004] FCA 1699
Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233
Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081
Thorpe v Commonwealth (No.3) (1997) 71 ALJR 767; (1997) 144 ALR 677
Walker v Victoria [2012] FCAFC 38
Zaghloul v Woodside Energy Ltd (No.2) [2013] FCA 947

Katzmann J, College of Law Judges’ Series, “Pleadings and Case Management in Civil Proceedings in the Federal Court of Australia”: Federal Civil Litigation Precedents (Looseleaf, LexisNexis Butterworths)
The Shorter Oxford English Dictionary on Historical Principles (3rd Edn) (Oxford: Clarendon Press, 1973)

Applicant:

TROY ELLIS

Respondent:

REDWAVE MEDIA PTY LIMITED TRADING AS RED FM

File Number:

PEG 8 of 2015

Judgment of:

Judge Antoni Lucev

Hearing date:

9 March 2016

Date…

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.

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Details

Case: [2019] FCCA 1431
Decision Date: 29 May 2019

CaseChat Overview and Summary

In *Ellis v Redwave Media Pty Limited*, the applicant, Mr Ellis, brought a disability discrimination claim against the respondent, Redwave Media Pty Limited. The respondent sought summary dismissal of the claim, or in the alternative, to strike out the claim on various grounds, including that it failed to disclose a reasonable cause of action, had no reasonable prospect of success, was scandalous, frivolous, vexatious, or an abuse of process.

The primary legal issue before the court was whether Mr Ellis's claim, as pleaded, disclosed a reasonable cause of action under the relevant anti-discrimination legislation, and whether it had any reasonable prospect of success. This involved determining whether the respondent's conduct, as alleged by Mr Ellis, constituted discrimination on the grounds of disability in relation to the provision of "services" as contemplated by the legislation. The court also considered whether the pleadings were so deficient or vexatious as to warrant being struck out.

Judge Lucev found that the claim, as presently pleaded, did not disclose a reasonable cause of action. His Honour reasoned that the applicant had failed to adequately particularise how the respondent's alleged conduct amounted to a failure to provide "services" in a manner that was discriminatory due to his disability. The pleadings lacked the necessary specificity to establish a nexus between the alleged disadvantage and the provision of services, rendering the claim unsustainable in its current form. Consequently, the court ordered that the claim be struck out, with leave granted to the applicant to re-plead.

Orders