Ellis v Redwave Media Pty Limited
[2019] FCCA 1431
•29 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v REDWAVE MEDIA PTY LIMITED | [2019] FCCA 1431 |
| Catchwords: 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 |
| Cases cited: Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 Modra v Victoria [2012] FCA 240; (2012) 205 FCR 445; (2012) 291 ALR 429 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) |
| 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 of Last Submission: | 9 March 2016 |
| Delivered at: | Perth |
| Delivered on: | 29 May 2019 |
REPRESENTATION
| For the Applicant: | In person (by telephone) |
| Counsel for the Respondent: | Ms B Robinson |
| Solicitors for the Respondent: | Allion Legal |
ORDERS
The Respondent’s application in a case is dismissed.
Paragraphs 4 to 8 inclusive of the Applicant’s statement of claim are struck out.
The Applicant is granted leave to file a further statement of claim by 28 June 2019.
The proceedings are adjourned to a directions hearing on a date to be fixed.
Costs, if any, be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 8 of 2015
| TROY ELLIS |
Applicant
And
| REDWAVE MEDIA PTY LIMITED TRADING AS RED FM |
Respondent
REASONS FOR JUDGMENT
Introduction – Application in a Case
The respondent, Redwave Media Pty Ltd Trading As Red FM (“Red FM”) has filed an Application in a Case to have an application by the applicant Troy Ellis (“Mr Ellis”), which seemingly alleges unlawful discrimination on the basis of a disability contrary to the provisions of the Disability Discrimination Act 1992 (Cth) (“DD Act”), summarily dismissed.
Litigation history
In order to understand the basis on which the Application in a Case is made it is necessary to set out the litigation history.
On 9 January 2015 Mr Ellis filed an Application – Human Rights on the approved form in which he sought final orders as follows:
1.Apology in writing
2.Never foolishly, ever again, ignore disabled rights for profits and promotions
3.$1 million compensation from public liability insurer for my indignity, stress, time, energy, costs, the principal, stripped of my human rights and emotional harm.
The grounds of the Application – Human Rights indicate that Mr Ellis is complaining of disability discrimination under the DD Act, but no further material facts are stated.
Attached to the Application – Human Rights is the Notice of Termination issued under s.46PH(2) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”). The Notice of Termination indicates that the complaint alleging unlawful discrimination under the DD Act had been terminated under s.46PH(1)(i) of the AHRC Act on the basis that a delegate of the President of the Australian Human Rights Commission (“AHRC”) was satisfied that there was no reasonable prospect of the matter being settled by conciliation (“Notice of Termination”). The Notice of Termination was dated 4 December 2014.
On 30 January 2015 Red FM filed a Response – Human Rights in the approved form indicating that all orders sought by Mr Ellis were opposed, and seeking a further order that Mr Ellis be ordered to file a Statement of Claim and any affidavits in support of his claim by a date determined by the Court. The grounds of opposition to the orders sought and the basis for seeking further orders were set out as follows:
1.The orders sought in question 1 are opposed on the basis that the Respondent denies it has unlawfully discriminated against the Applicant.
2.The orders sought in question 3 are sought on the basis that the Applicant’s application contains insufficient detail to enable the respondent to understand the claim against it and provide an appropriate response.
On the occasion of the first directions hearing on 13 March 2015 Mr Ellis was referred to a Registrar of this Court for the issuance of a pro bono certificate for advice generally, drafting of pleadings and affidavits and representation generally in mediations and hearings pursuant to r.12.02 of the Federal Circuit Court Rules 2001 (Cth). The Court notes that no lawyer has subsequently appeared for Mr Ellis in these proceedings.
On 15 April 2015 the Court made the following orders:
1.The applicant file and serve a particularised statement of claim and an affidavit in support of the particularised statement of claim by 6 May 2015.
2.The respondent file and serve any amended response and affidavit in support of any amended response by 27 May 2015.
On 6 May 2015 Mr Ellis filed a Statement of Claim in the following terms (transcribed verbatim):
1. I put forward an RSVP for a dating to be event held by Red FM at the Cottesloe Hotel in 2014.
2. The venue was disability inaccessible, where this event was being held.
3. I simply could not attend, due to the event being held at an upstairs venue, with no lift access for disabled persons.
4. I was discriminated against as a disabled person, as Red FM did not make it clear that this event must be held at an accessible venue.
5. It appears that they were only interested in promoting Red FM, with no regard for those in our community who are disabled.
6. I was outraged, as the disabled are people too and we also deserve to come to any event in this century, that is fully accessible for all people, not just the able bodied.
7. Red FM, which is also under the banner of Redwave Media, The West Australian, Channel 7 and 7 West Media and Telethon, then there is no feasible excuse they have to be disability discriminators and hold events at inaccessible venues.
8. I do not believe this was a mistake, I believe it was purposeful incompetence and a human rights abuse and neglect.
Mr Ellis also filed an affidavit on 6 May 2015 (“First Ellis Affidavit”) which is in the following terms (transcribed verbatim):
1. I have suffered emotional/ mental damage to a higher degree than able bodied people, as I rely on businesses to make sure that they do not cause me disability discrimination, whether they be holding an event on their own premises or promoting themselves at another venue.
2. My health has been severely damaged by immense emotional stress, due to the humiliating disability discriminating practice of holding a social event I was welcomed to come along to and that I had no idea was being held at a disability inaccessible venue.
3. Redwave Media is owned by billionaire Kerry Stokes, who also owns Channel 7 and The West Australian. They either a billion dollar multinational public liability insurance company policy or they are self insured. What I am asking for in compensation would come from this public liability insurer.
4. I want $1 million in compensation, as Redwave Media has caused me severe emotional stress and have given me a complex, as a disabled man and to add injury to insult, Channel 7 also runs Telethon that alleges to raise money to help disabled children and I find that irony a slap in the face to me as a disabled person and activist for my disability rights and that of other disabled persons.
5. Redwave Media Is paying a fortune in legal fees, but refuses to negotiate with me on the compensation factor.
6. I have lost myself totally, due to Redwave Medias not so kind, kind. I have had to fight constantly for my dignity, respect, safety, against disability discrimination, disability inaccessibility, the fight for my human rights and acknowledgment, as well as adequate actions that should have been taken, without the need for court action.
7. This immense stress and running around to court and printing off material has damaged me mentally and physically, as I suffer from depression and a physical disability, that can make me subject to shocking falls and muscle strain, if I am pushed to do more than I usually do in my day to day activities.
8. Going to court and facing sleazy lawyers, who will never defend me or the disabled, but will fight me and the disabled and further damage our worth, dignity and respect, has made me irritable, sad, sleepless, anxiety ridden and aggressive toward those I love, due to enduring this enhanced and unnecessary suffering, due to Redwave Medias lack of care or compassion for a disabled person, that their very own duty of care failed to protect and ensure that I was not discriminated against or injured emotionally/mentally by their poor business practices.
9. My life and that of the disabled is already diminished enough by the government, business and the general community, with injustice, poverty, unemployment, lack of adequate access and disability discrimination, without Solutions Matchmaking further harming my already damaged body and emotions, due to a disability I was not born with or created by my own self harm, misadventure or neglect.
It would appear that in the final paragraph the reference to “Solutions Matchmaking” is a reference to proceedings in another matter that Mr Ellis presently has before this Court in proceedings numbered PEG 10/2015.
At a directions hearing on 14 July 2015 the Court made orders that:
1.The Respondent file and serve an application in a case seeking (Application) with supporting affidavits by 27 July 2015.
2.The Respondent file and serve a written outline of submissions in support of the Application by 3 August 2015.
3.The Applicant file and serve a written outline of submissions and supporting affidavits by 17 August 2015.
4.The matter be listed for hearing at 10.15am on 9 March 2016.
The Application in a Case
On 27 July 2015 Red FM filed an Application in a Case which sought orders in the following terms:
1. The Applicant’s originating application (Application) alleging unlawful discrimination against the Respondent (Claim) be dismissed pursuant to Rule 13.10 of the Federal Circuit Court Rules (Rules) as:
a. the Applicant has no reasonable prospect of successfully prosecuting the Claim;
b. the Claim is frivolous or vexatious; and/or
c. the Claim is an abuse of the process of the Court and has been brought for an improper purpose.
2. In the alternative, the Applicant’s Application, Statement of Claim and Affidavit, be struck out in whole or in part on the grounds set out below.
3. The order is sought on the following grounds:
a. The Application does not comply with Rule 41.02A(1) of the Rules as it fails to:
i. disclose an arguable claim in law or in fact;
ii. provide any basis for the compensation claimed or how the amount has been calculated; and
iii. attach complete copies of the required documents to the Application.
b. The Applicant’s Statement of Claim:
i. fails to disclose a reasonable or arguable cause of action as it:
1. does not state the material facts on which the Applicant relies that are necessary to give the Respondent fair notice of the case to be made against the Respondent at trial; and
2. does not state the provisions of any statute relied on;
ii. contains scandalous, frivolous or vexatious material;
iii. is likely to cause prejudice, embarrassment or delay in the proceeding; and/or
iv. is an abuse of the process of the Court,
and therefore does not comply with Rule 16.02 of the Federal Court Rules (FC Rules).
c. The Applicant’s affidavit in support of the Application contains:
i. inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative material;
ii. opinions that the Applicant is not qualified to give;
iii. frivolous or vexatious material; and/or
iv. is an abuse of the process of the Court,
and therefore does not comply with Rule 15.29 of the Rules and Rule 29.03 of the FC Rules.
An affidavit affirmed by Kathryn Melissa Reid, a lawyer for Red FM, was affirmed on 27 July 2015 (“Reid Affidavit”) and attached various correspondence between Red FM’s lawyers and Mr Ellis which it is presently unnecessary to refer to.
On 28 July 2015 Red FM filed an affidavit of Ian Kennedy, the General Manager of Red FM (“Kennedy Affidavit”) in which he deposed:
a)quite specifically, that RED FM did not hold an event of any description at the “Cottesloe Hotel” in 2014: Kennedy Affidavit at [4a]; and
b)that RED FM does not own, operate or control the access to any premises located in Cottesloe and has no record of Mr Ellis as a client or customer of Red FM or any record of providing or refusing to provide goods and services to Mr Ellis.
On 17 August 2015 Mr Ellis filed an affidavit (“Second Ellis Affidavit”) the terms of which were identical to the First Ellis Affidavit save for some of the numbering in the paragraphs, omitting [9]-[11] and [2] which made reference to “elements of deceit, cover ups and corruption from SEVEN WEST MEDIA and ALLION LEGAL” and Mr Ellis not receiving any reply to various correspondence.
Submissions
Red FM submit that:
a)Mr Ellis’ claim, taken at its highest, does not disclose the basis for a claim that would amount to an arguable claim under the DD Act;
b)the events which Mr Ellis appears to rely on in relation to his claim, do not identify goods, services or facilities provided by Red FM, or a refusal by Red FM to provide goods, services or facilities to Mr Ellis, and that the holding of a promotional activity does not constitute a “service” to the applicant within the meaning of the DD Act;
c)even if Mr Ellis’ version of events is accepted, there is no identified or arguable claim that Red FM has contravened the DD Act; and
d)there does not appear to be any suggestion that RED FM refused Mr Ellis access to premises and even if this was suggested by Mr Ellis, the Kennedy Affidavit makes clear that RED FM does not own, operate or control the access to any premises located in Cottesloe.
Red FM also submits that:
a)Mr Ellis’ Claim is scandalous, frivolous and vexatious as:
a. it does not disclose a reasonable cause of action;
b. it contains scandalous and irrelevant pleadings, in particular items 5 to 8 of the Statement of Claim and the entirety of the Affidavit; and
c. is brought for the purpose of annoying, harassing and embarrassing the Respondent. This is evident having regard to the contents of the K Reid Affidavit and the emails annexed thereto.
b)Mr Ellis’ Claim is an abuse of process as Mr Ellis’ Claim is “seriously and unfairly burdensome, prejudicial or damaging and productive of serious and unjustified trouble and harassment” and “brings the administration of justice into disrepute”; and
c)if the Court were not minded to summarily dismiss Mr Ellis’ Claim then the Court should strike out Mr Ellis’ Claim.
Mr Ellis’ submissions may be of assistance in establishing his claim, but only in terms of identifying the disability from which he suffers and to some extent particularising the event the alleged unlawful discrimination relates to:
5-8. Myself and the public are allowed to interact fully with RED FM, to obtain services and be given information and attend events, such as the singles event I could not attend, due to NO DISABLED ACCESS.
20… It is Becker's Muscular Dystrophy, Depression and PTSD
9… of which I am linked to, as a sufferer of Becker's Muscular Dystrophy.
Consideration – summary dismissal
FCC Rules, r.13.10
Rule 13.10 of the FCC Rules provides as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Rule 13.10 of the FCC Rules replicates part of s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the authorities on s.17A of the FCCA Act are beneficial in considering r.13.10 of the FCC Rules, as was observed by the Federal Court in relation to the equivalent provisions in s.31A of the Federal Court of Australia Act 1976 (Cth) (“FC Act”) and r.26.01 of the Federal Court Rules 2011 (Cth) (“FC Rules”) in Manday Investments Pty Ltd v Commonwealth Bank of Australia (No.3) [2012] FCA 751 at [8] per McKerracher J and Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337 at [16] per Collier J respectively.
No reasonable prospect
Albeit that s.17A of the FCCA Act and r.13.10(a) of the FCC Rules might afford slightly different means of summary relief, the High Court’s observations in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233 (“Spencer”) at [58]-[60] per Hayne, Crennan, Kiefel and Bell JJ on the direct equivalent of s.17A of the FCCA Act in s.31A of the FC Act can nevertheless be applied to the “no reasonable prospect” provisions in r.13.10(a) of the FCC Rules. In Spencer it was observed that:
a)no paraphrase of the expression “no reasonable prospect” can be adopted as a sufficient explanation of its operation, let alone definition of its content: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
b)the expression “no reasonable prospect” cannot usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it can be said that there is “no reasonable prospect”: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
c)the creation of a lexicon of words or phrases intended to capture the operation of the phrase “no reasonable prospect” is to be avoided: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
d)where a plaintiff has no reasonable prospect of prosecuting a proceeding the proceeding could be described as “frivolous”, “untenable”, “groundless” or “faulty”, but these expressions, either alone or in combination, should not be understood as providing a sufficient chart of the metes and bounds of the relevant power, nor can reasonableness be sufficiently or completely illuminated by contrast with a claim which would be frivolous, untenable, groundless or faulty: Spencer at [59] per Hayne, Crennan, Kiefel and Bell JJ;
e)the power may only be exercised if a court is satisfied that the application has no reasonable prospect of success: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ; and
f)the power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ.
In relation to the direct equivalent of s.17A of the FCCA Act in s.31A of the FC Act the Federal Court has observed, in relation to the phrase “no reasonable prospect of success”, that:
a)a court must be satisfied that the applicant has no reasonable prospect of success;
b)evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects, and in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, a court should be more reluctant to dismiss a proceeding on the face of a pleading;
c)it was not Parliament’s intention to require a court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
d)if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said, where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds, that there is “no reasonable prospect of success”;
e)in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party;
f)a summary dismissal proceeding ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
g)the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of the summary dismissal power; and
h)what is required is a prediction of the outcome of a trial on the merits but not an actual adjudication of those merits such that a court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed.
See Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014 at [15] per Judge Lucev (and the various Federal Court authorities there cited).
The Court also observes that:
a)Red FM, in making the summary dismissal application, bears the onus of persuading the Court to make such an order: Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 (“Cassimatis”) at [46] per Reeves J; and
b)an application for summary dismissal does not involve “mere pleading points” but is concerned with substance, and the Court can consider matters outside the pleadings:Singh v Owners Strata Plan No 11723 (No.3) [2012] FCA 1121 (“Singh (No.3)”) at [39] per Griffiths J.
The Court observes that:
a)where an applicant neglects to identify any valid claim at all in the materials put before the court a conclusion may be justified that there is not, and never will be, a valid claim to advance to the court. In Dowling v Commonwealth Bank of Australia [2008] FCA 59 (“Dowling”) at [30] per Reeves J the Federal Court said:
However, where the applicant has failed to identify any valid claim in the materials he or she has placed before the court and has failed to provide any factual material that could amount to a valid claim and the court concludes that the party has no reasonable prospects of ever being able to do so, the situation is fundamentally different. The complete absence of an identified and valid claim and, more importantly, the factual materials to found either that valid claim, or some other form of valid claim, along with the likelihood that the applicant has no reasonable prospects of ever being able to produce that material, justifies a conclusion that there is not, and never will be, a valid claim before the court. This obviously cannot be remedied by orders to amend or strike out the pleadings because no amount of pleadings will remedy the fundamental absence of a valid claim. Moreover, the complete absence of a valid claim in this sense ie no identification of a claim, no factual foundation for a claim and no prospect of providing either, must lead inexorably to the conclusion that the applicant has no prospects of prosecuting his or her proceedings to a successful conclusion.
b)the Court must be cautious in summarily dismissing an application involving a litigant in person, and ought to act so as to diminish any disadvantage that a litigant in person suffers when faced with a lawyer in the adversarial process, but do so in a manner which does not confer upon the litigant in person an advantage over their represented opponent: Morton v Mitchell Products Pty Ltd (1996) 21 ACSR 497 at 513-514 per Sackville J;
c)in Walker v Victoria [2012] FCAFC 38 at [26] per Gray J the Federal Court said, of a disability discrimination claim, that:
There is no attempt to plead as material facts specific acts or omissions of the respondent. As a consequence, the respondent has not been called upon to plead to such allegations, so as to make it clear what is and is not in dispute. For the most part, there is a failure to particularise matters such as dates and the identification of the particular persons responsible. Specific alleged acts or omissions are not related directly to the provisions of the Disability Discrimination Act on which the appellant relies. There are no indications of the persons, or classes of persons, who might be regarded as proper comparators for the purposes of determining whether there has been discrimination by less favourable treatment, or of determining who is able to comply with a particular requirement or condition in respect of which it is alleged that the appellant cannot comply. In short, the amended statement of claim is a litany of complaints, rather than a series of allegations of unlawful discrimination under the Disability Discrimination Act.
d)it is important even where a litigant in person is concerned, that the matters necessary to be established in a disability discrimination claim are, ultimately, comprehensively pleaded in something akin to the proper form. In Modra v Victoria [2012] FCA 240; (2012) 205 FCR 445; (2012) 291 ALR 429 at [32] per Gray J the Federal Court considered a case in which there were deficient pleadings, and stated:
32… A pleading lacking in precision places upon the judge an extra burden of attempting to ascertain whether there are issues on which the party can rely lawfully. There is a risk that, without the assistance of precise pleadings, the judge will fall into error in that respect. An imprecise pleading adds to the expense of a proceeding. The opposing party will have a great deal more work to do than would normally be the case, in determining whether to gather evidence to meet all that is said in the deficient pleading. The trial is likely to be longer than if the claim were pleaded properly. Thus, a failure to plead a claim correctly will impact not only on justice, but also on timeliness, efficiency and expense…
Scandalous, frivolous and vexatious proceedings
In relation to scandalous material the Court notes that:
a)
in C2C Investments Pty Ltd v Leigh (No.3) [2012] FCA 680 at
[5]-[6] per Yates J the Federal Court provided an overview of the approach to scandalous material:
5. As a matter of general approach, it does not follow from the fact that scandalous matter has been stated in a document or affidavit filed in the Court that the matter is “scandalous” within the meaning of these rules. The question is really whether the scandalous matter, so stated, is extraneous to the issues raised in the proceeding on which evidence could properly be brought forward: Millington v Loring (1880) 6 QBD 190 at 195; 196-197. If the scandalous matter is extraneous, then, generally speaking, it should be struck out: see, for example, Wu v Avin Operations Pty Ltd (No 2) [2006] FCA 792; Kowalski v Mitsubishi Motors Australia Ltd [2009] FCA 1289. This is but an example of the Court remedying an abuse of its process. However, if the matter is relevant to the issues in the proceeding, such that evidence of it could properly be given, it would not normally be struck out under these rules. In short, the statement of a scandalous matter in a filed document or affidavit will not be struck out simply because it is scandalous.
6. Whether a matter can be characterised as scandalous depends on whether it would be perceived to be such according to generally recognised and accepted community standards at the time of the application. The assessment is an objective one. It does not rest simply on the idiosyncratic perceptions of the person challenging the statement of the matter in the document or affidavit. Still less is a matter scandalous because the person objecting to it disagrees with its content.
b)in Cavill Business Solutions v Jackson [2005] WASC 138 at [25] per Hasluck J the Supreme Court of Western Australia stated:
25. The learned author observes at par 20.19.8 that the mere allegation of a scandalous fact does not render the pleading liable to be struck out as scandalous, for material which is degrading and therefore scandalous will not be struck out unless it is also irrelevant. Scandal consists in the allegation of anything which is unbecoming to the dignity of the Court to hear or is contrary to good manners or which charges some person with a crime not necessary to be shown in the cause: to which may be added that any unnecessary (not relevant to the subject) allegation bearing purely upon the moral character of an individual is also scandalous.
c)in Zaghloul v Woodside Energy Ltd (No.2) [2013] FCA 947 (“Zaghloul (No.2)”) the Federal Court dealt with an application which alleged, in effect, that the applicant’s solicitor and Senior Counsel had been involved in negotiations with the respondent to obtain monies unlawfully, and had used his consent to transfer the proceedings from the Federal Court’s Australian Capital Territory Registry to the Western Australian Registry as a successful bargaining chip, or as the applicant put it, he “was, once again, used as a fair game to extract money from the Respondent”. The Federal Court found the allegation to be unsupported by evidence, and to be scandalous: Zaghloul (No.2) at [52]-[53] per Gilmour J; and
d)in Sims v Suda Ltd (No.2) [2015] FCA 281 (“Sims (No.2)”) the Federal Court found that unsupported and unsupportable allegations of fraud alleged to constitute a criminal offence were made by Mr Sims about two individuals, but which were not capable of constituting either fraud or misleading and deceptive conduct, were scandalous: Sims (No.2) at [44] and [47] per Gilmour J;
e)whether a proceeding is frivolous was addressed in Pickering v Centrelink [2008] FCA 561 at [27] per McKerracher J in the Federal Court as follows:
… if despite whatever attempts are made to discern a cause of action in a case, it is still not arguable, it is frivolous. A matter is also frivolous when it is without substance or groundless or fanciful: Bullen & Leake Precedents of Pleadings (1975) 12th ed, p 145. However such matters will only be struck out when it is so obviously frivolous that to put it forward, would be an abuse of the process of the court: Young v Holloway [1895] P 87...
f)in respect of vexatious proceedings in Rana v Commonwealth of Australia [2013] FCA 189 (“Rana”) at [42]-[43] per Mansfield J the Federal Court stated:
42.Proceedings have been held to be “vexatious” in the past if they are instituted with the intention of annoying or embarrassing the person against whom they are brought; they are brought for collateral purposes, and are not for the purpose of having the court adjudicate on the issues to which they give rise; irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless; or they are scandalous, disclose no reasonable cause of action, are oppressive, are embarrassing, or are an abuse of the process of the court: see generally Attorney-General v Wentworth (1988) 14 NSWLR 481.
43.It has also been pointed out that “vexatiousness” is a quality of the proceeding rather than a litigant’s intention so that the “question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious”: Re Vernazza [1960] 1 QB 197 at 208.
Abuse of process
In relation to abuse of process the Court notes that:
a)in Jeffrey & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75; (2009) 83 ALJR 1180; (2009) 260 ALR 34 at [28] per French CJ, Gummow, Hayne and Crennan JJ a majority in the High Court observed that:
28…It is clear, however, that abuse of process extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment".
b)the Federal Court dealt with abuse of process in Spalla v St George Motor Finance Ltd (No.6) [2004] FCA 1699 at [69] per French J where it said:
69 The public interest considerations underlying the power of courts to stay or dismiss the proceedings for abuse of process extend to preventing the waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. They include the necessity of maintaining confidence in, and respect for, the authority of the courts – Sea Culture International v Scoles [1991] FCA 523; (1991) 32 FCR 275 (at 279 French J); Djaigween v Douglas [1994] FCA 951; (1994) 48 FCR 535 (at 545 Carr J).
Red FM submits that Mr Ellis’ Claim has been brought for the improper purpose of harassing and embarrassing third parties into making a payment to Mr Ellis and that Mr Ellis has sent multiple emails (annexed to the Reid Affidavit) to Red FMs’ representatives.
There were a number of emails sent from Mr Ellis to Allion Legal and to third parties in relation to these proceedings. It is unnecessary to set out the detail of those emails, but the Court observes that:
a)Mr Ellis' conduct towards the lawyers for Red FM in these proceedings has been unacceptable; and
b)the content of the emails sent by Mr Ellis are vile and derogatory, and contain an array of illogical and incoherent rantings. That said, they are, sadly, probably no worse than other materials to which lawyers may from time to time be exposed to in a range of areas of civil law: see, by way of example, Dye v Commonwealth Securities Ltd [2012] FCA 242 at [388] per Buchanan J.
Analysis
Section 24 of the DD Act provides that it is unlawful for a person who, whether for payment or not, provides “services”, to discriminate against another person on the ground of the other person’s disability:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b) in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
The material before the Court indicates that Mr Ellis is claiming that:
a)he has Becker’s Muscular Dystrophy, depression and PTSD;
b)he rsvp’d for a dating event held or promoted by RED FM at the Cottesloe Hotel in 2014;
c)when Mr Ellis arrived at the venue for the dating event he was unable to access the particular place where the event was being held because of his disability, that is, it was inaccessible to a person with his particular disability;
d)in particular, Mr Ellis asserts that the event was held at an upstairs venue with no lift access for disabled persons; and
e)he has suffered emotional stress as a consequence of his inability to attend the event.
There is sufficient in the above outline to demonstrate that, properly pleaded and with admissible evidence properly tendered, there may be real issues of fact and law to be determined if this matter were to go to hearing.
If, for example, there was an event held by RED FM and that event was upstairs in premises which were not able to be accessed by a person with Mr Ellis’ disability then it might be argued that there was, effectively, a refusal to provide the services to Mr Ellis: DD Act, s.24(a), or discrimination in the manner in which RED FM provided Mr Ellis with the services: DD Act, s.24(c).
It was asserted by RED FM that there was no provision of “services” for the purposes of discrimination on the basis of disability under s.24 of the DD Act.
RED FM relied upon an argument that “services” should be considered to be a helpful activity, or an act or activity which addresses a public need, such as the provision of government services and therefore that the holding of a promotional activity by RED FM did not constitute a “service” to Mr Ellis within the meaning of the DD Act.
Section 4 of the DD Act defines “services” to include “services related to entertainment”: DD Act, s.4(b) (under the definition of “services”).
Under the Broadcasting Services Act 1992 (Cth) (“BS Act”) “commercial broadcasting services” are a category of broadcasting service to which the BS Act relates: BS Act, s.11(b). The objects of the BS Act include promoting the availability to audiences throughout Australia of a diverse range of “radio … services offering entertainment …”: BS Act, s.3(1)(a). It is therefore plainly arguable that the provision of radio services offering entertainment are “services” for the purposes of s.4 of the DD Act.
If, as contended by RED FM, a “service” is “a helpful activity” then it may be arguable that a person such as Mr Ellis, or any other person attending the event, might consider that the dating event was “a helpful activity” because it might assist them to meet a partner, or simply because it might be a fun social event, or even socially cathartic.
It is further arguable that the provision of a dating event, even a promotional dating event, might be perceived to be a “service” if one considers the definition of “service” as being the “… action of serving, helping, or benefiting; conduct tending to the welfare or advantage of another”: The Shorter Oxford English Dictionary on Historical Principles (3rd Edn) (Oxford: Clarendon Press, 1973), page 1950, in that it maybe arguable the conduct of a dating event might be perceived by some as conduct tending to the welfare or advantage of those attending that promotional event such as Mr Ellis, or any person with whom he may be matched during the dating event. These are not arguments which can be dismissed summarily without an examination of all of the circumstances of the relevant event.
Having regard to the Kennedy Affidavit there is plainly a dispute as to whether or not there was an event of this type at the time and place claimed by Mr Ellis. That, however, is a factual dispute which may be resolved on the evidence at hearing, and it may be that, once further affidavits are ordered to be provided, and are provided, and if necessary, there is the provision of discovery and particulars, that the time and place of the event can be clarified or more precisely defined.
In all of the above circumstances it appears to the Court that it would be premature to summarily dismiss Mr Ellis’ claim, or the Application – Human Rights, at this stage. This is plainly a case where evidence may give colour and content to the allegations, and where questions of fact and degree may be important, and it cannot be said that properly pleaded and with appropriate evidence in support, Mr Ellis’ claim has no reasonable prospect of success.
Having regard to the above observations the Court is also of the view that the claim itself is not scandalous, frivolous or vexatious, or an abuse of process, and ought not be dismissed on that basis. It may be that Mr Ellis’ extra-curial conduct of the proceedings has been particularly egregious, and that much of the material which is undoubtedly scandalous is irrelevant, but having regard to the fact that there may be an arguable claim, and that much of the scandalous material is either irrelevant or extra-curial, there is not a proper basis for dismissing the claim on the basis that it is scandalous. Likewise, because there is an arguable claim the Court is of the view that the proceedings cannot be otherwise described as frivolous or vexatious. Whilst Mr Ellis’ conduct of the proceedings in relation to his interaction with RED FM’s lawyers might be seen as annoying or embarrassing, it is not evidently the case that these proceedings have been brought for the purpose of annoying or embarrassing RED FM, but rather to vindicate what Mr Ellis says is a case of disability discrimination against him, and in those circumstances neither the institution nor purpose of the proceedings would appear to be vexatious having regard to Rana at [42] per Mansfield J. Nor, in circumstances where the Court has concluded that the proceedings ought not be summarily dismissed on the basis that they have no reasonable prospect of success, can it be said that the proceedings are themselves vexatious: Rana at [43] per Mansfield J. Insofar as abuse of process is concerned the Court is not satisfied that, notwithstanding the manner in which Mr Ellis has conducted the proceedings, particularly vis-a-vis RED FM’s lawyers, that there can be said to be an abuse of process. Indeed, the public interest might weigh in favour of ensuring that an allegation of disability discrimination of this type is not prematurely terminated.
For all of the above reasons, the Court will not summarily dismiss Mr Ellis’ claim under r.13.10 of the FCC Rules.
Strike out
Rule 1.05 of the FCC Rules provides that it is intended that the practice and procedure of this Court be governed principally by the FCC Rules, however if the FCC Rules are insufficient or inappropriate the Court may apply the FC Rules. In this case, the FCC Rules are insufficient, as they do not contain specific provisions in relation to the striking out of material in a statement of claim.
Schedule 3, Pt.2 of the FCC Rules, sets out the provisions of the FC Rules which apply to “general Federal Law proceedings”. “General Federal Law proceedings” are defined in the FCC Rules to include proceedings other than family law or child support proceedings. The Application – Human Rights filed by Mr Ellis is a general Federal Law proceeding. Item 11 of Pt.2 of Sch.3 of the FCC Rules prescribed r.16.21 of the FC Rules as an FC Rule that applies in general federal law proceedings in this Court, pursuant to r.1.05(3)(b) of the FCC Rules.
Rule 16.21 of the FC Rules provides as follows:
(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
(2) A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1) (a), (b) or (c) or is otherwise an abuse of the process of the Court.
The Statement of Claim makes reference to the location and date, albeit referencing only the year, of the event at the Cottesloe Hotel in 2014 and that Mr Ellis could not attend due to there not being a lift for disabled persons to access upstairs where the event was being held: see [1] and [3]. Whilst not a model of pleading, those matters are relevant, and should not be struck out. Deficiencies, such as a precise date and place of the event, are amendments or particulars which could be made or provided if Mr Ellis were to be granted leave to re-plead.
It is unnecessary to deal seriatim or in detail with the remaining paragraphs of the Statement of Claim. Rather, it suffices to observe that the Statement of Claim at [4]-[8] fails to disclose, or relate to, a reasonable cause of action, or other case appropriate to the nature of the pleading, and are in any event evasive or ambiguous, and therefore ought to be struck out under r.16.21(1)(c) and (e) of the FC Rules. There will be an order to that effect.
Re-pleading
The question which then arises is whether or not Mr Ellis ought to be granted leave to re-plead the Statement of Claim.
Red FM submits that the failure of Mr Ellis’ Claim to disclose any arguable claim at law under the DD Act means it lacks any reasonable prospects of success and that this failure cannot be remedied by further pleadings. That submission fails at the outset given the Court’s findings above: see, particularly [31] and [40] above.
The Court observes the following:
a)in Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081 (“Takemoto”) the Federal Court said that whilst “caution should be exercised before striking-out a pleading, even greater caution should be exercised before refusing a party an opportunity to re-plead”: Takemoto at [87] per Flick J, and that a party will normally be permitted to re-plead, particularly where the cause of action concerned is complex and where prior opportunities have not been extended: Takemoto at [89]-[90] per Flick J; and
b)in Nulyarimma & Ors v Thompson & Ors (1999) 96 FCR 153; (1999) 165 ALR 621 at [208] per Merkel J (with whom Wilcox and Whitlam JJ relevantly agreed), the Federal Court cited with approval the following observations made in Thorpe v Commonwealth (No.3) (1997) 71 ALJR 767; (1997) 144 ALR 677 (“Thorpe (No 3)”) at 774-775 per Kirby J:
Even if a party makes good its attack on another's pleading, a court will ordinarily permit the opponent to reframe the pleading so long as it is clear that there is point in doing so and that the further time and opportunity will have utility.
Importantly, the Court notes that Mr Ellis is a litigant in person, that disability discrimination claims can be challenging to draft, even for practitioners, and that in the ordinary course of litigation, even where both parties are professionally represented, it is not unusual for there to be a number of duplications of a statement of claim. Mr Ellis’ Statement of Claim is his first attempt in these proceedings to formulate a statement of claim.
In relation to whether Mr Ellis ought to be given leave to re-plead the Court has regard to the following:
a)when and where the alleged discrimination allegedly took place has been stated, albeit lacking specificity in terms of day, date, month and time;
b)Mr Ellis has stated he suffers Becker’s Muscular Dystrophy, however further particularisation would be required in terms of its relationship or connection to the disability discrimination allegedly suffered; and
c)how the alleged discrimination arises was stated by Mr Ellis as he was disadvantaged by Red FM because he was unable to access the event due to his disability.
Accordingly, the Court takes the view that were Mr Ellis to be given a further opportunity to file and serve a particularised statement of claim it would be possible to draft it in a manner such as to disclose a proper cause of action, and therefore Mr Ellis ought to be given leave to re-plead the Statement of Claim.
The Court notes that there are numerous resources available to a litigant in person in relation to pleading generally, including the following:
a)available online and accessible to the public is a speech delivered by Justice Katzmann in the College of Law Judges’ Series on 5 November 2015 titled “Pleadings and Case Management in Civil Proceedings in the Federal Court of Australia”: In particular at [43]-[57] the characteristics of a good pleading are set out, none of which ought to be beyond the capacity of a litigant in person who takes the time to understand what their rights are under the cause of action they wish to pursue; and
b)in Federal Civil Litigation Precedents (Looseleaf, LexisNexis Butterworths) (“FCL Precedents”) the “Pleadings” commentary, at which Nathan Moshinsky QC (as Justice Moshinsky then was) is cited as an author, and specifically the Rules of Pleading at [24,070]-[24,100] and the Drafting Considerations at [24,630]-[24,640] provide extensive guidance on the substance of a successful pleading. In the context of applications concerning the AHRC Act the FCL Precedents at [50,600] and [90,100] provide exemplar originating applications and supporting affidavits for such claims, and the specific example set out is a claim under the DD Act, and is a useful guide to a litigant in person on the material facts and claims which might be adapted for use in relation to pleadings proper.
Conclusion and orders
The Court has concluded that:
a)RED FM’s application in a case is to be dismissed;
b)[4]-[8] inclusive of the Statement of Claim are to be struck out;
c)Mr Ellis is to have leave to re-plead the Statement of Claim by filing a further statement of claim by 28 June 2019; and
d)the proceedings are to be adjourned to a directions hearing on a date to be fixed.
Costs, if any, will be reserved.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 29 May 2019
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