Ellis v Rottnest Lodge (1989) Pty Ltd Trading As Rottnest Lodge
[2017] FCCA 84
•24 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v ROTTNEST LODGE (1989) PTY LTD TRADING AS ROTTNEST LODGE | [2017] FCCA 84 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a case for communication restraint order and substituted service – vile email communication from applicant to respondent’s solicitors – orders sought to protect staff of respondent’s solicitors. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), s.46PH(2) |
| Cases cited: Bahonko v Nurses Board of Victoria [2008] FCAFC 29 Basetec Services Pty Ltd v Leighton Contractors Pty Ltd (No 2) [2015] FCA 762; (2015) 236 FCR 432 Colgate-Palmolive Company & Anor v Cussons Pty Limited (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 28 IPR 561 Dye v Commonwealth Securities Ltd [2012] FCA 242 Fair Work Ombudsman v Goldfinger Facility Management Pty Ltd & Anor [2016] FCCA 356; (2016) 304 FLR 320 Milner & Milner [2016] FCCA 2254 Societe Des Produits Nestle SA & Anor v Christian & Anor [2014] FCCA 367 Trevena v Thiess Pty Ltd [2016] FCA 468 |
| Applicant: | TROY ELLIS |
| Respondent: | ROTTNEST LODGE (1989) PTY LTD TRADING AS ROTTNEST LODGE |
| File Number: | PEG 69 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 7 July 2016 |
| Date of Last Submission: | 7 July 2016 |
| Delivered at: | Perth |
| Delivered on: | 24 January 2017 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the Respondent: | Mr C Breheny |
| Solicitors for the Respondent: | Morgan Alteruthemeyer Legal Group |
ORDERS
That the respondent’s application in a case filed 17 June 2016 be dismissed.
That there be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 69 of 2016
| TROY ELLIS |
Applicant
And
| ROTTNEST LODGE (1989) PTY LTD TRADING AS ROTTNEST LODGE |
Respondent
REASONS FOR JUDGMENT
Introduction – an application in a case
The respondent in these proceedings, Rottnest Lodge (1989) Pty Ltd trading as Rottnest Lodge (“Rottnest Lodge”), filed an application in a case on 17 June 2016 seeking orders in relation to communication with, and service upon, the applicant, Troy Ellis (“Mr Ellis”) in relation to the originating application which appears to allege disability discrimination in relation to access to premises.
The orders sought in Rottnest Lodge’s application in a case are as follows:
1. That until further order the Applicant be restrained from corresponding with or contacting by any other means:
a. the Respondent; and
b. the firm of solicitors, including its employees, acting on behalf of the Respondent.
2. That the Respondent be excused from directly serving all future documents in these proceedings on the Applicant.
3. That the Respondent shall be permitted to serve documents on the Applicant in these proceedings by filing such documents with the Court, after which the Court shall forward such documents to the address for service of the Applicant.
4. That the Applicant pay the Respondent's costs of this application.
Rottnest Lodge’s application in a case is supported by an affidavit of Matthew Campbell Morgan, a solicitor and a principal of Morgan Alteruthemeyer Legal Group (“Morgan Alteruthemeyer”), who are the solicitors for Rottnest Lodge (“Mr Morgan’s Affidavit”).
In order to understand the context for the making of the application in a case seeking the orders set out above, it is necessary to set out the history of the proceedings thus far.
History of proceedings
The originating application lodged electronically on 18 February 2016 seeks orders for an apology in writing, $1 million in compensation, and for all access at Rottnest Lodge to be made safe and accessible. The grounds of the application are simply said to be “disability discrimination”. Annexed to the application is a copy of a Notice of Termination issued under s.46PH(2) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) and the attachments thereto, being a letter from the Australian Human Rights Commission (“AHRC”) to Mr Ellis dated 17 December 2015 advising of the termination of a complaint made by Mr Ellis alleging disability discrimination under the Disability Discrimination Act 1992 (Cth) (“DD Act”), and a copy of what appears to be Mr Ellis’ complaint to the AHRC and various email correspondence in relation thereto.
It would appear that a second copy of Mr Ellis’ originating application was lodged electronically with the Court on 21 March 2016.
On 9 March 2016 at a directions hearing the Court made orders:
a)with respect to service of the originating application on Rottnest Lodge; and
b)adjourning the matter to a further directions hearing on 11 April 2016.
On 6 April 2016 a notice of address for service was filed by Rottnest Lodge which indicated that they were represented by solicitors, namely Morgan Alteruthemeyer, and giving both a street address and an email address ([email protected]) for the purposes of service: r.6.01(5) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides that a party represented by a lawyer who in the notice of address for service provides the lawyer’s email address agrees for the party’s lawyer to receive documents at the lawyer’s email address.
On 11 April 2016 the Court relevantly made orders for Mr Ellis to file and serve within 14 days a factual summary of the acts or omissions alleged to amount to a breach of the DD Act, and for Mr Ellis to file and serve submissions and evidence in support of an application for an extension of time in which to file the originating application (made necessary by reason of the fact that the originating application was lodged out of time), and for Rottnest Lodge to file and serve within 28 days submissions and evidence in reply.
On 3 May 2016 Mr Ellis filed a document headed “Outline of Submissions” and also containing the heading “Factual Summary” (“Mr Ellis’ Submissions and Summary”). Mr Ellis’ Submissions and Summary contain material which is irrelevant, opinion and, in some instances, arguably scandalous. There is, however, a discernible allegation that in relation to accommodation in which Mr Ellis, and his elderly mother, stayed at Rottnest Lodge that:
a)it was inaccessible for disabled persons (or at the least not easily accessible for disabled persons);
b)no ramps were provided, or that one inadequate ramp and no safety rails were provided; and
c)there were numerous dangerous trip hazards on the flooring surfaces.
Mr Ellis’ Submissions and Summary also set out what are said to be further facts of and evidence in support of his application for an extension of time in which to file the originating application.
On 7 June 2016 Rottnest Lodge filed a Reply to Mr Ellis’ Submissions and Summary (“Rottnest Lodge’s Reply”).
The Court observes that Rottnest Lodge’s Reply takes issue, on a paragraph by paragraph basis, with Mr Ellis’ Submissions and Summary, and does so in terms which, without commenting upon the merit of Rottnest Lodge’s Reply, can only be described as proper and appropriate.
Mr Morgan has the conduct and overall supervision of these proceedings on behalf of Rottnest Lodge: Mr Morgan’s Affidavit at [1]. On 8 June 2016 he instructed a legal assistant employed by Morgan Alteruthemeyer to send a letter to Mr Ellis by both post and email enclosing, by way of service, Rottnest Lodge’s Reply, which instructions were followed by the legal assistant concerned who sent Rottnest Lodge’s Reply by post and by email, including in the email to Mr Ellis the legal assistant’s email address of [name omitted]@morganalteruthemeyer.com (“Legal Assistant’s Email”): Mr Morgan’s Affidavit at [2] and Annexure MCM1.
The terms of Mr Ellis’ email response, sent on 8 June 2016 at 9.54pm (“Mr Ellis’ 8 June 2016 Email”) to the Legal Assistant’s Email can best be described as vile, and read as follows:
I HOPE THE GOOD LORD KILLS YOU SOON, AS YOU ARE IRRELEVANT, YOU DUMB & VIOLENT WHORE WITH DEMON SEED COURSING THROUGH YOU!
ITS DUMB CUNT LAWYERS LIKE YOU THAT MAKE MY LIFE WORSE FOR THE DISABLED & SOON I WILL BE MAKING MOVES TO DISBARR MANY OF YOU CRIMINALS, AS MYSELF & MANY COMRADES IN ARMS ARE FIGHTING FOR A WA ROYAL COMMISSION & REPRESTATION AT THE INTERNATIONAL CRIMINAL COURT.
CRASH YOUR BEEMER INTO A WALL AT 200 KMH WHILE DRUNK WILL YOU & TO SEE IF YOU SURVIVE & REMEMBER LOSERS LIKE YOU WILL GET PLENTY OF CARE COMPARED TO THE REAL DISABLED, SUCH AS MYSELF.
GET THAT CLITORIS REMOVED FROM YOUR FOREHEAD WHILE YOUR AT IT!
(Transcribed without amendment: Mr Morgan’s Affidavit at [3] and Annexure MCM2).
Submissions at hearing
At the hearing of the application in a case Mr Ellis did not appear, and the Court’s endeavours to contact him by telephone were unsuccessful.
Counsel appeared for Rottnest Lodge, and made the following submissions:
a)that the main purpose of the application in a case was to bring Mr Ellis 8 June 2016 Email to the attention of the Court;
b)that the orders sought in the application in a case were essentially in the nature of case management orders and substituted service type orders;
c)that the purpose of the orders sought was to prevent a situation such as occurred with Mr Ellis sending Mr Ellis’ 8 June 2016 Email to a member of the staff of Morgan Alteruthemeyer from happening again, it being alleged that Mr Ellis’ 8 June 2016 Email caused extreme distress to the legal assistant concerned, and to prevent the staff, and to attempt to protect the staff, from receiving communications such as Mr Ellis’ 8 June 2016 Email in future; and
d)that no precedent in relation to orders of this type had been found by the solicitors for Rottnest Lodge, but that such orders would be within the Court’s general case management powers.
Consideration – the restraint order
In relation to the first order sought, that is the order seeking to restrain Mr Ellis from corresponding with or contacting by any other means Rottnest Lodge or its solicitors, the Court was advised that this proposed order was purely a means of ensuring that Mr Ellis did not have direct access to the employees of Rottnest Lodge’s solicitors, so that an email such as Mr Ellis’ 8 June 2016 Email could not be sent directly to those concerned because of its tendency to harass, upset or disturb any person receiving it. The case was not put on the basis that Mr Ellis’ 8 June 2016 Email constituted either a misuse of the Court’s processes, or was conduct calculated to bring improper pressure onto Rottnest Lodge to withdraw from the proceedings or settle them on terms regarded as inadequate: as to which, see, for example, Basetec Services Pty Ltd v Leighton Contractors Pty Ltd (No 2) [2015] FCA 762; (2015) 236 FCR 432 at [31]-[34] per White J (“Basetec”).
The Court doubts the utility of making the restraint order. Mr Ellis already has contact details for the legal assistant concerned and the firm’s address for service, which appears to be a generic email address for the firm, and which is no doubt accessed by persons performing clerical and administrative functions within the firm. Thus, if Mr Ellis chose to ignore any order made by the Court in the terms presently sought, the effect of the order would be obviated, notwithstanding any subsequent steps that might be taken by Rottnest Lodge or the Court to enforce such an order.
The utility of the order is also doubtful because it does not address practical considerations such as how it is that Mr Ellis might actually communicate with Rottnest Lodge’s solicitors, in the event that he has either Court documents to serve or correspondence to send with respect to either the conduct or possible resolution of the proceedings. If the suggestion is, as it appears to be from what were described as the “substituted service” proposed orders, that officers of the Court’s Registry perform these functions then that puts the Court in a possibly invidious position. Does, for example, the relevant Registrar act as a censor if Mr Ellis seeks to communicate with Rottnest Lodge’s solicitors, and includes terms not dissimilar to those in Mr Ellis’ 8 June 2016 Email? Where does the Registrar draw the censor’s line? If the Registrar is not to act as a censor, and simply acts as a post-office box and process server, then the order has no utility at all as all documents and correspondence would simply be forwarded on to Rottnest Lodge’s solicitors. Further, what is a Registrar to do if a without prejudice proposal is received from Mr Ellis in relation to resolution of the proceedings. The proposed orders do not address what procedures might be put in place to prevent such correspondence coming before the Registrar with the conduct of the file for the purposes of dispute resolution, or possibly being accessed by a Judge, or a member of a Judge’s chambers’ staff, on the electronic file.
Looking at the matter more broadly, even if it had been brought as an application for an interlocutory injunction to restrain a threatened contempt of Court, particularly on the basis that Mr Ellis’ 8 June 2016 Email constituted improper pressure on a litigant in relation to the conduct or settlement of the litigation, the Court would not have been minded to grant an order or injunction of that type. Mr Ellis’ 8 June 2016 Email seems to be a vile rant without much forethought, and is not conduct which in these proceedings appears to be ongoing, and therefore conduct which it might be necessary to restrain: Basetec Services at [45] and [49] per White J. Further, it is not evident that Rottnest Lodge, or Rottnest Lodge’s solicitors, are likely to be vulnerable to pressure such as that which might be inferred from the content of Mr Ellis’ 8 June 2016 Email. The threat to have lawyers struck off, or a Royal Commission convened, or to invoke the jurisdiction of the International Criminal Court, would, to any lawyer with any basic knowledge of the processes required to achieve those outcomes, be seen as a hollow threat, and not one which it is necessary to take seriously: Basetec Services at [39]-[40] per White J (and the cases there cited). An injunction or order of the type issued in Basetec Services goes to conduct calculated to intimidate, harass or otherwise bring improper pressure on a litigant in respect of the conduct of the proceedings, and for the foregoing reasons Mr Ellis’ 8 June 2016 Email, vile as it is, could not be said to be conduct of that type.
The above matters do tend to indicate that the proposed restraint order would be of no utility, and that the ongoing practical consequences of making a restraint order in the terms proposed have not been properly addressed, either by Rottnest Lodge or by Mr Ellis.
If, as was said by Counsel for Rottnest Lodge, the purpose of the proposed order is to protect the staff of Morgan Alteruthemeyer there are other steps which could be taken, and which perhaps ought to have been taken, before the application in a case containing the proposed restraint order was made. One simple expedient is a traditional one: Rottnest Lodge can use a process server to serve the documents, which then does not invite an immediate response by electronic means, as does an email (although it does not preclude a response by electronic means in circumstances where, as indicated above, Mr Ellis has contact details for the solicitors for Rottnest Lodge). Alternatively, given that a particular part of the concern was that Mr Ellis’ 8 June 2016 Email was directed to a member of staff who does not appear to be legally qualified, email correspondence could be forwarded by a solicitor or partner with that solicitor or partner’s email address provided as the address to which any response to the correspondence is to be sent. A further alternative would be for a particular email box to be created as the designated email address for correspondence to and from Mr Ellis, including by way of service of Court documents, and for that email address to be accessible only by the partner or solicitors working on the matter. As vile as Mr Ellis’ 8 June 2016 Email is, and as unnecessary as it is, it is arguably no worse than other material to which lawyers might sometimes be exposed in a variety of areas of civil law, albeit that such material is not usually directed at the lawyers concerned: see, by way of example, Milner & Milner [2016] FCCA 2254 at [73]-[75] per Judge Hartnett (family law); Trevena v Thiess Pty Ltd [2016] FCA 468 at [26] per Tracey J (fair work); Dye v Commonwealth Securities Ltd [2012] FCA 242 at [388] per Buchanan J (human rights).
Rottnest Lodge might also be entitled, in the event that it is entitled to any costs arising from the proceedings, to have its costs, either in whole or part, assessed on an indemnity basis by reason of the manner of Mr Ellis’ conduct of the litigation, including Mr Ellis’ 8 June 2016 Email. The manner in which a party conducts litigation is a factor in whether or not costs are awarded on an indemnity basis: Colgate-Palmolive Company & Anor v Cussons Pty Limited (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 28 IPR 561; FCR at 233-234 per Sheppard J; Sims v RM Capital Pty Ltd & Anor [2014] FCCA 2977 at [73(d), (e), (f) and (i)] per Judge Lucev. The Court expresses no final view as to whether there might be an entitlement to indemnity costs arising from Mr Ellis’ 8 June 2016 Email, but a party (including a self-represented litigant) which conducts itself in an unreasonable manner might be exposed to an order for costs in any event. The Court notes what was said by a Full Court of the Federal Court in Bahonko v Nurses Board of Victoria [2008] FCAFC 29 at [10]-[11] per Gyles, Stone and Buchanan JJ (“Bahonko”):
10. The liberty which the Court frequently extends to unrepresented litigants was systematically abused by Ms Bahonko in the present case. She seems unwilling to respect reasonable standards of conduct in the material which she appears to feel she may place before the Court as a matter of right. The processes of the Court and the Court itself are brought into disrespect if unreasonable relaxation of ordinary standards is extended to litigants in person simply for the reason that they are without legal assistance. There is no basis to think that the rights of any litigant in person are infringed or diminished by the steady insistence that proceedings in this Court are not be used as a means of sullying the reputation of other parties to the proceedings or third parties who are not directly involved in the proceedings at all. Ms Bahonko, by her conduct, breached the necessary standards in a systematic and apparently intentional way.
11. The findings we have made have the consequence that the respondents were again put to the burden of defending themselves against the use by Ms Bahonko of the processes of this Court when her attempted use of those processes, and the way in which she chose to invoke and pursue them, were without any merit. So far as an order for costs might give the respondents some measure of protection they were clearly entitled to have it.
Bahonko was followed by the Federal Court in Zaghloul v Woodside Energy Ltd (No. 2) [2013] FCA 947 at [74] per Gilmour J, where the Federal Court went on to further observe at [78] per Gilmour J that:
The Court does not exist as a vehicle for these personal assaults upon non-parties.
Having regard to all of the above factors, including the lack of apparent utility in the proposed restraint order, the failure to consider necessary consequential orders, the other means available to protect the non-lawyer staff of Rottnest Lodge’s solicitors, and other possible remedies which might ultimately be available to Rottnest Lodge, the Court does not propose to make the proposed restraint order set out in Rottnest Lodge’s application in a case.
Consideration – the substituted service order
Rottnest Lodge’s application in a case also seeks orders which are in the nature of orders for substituted service, and were described as such by Counsel for Rottnest Lodge, and which effectively seek to use the Court as a means of serving Mr Ellis with any documents, plus any correspondence, from Rottnest Lodge to Mr Ellis. Thus, the proposed orders for substituted service go further than such orders would ordinarily by including within their ambit any correspondence from Rottnest Lodge to Mr Ellis.
Some of the difficulties with respect to using the Court, and in particular the Registry, to effect substituted service of correspondence are outlined at [20] above, and need not be repeated further here.
Assuming for present purposes that the ordinary tests for substituted service apply both to Court documents and, for the purposes of these proceedings only, correspondence (and without deciding the issue in relation to correspondence) the Court notes that the tests for substituted service have been outlined in judgments of this Court in Societe Des Produits Nestle SA & Anor v Christian & Anor [2014] FCCA 367 (“Nestle SA”) and Fair Work Ombudsman v Goldfinger Facility Management Pty Ltd & Anor [2016] FCCA 356; (2016) 304 FLR 320 (“Goldfinger Facility Management”).
Rule 6.14 of the FCC Rules provides as follows:
6.14 Substituted service
(1) If, for any reason, it is impracticable to serve a document in a way required under this Part, the Court may make an order dispensing with service or substituting another way of serving the document.
(2) The Court may specify the steps to be taken for bringing the document to the attention of the person to be served.
(3) The Court may specify that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time.
Rule 6.15 of the FCC Rules sets out a non-exhaustive list of matters that the Court may have regard to in ordering substituted service, as follows:
6.15Matters to be taken into account
When making an order for dispensing with service or for substituted service, the Court may have regard to:
(a) whether reasonable steps have been taken to attempt to serve the document; and
(aa) whether it is likely that the steps that have been taken have brought the existence and nature of the document to the attention of the person to be served; and
(b) whether the person to be served could become aware of the existence and nature of the document by means of advertising or another means of communication that is reasonably available; and
(c) the likely cost to the party serving the document, the means of that party and the nature of the proceedings; and
(d) any other relevant matter.
In Nestle SA at [3] to [10] per Judge Manousaridis this Court reviewed the cases concerning dispensing with service under r.6.14 of the FCC Rules, and then went on to set out the matters about which the Court had to be satisfied before making an order for substituted service, as follows:
11. To satisfy the Court, therefore, that it is impracticable to serve by hand a document on a person that the rules require be served by hand, it is necessary for the party seeking to so persuade the Court to adduce evidence that tends to establish the following:
a) a diligent attempt has been made to discover the place or places at which the person may be served by hand the document, but that attempt has not produced reliable information about the place or places at which the person may be handed the document; or
b) if there is reliable information about the place or places at which the person may be handed the document, diligent attempts have been made to meet that person at that place or places with a view to handing that person the document, but those attempts have proved fruitless.
12. The second matter of which, in my opinion, the Court must be satisfied before it may make an order under r.6.14 of the FC Rules dispensing service is that the document “has been brought to the attention of the person to be served”. In the context of rules for substituted service which have used the same expression, it has been held that this requires the Court to be satisfied that the proposed method of substituted service (or the method of service actually undertaken) is reasonably likely to bring the proceedings to the notice of the person being served: Syndicate Mortgage Solutions Pty Ltd v Khaled El-Sayed [2009] NSWSC 207 per Brereton J.
Nestle SA at [11]-[12] per Judge Manousaridis.
The tests outlined in Nestle SA were followed and applied in Goldfinger Facility Management at [13] and [56]-[62] per Judge Lucev.
As the Court observed at the hearing of the application in a case the relevant tests are not met here. Mr Ellis is within the jurisdiction, and Rottnest Lodge has a physical address at which service may be effected, as well as a postal address, and there is no evidence of difficulty in actually serving Court documents upon, or sending correspondence to, Mr Ellis. As outlined above the only difficulty which has arisen thus far is Mr Ellis’ 8 June 2016 Email, and that is an isolated incident. Some of the difficulties of interposing the Court, and in particular the Registry, as a means of substituted service of both Court documents and correspondence are outlined above: see [20] above, and again need not be repeated. It suffices to add that the Court is not a post-office, and there is no reason for otherwise busy Registry officers, who have to deal with enough difficult matters as it is, to take on the role of process server for Rottnest Lodge, which has not given any evidence as to why it cannot serve relevant documents by the traditional means via a process server, or as to why it cannot receive Court documents and correspondence by email using the email address of a lawyer at Rottnest Lodge’s solicitors, or, a specific email address established for the purpose of sending and receiving documents to Mr Ellis to which only relevant lawyers might have access.
In the above circumstances, the Court is not satisfied that it ought to make the orders which have been described as orders for substituted service, as set out in Rottnest Lodge’s application in a case.
Conclusion
It follows from the conclusions reached above with respect to the orders sought by Rottnest Lodge in the application in a case that the application in a case must be dismissed. In circumstances where Mr Ellis did not appear, and where in any event he is a self-represented litigant, there should also be an order that there be no order as to costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 24 January 2017
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