FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v ROTTNEST LODGE (1989) PTY LTD TRADING AS ROTTNEST LODGE (No.2) | [2017] FCCA 190 |
| Catchwords: PRACTICE AND PROCEDURE – Application for extension of time to file originating application – factors to be considered on an extension of time application – whether any explanation for delay – whether any prejudice to the respondent if extension is granted – whether applicant has an arguable case – determination of what constitutes an arguable case upon an interlocutory application. |
| Applicant: | TROY ELLIS |
| Respondent: | ROTTNEST LODGE (1989) PTY LTD TRADING AS ROTTNEST LODGE |
| File Number: | PEG 69 of 2016 |
| Judgment of: | Judge Lucev |
| Hearing date: | 24 January 2017 |
| Date of Last Submission: | 24 January 2017 |
| Delivered at: | Perth |
| Delivered on: | 17 February 2017 |
REPRESENTATION
| For the Applicant: | In person (by telephone) |
| Counsel for the Respondent: | Mr MC Morgan |
| Solicitors for the Respondent: | Morgan Alteruthemeyer Legal Group |
ORDERS
That the time for filing of the Originating Application be extended to the time of actual filing of the Originating Application on 18 February 2016.
That the matter otherwise be adjourned to a further directions hearing at 3.30pm on 3 March 2017.
| 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
The applicant, Troy Ellis (“Mr Ellis”), filed an application on 18 February 2016 alleging that he was discriminated against by the respondent, Rottnest Lodge (1989) Pty Ltd Trading As Rottnest Lodge (“Rottnest Lodge”), because of a disability (“Originating Application”). Mr Ellis’ Originating Application was filed out of time, and he has applied for an extension of time within which to file the Originating Application (“Extension of Time Application”): Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”), s.46PO(2).
Background
Termination of complaint
The Australian Human Rights Commission (“AHRC”) terminated Mr Ellis’ complaint on 17 December 2015 pursuant to s.46PH(1)(i) of the AHRC Act (“Termination Notice”).
Earlier history of these proceedings
History relevant to these proceedings was set out in Ellis v Rottnest Lodge (1989) Pty Ltd Trading As Rottnest Lodge [2017] FCCA 84 (“Rottnest Lodge (No 1)”) at [5]-[12] per Judge Lucev as follows:
5. 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.
6. It would appear that a second copy of Mr Ellis’ originating application was lodged electronically with the Court on 21 March 2016.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. On 7 June 2016 Rottnest Lodge filed a Reply to Mr Ellis’ Submissions and Summary (“Rottnest Lodge’s Reply”).
Mr Ellis’ material in support of the Extension of Time Application
In Mr Ellis’ Submissions and Summary he set out, at [10], material in support of the Extension of Time Application, as follows:
FURTHER FACTS OF AND EVIDENCE FOR AN EXTENTION OF TIME
This was all caused by an issue with COURT FILING continually bouncing back to me that I had not filed the information correctly.
They were all minor communication issues and I consider that I was filing in good faith with the PERTH FEDERAL COURT REGISTRY and the REGISTRY should announce to the court that there was a distinct issue and I was attempting to file on several occasions.
I am only human and do not have a lawyer to assist with court paperwork when things go wrong with a simple and tiny communication error that could still allow documents in a PERTH FEDERAL COURT ongoing case to be submitted without the constant need to not pick and continue to raise a filing error and tell me it will not be accepted, especially when time is of the essence.
As there are also humans working at the PERTH FEDERAL COURT, it does take several days on some occasions to process ELODGED DOCUMENTS and it is also not the fault of COURT REGISTRY STAFF as they are not super heroes or psychic.
It must be considered that with any court or legal actions there can many things that can go wrong easily and it does not always have to constitute that a case should be dismissed or costs put on the applicant, as it would not be in the interests of justice to allow minor issues that can happen easily when you are dealing with imperfect humans.
(Transcribed from the original without amendment).
Rottnest Lodge’s Reply to Mr Ellis’ material in support of the Extension of Time Application
In response to [10] of Mr Ellis’ Submissions and Summary Rottnest Lodge submitted as follows at [11] of Rottnest Lodge’s Reply:
11. With respect to paragraph 10 of the Applicant's Submissions:
a.the Notice of Termination issued by the Australian Human Rights Commission relating to the Applicant's complaint was issued on 17 December 2015;
b.pursuant to s 46P0(2) of the Australian Human Rights Commission Act 1986 (Cth) the Applicant was required to file this application within sixty (60) days after the date of issue of the Notice of Termination;
c.the Applicant did not file this application until 21 March 2016, ninety-five (95) days after the date of issue of the Notice of Termination;
d.the Applicant's submissions are general in nature and do not specifically identify the “issues” that allegedly prevent the Applicant from filing this application in time;
e.there is no evidence to support the inference that the Applicant would have filed this application on time but for the “issues” asserted by the Applicant;
f.the Applicant is familiar with the procedures outlined in Division 2 of Part IIB of the Australian Human Rights Commission Act 1986 (Cth) and was aware of the time period in which this application was to be filed;
g.the fact that the Applicant is self-represented is irrelevant.
Hearing of the Extension of Time Application
The Extension of Time Application was listed for hearing at 2.15pm on 24 January 2017. What occurred at that hearing is best understood by reference to the Transcript at pages 2-4 which, relevantly, is as follows:
HIS HONOUR: Yes. Mr Ellis, you appear on your own behalf?
MR T. ELLIS: Yes.
HIS HONOUR: And for the respondent?
MR M. C. MORGAN: Morgan, sir.
HIS HONOUR: Yes. Thank you, Mr Morgan. Mr Ellis, this is your application for an extension of time in which to bring the application against Rottnest Lodge. The court, in looking at an application for an extension of time, is required to take into account three primary matters. They are the explanation for the delay, any prejudice to the respondent, and whether the applicant has an arguable case. The court notes that you have filed what’s described as a summary of – or an outline of submissions – in fact, your summary, but no affidavit material has been filed. Against that background, what do you want to say about why the court ought to extend time?
MR ELLIS: Because the court knows I was unwell.
HIS HONOUR: Well, Mr Ellis, the court doesn’t know that you were unwell. There’s no - - -
MR ELLIS: Well, they got – they’ve got plenty of documents and writing to say that.
HIS HONOUR: There’s no evidence before the court in this application – or otherwise, that I am aware of – that indicates that you are, or were, unwell at the time. And nor is anything said about that, with respect, in the factual summary. The factual summary seems to rely upon the rejection or otherwise of certain documents by the registry.
MR ELLIS: They’ve had document ..... more said it in writing. So she knows about it. So if they choose to ignore it because they’re corrupt and sleazy, that’s not my fault. You’ve got a corrupt courtroom there. You’ve got a corrupt court in general that hides information on purpose to punish me because they don’t like me. And you wonder why my attitude is there. Now you know why I’m so aggressive towards you, because you’re allowing it.
HIS HONOUR: Well - - -
MR ELLIS: And don’t worry, I’m taking this further. I’m talking to some people in power about what has been going on in this courtroom for the last few years because it’s inappropriate. You’ve made me jump through hoops for years, and all I’ve said to you – if you’re such a good judge, why don’t you go down there and have a look at what’s going on. Say, “Look, I’ve seen it myself. He’s right. I’m not even going to make him do all this paperwork.” And you know full well that I’m not well, physically, emotionally or otherwise. And you’re putting me through this hell .....
HIS HONOUR: Mr Ellis, I don’t know - - -
MR ELLIS: Yes, you do.
HIS HONOUR: - - - whether you are well or not or what - - -
MR ELLIS: Yes, you do.
HIS HONOUR: - - - precisely is said to be the disability or the extent of that disability or the extent to which it affects your capacity to run proceedings. But what I am saying to you is that in the factual summary that you have submitted for these proceedings, you’ve said nothing about illness but have said that the explanation for the delay relates to the conduct of the registry in relation to the rejection of documents.
MR ELLIS: Yes, that’s true. That’s true. You’ve got an idiot working there, a nameless idiot writing back to me from that court. Won’t even give me their name. How corrupt is that? How sleazy and corrupt. And telling me they won’t submit – I said, “You tell Judge Lucev. You explain to Lucev J why he didn’t get the paperwork then, you sleazebag.” And they were trying to say, “We’re not going to accept any more of your paperwork. You’re rude to us.” I will be rude to anyone who is acting outside the law, who is acting outside of the Public Service Act, lying and working in – of all our courtrooms. And I have got to put up with – then put up with you letting the lawyers win.
And you wonder why I’m swearing at you? I mean, what do you expect I’m going to do? This is the court’s self-defence. This country – I deserve self-defence to say – look, you once said in that courtroom disabled people have had enough. So you should be realising this. If you say that yourself, I’m going to use that against you in the High Court too. I’m going to use that against you in the High Court. And in the – when I end up in the UN Criminal Court, I’m going to use that against you too, to say that you accepted all their stuff. Have you been to Rottness Island and seen what a disaster it is for people who can’t walk straight? Go and have a look.
HIS HONOUR: Mr – Mr Ellis - - -
MR ELLIS: Have you been to .....?
HIS HONOUR: - - - I’m simply asking you - - -
MR ELLIS: ..... go and have a look. Why don’t you go and have a look then? If you’re such a good judge, why don’t you go and have a look? Why don’t you go look at Grill’d? They haven’t even put a ramp in there, instead they put in a million dollars on a new façade there, those arseholes. And they didn’t even put a ramp in on purpose because I complained. And I’ve got to then put more paperwork in.
What are you doing? What are you doing?
HIS HONOUR: Mr - - -
MR ELLIS: Are you completely corrupt or just incompetent or just don’t give a shit? I’m not interested. Fuck off.
Although it is not reflected in the Transcript Mr Ellis, who was appearing by telephone (also not reflected in the Transcript) hung up after uttering the words “Fuck off”.
Context for Mr Ellis’ remarks – earlier judgments delivered on 24 January 2017
On the date of the hearing of the Extension of Time Application a number of other alleged cases of disability discriminatin under the Disability Discrimination Act 1992 (Cth) (“DD Act”) involving Mr Ellis were listed. At 10.00am the Court delivered four judgments in relation to matters in which Mr Ellis was involved, and there were a number of other matters listed at 11.30am for directions, in one of which the Court made orders resulting in the dismissal of Mr Ellis’ application. In order to put Mr Ellis’ remarks in the Transcript in the proper context it is necessary to set out a brief summary of the judgments and orders made earlier on 24 January 2017 which concerned Mr Ellis.
In Ellis v Kanyana Wildlife Rehabilitation Centre Inc [2017] FCCA 89 at [52] per Judge Lucev (“Kanyana Wildlife”), the Court concluded that:
a)Mr Ellis’ Statement of Claim did not allege discrimination which:
i)is the same, or the same in substance, as the discrimination alleged in the relevant complaint to the Australian Human Rights Commission (“AHRC”); or
ii)arises out of the same, or substantially the same, acts, omissions or practices that were the subject of the relevant complaint to the AHRC;
b)Mr Ellis Statement of Claim did not identify the disability alleged, or how the discrimination arises because of any disability alleged;
c)Mr Ellis Statement of Claim should be struck out in its entirety; and
d)Mr Ellis should be granted leave to file a further Statement of Claim within a prescribed time.
In Ellis v Left Bank Holdings Pty Ltd [2017] FCCA 90 at [8] per Judge Lucev (“Left Bank Holdings”), the Court dealt with an application in a case by the respondent that Mr Ellis file and serve a full Statement of Claim setting out the basis of his claim against the respondent, and any affidavits in support of his Statement of Claim, and for discovery of relevant documents. In Left Bank Holdings at [36] per Judge Lucev the Court concluded that:
a)Mr Ellis was to file a Statement of Claim and affidavits in support of the Statement of Claim; and
b)it would not make a declaration or order in relation to discovery at the stage at which the proceedings had reached.
In determining that Mr Ellis was to file a Statement of Claim and affidavits in support of the Statement of Claim the Court:
a)had regard to the fact that Mr Ellis’ Originating Application in those proceedings failed to provide any detail as to his disability, or as to the basis upon which he claimed to have suffered discrimination because of his disability;
b)adverted to the fact that any Statement of Claim filed by Mr Ellis must set out the fact of any disability that he has, and upon which he relied for the purposes of the proceedings, and the extent of that disability insofar as it was relevant to those proceedings, and the existence and identity of any assistance dog or animal that he uses in relation to the disability; and
c)noted that Mr Ellis was 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 the disability, citing 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 (“Purvis”); Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 101 ALD 459; [2008] EOC 93-493 (“Gama”).
Left Bank Holdings at [17]-[18] per Judge Lucev.
In Ellis v Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust T/A Rottnest Express & Ors [2017] FCCA 88 at [48] per Judge Lucev (“Wadjemup Trading”), the Court set out a history of non-compliance with various orders of the Court over a number of months, before dismissing Mr Ellis’ application alleging disability discrimination against the second respondent (the Fremantle Port Authority (“FPA”)) for non-compliance with orders made by the Court in June 2016 and August 2016. It is pertinent to note that the June 2016 orders required Mr Ellis to file and serve a factual summary articulating the acts or omissions of the FPA that he alleged amounted to a breach of the DD Act, and to provide further facts and particulars in relation to those alleged acts or omissions, and that the August 2016 orders required Mr Ellis to file and serve an outline of submissions in relation to FPA’s application in a case to dismiss his application as against the FPA because of non-compliance with the June 2016 orders: Wadjemup Trading at [17] and [19].
In Rottnest Lodge (No 1) the Court had before it an application in a case for a communication restraint order and substituted service wherein the respondent sought to prevent Mr Ellis from communicating with it (and its solicitors) and for a form of substituted service by which the Court served relevant documents on Mr Ellis: Rottnest Lodge (No 1) at [2] per Judge Lucev. Those orders were sought because of a communication sent by email by Mr Ellis to a legal assistant at the respondent’s solicitors which the Court described as “vile”: Rottnest Lodge (No 1) at [15] per Judge Lucev. For reasons set out in Rottnest Lodge the Court ultimately dismissed the respondent’s application in a case for orders against Mr Ellis, and there was no order as to costs: Rottnest Lodge (No 1) at [36] per Judge Lucev.
In each of Kanyana Wildlife, Left Bank Holdings and Wadjemup Trading costs were ordered against Mr Ellis in the amounts of $4,010.50, $3,470.00 and $4,958.00 respectively.
In Ellis v Silver Vision Pty Ltd trading as Arirang Korean BBQ Restaurant & Café (No 2) [2017] FCCA 151 (“Arirang Restaurant (No 2)”) the Court made orders dismissing Mr Ellis’ application by reason of non-compliance with earlier Court orders, and ordered Mr Ellis to pay costs on an indemnity basis, by reason of his conduct of the proceedings and before the Court.
Extension of time – legislation
Section 46PO(2) of the AHRC Act:
a)provides that an application to this Court made under s.46PO(1) of the AHRC Act must be made within 60 days after the date of issue of the Termination Notice; and
b)empowers the Court to extend the time within which an application under s.46PO(1) of the AHRC Act can be made.
Factors – extension of time
The relevant factors to be considered on an extension of time application under s.46PO(2) of the AHRC Act are set out in Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449; (2007) 97 ALD 721 at [47] and [48] per Middleton J (“Bahonko (No 4)”) where the Federal Court observed as follows:
47. Under s 46PO(2), it is clear that the Court has a discretion to grant an extension of time. The principles to be considered when deciding whether to extend time for the filing of an application were described by Weinberg J in the decision of Bahonko v RMIT [2006] FCA 1325 at [21] to [24]. His Honour referred to the principles expounded by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which related to an application for an extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) … and held that the principles therein stated were applicable to s 46PO. I respectfully agree with Weinberg J that those principles are relevantly applicable to an application under the HREOC Act [now the AHRC Act].
48. The main three matters that need to be taken into account are:
• the explanation of the delay;
• any prejudice to the respondent; and
• whether the applicant has an arguable case.
See also Amponsem v Laundy (Exhibition) Pty Ltd [2014] FCA 94 at [7] per Farrell J; Croker v TAFE Commission [2009] FCA 1024 (“Croker”); Matthews v Hargreaves [2010] FMCA 840 at [9] per Lucev FM (“Matthews”).
The Court’s discretion in relation to the extension of time factors is not fettered by the above factors: Seiler v Minister for Immigration, Local Government & Ethnic Affairs (1994) 48 FCR 83 at 97 per French J (“Seiler”); Mentink v Minister for Home Affairs [2013] FCAFC 113 at [36] per Griffiths J (with whom Edmonds J agreed: at [2]) (“Mentink”).
Applying the factors to the Extension of Time Application
Delay
The extent of the delay in this case is three days. The Termination Notice issued on 17 December 2015, and the 60th day after that is 15 February 2016. As noted in the extract from Rottnest Lodge (No 1) set out at [2] above, the Originating Application in these proceedings was lodged electronically on 18 February 2016. Rottnest Lodge opposed the Extension of Time Application on the basis that the Originating Application was 95 days out of time having been filed on 21 March 2016. Whilst a second originating application was lodged electronically with the Court on 21 March 2016, the Originating Application lodged electronically on 18 February 2016 was in the same terms as the second originating application. By reason of the orders made at the directions hearing on 9 March 2016 for the Originating Application to be served on Rottnest Lodge, the Court infers that what may have happened is that Mr Ellis lodged a second originating application to serve on Rottnest Lodge, rather than serving the Originating Application lodged on 18 February 2016. In any event, the first Originating Application was lodged on 18 February 2016, and the delay is therefore three days.
Mr Ellis endeavours to explain the delay in Mr Ellis’ Submissions and Summary. The explanation given by Mr Ellis appears to be that he endeavoured to file a document, which was “continually bouncing back to me” and that there were “minor communications issues” between Mr Ellis and the Registry, and that there was a “filing error” which resulted in him being told that the document “will not be accepted”. No date for these events is given by Mr Ellis. Nor does he indicate to whom he actually spoke or corresponded in relation to these issues. The Court does however observe that “minor communication issues” and “a simple and tiny communication error”, and something which was “also not the fault of COURT REGISTRY STAFF as they are not super heroes or psychic”: Mr Ellis Submissions and Summary at [10], had, by the time of the hearing of the Extension of Time Application, become conduct which was alleged to be “corrupt and sleazy” and the work of a “nameless idiot” who would not give Mr Ellis their name, and which he therefore characterised as “sleazy and corrupt”: see [6] above - Transcript at pages 2 and 3. Because of the failure to set out the relevant events with more precision, it is not evident from Mr Ellis’ Submissions and Summary as to precisely what occurred.
The Court has reviewed the file, which is an electronic Court file (“ECF”). Under the heading “File Management” and sub-heading “Rejected Documents” no documents appear to have been filed. That does not mean that there were not documents which were rejected, for it may be that they have simply not been filed under the “Rejected Documents” tab on the ECF. The other alternative is of course that there were no such rejected documents. There is, however, on the “Court File” under the tab “File History” a document dated 18 February 2016 the title of which is “ROTTNEST LODGE – FEE WAIVER – SECOND ATTEMPT”. An examination of that document indicates that it is an “Application for Exemption from Paying Court Fees – General” (“Fee Exemption Application”) in which Mr Ellis makes an application for exemption from payment of fees on the basis that he is currently the holder of a Pensioner Concession Card. Mr Ellis has dated the Fee Exemption application 27 December 2015. The Court notes that that is ten days after the issuance of the Termination Notice.
The Court notes that the application for fee exemption is filed on the ECF on 18 February 2016 with a time noted as 12.00am, that is more than 13 and a half hours before the Originating Application was filed.
Against the above factual background it does not appear that there is any other means of determining whether an applicant, in this case Mr Ellis, endeavoured to access the Court Registry portal for the purposes of filing the Originating Application, at any time prior to the filing of the Originating Application on 18 February 2016 at 1.39pm.
The Court considers that it is open to infer from the title of the application for fee exemption filed on the ECF, namely “ROTTNEST LODGE – FEE WAIVER – SECOND ATTEMPT” that there had been an earlier attempt by Mr Ellis to file a document or documents in relation to this matter. By reason of the date and time on the application for fee exemption that earlier attempt to file a document or documents must have been before 18 February 2016. That is consistent with the limited description given by Mr Ellis in Mr Ellis’ Submissions and Summary.
The Court is therefore prepared to infer that there was an earlier endeavour to file a document (whether it be an application for fee exemption or the Originating Application) in these proceedings, that is earlier than the filing of the Originating Application on 18 February 2016. That goes some way to explaining the short delay in filing the Originating Application.
At the hearing of the Extension of Time Application Mr Ellis sought to advance the proposition that he was ill at or about the time of filing of the Originating Application. As the Court then observed:
a)the explanation of illness is not given in Mr Ellis’ Submissions and Summary; and
b)Mr Ellis filed no evidence in relation to his illness in these proceedings.
See [6] above - Transcript at pages 2-3.
The Court’s review of the file has revealed no document, whether by way of letter, email or court filed document, in this matter, either at or about the time of the filing of the Originating Application, or at another time, which indicates that Mr Ellis was ill at or about the time of the filing of the Originating Application. There is a request for audio-link hearings sent to the Court by Mr Ellis on 12 January 2017, which indicates that Mr Ellis’ health was “still poor” and for that reason he sought audio-link hearings. That request was approved by the Court insofar as it related to directions hearings and interlocutory hearings, but Mr Ellis was advised that any request for a final hearing by audio-link would require an application in a case supported by an affidavit. In any event, the request for an audio-link hearing on the basis of ill health was made more than 11 months after the filing of the Originating Application.
In order to prove that he was medically unfit at the time at which the Originating Application was required to be filed would require evidence on oath which properly explains Mr Ellis’ medical condition, and why it prevented him from filing the Originating Application on time. Mr Ellis was given the opportunity to do this by order 3 of the Court’s order of 11 April 2016 which provided that within 14 days of that order “the Applicant file and serve submissions and evidence in support of his application for an extension of time” (emphasis added).
The requirement to file evidence on oath properly explaining a medical condition where an indulgence (such an adjournment or an extension of time) is sought from a Court on the basis of the alleged medical condition is well established.
In Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck”) the Full Court of the Federal Court was dealing with an application for adjournment by an appellant who claimed inability to manage both preparation and appearances necessary to conduct her appeals and make proper submissions, relying on a letter from a medical practitioner in relation to symptoms relating to her heart, and referral for assessment for myocardial infarction, and stresses induced by matters exacerbating her symptoms both mental and physical: Luck at [20] per Collier, Griffiths and Mortimer JJ. In Luck the Full Court of the Federal Court observed at [48] and [49] per Collier, Griffiths and Mortimer JJ as follows:
48 Her medical evidence is unpersuasive. It is not verified on affidavit, a matter which has been highlighted in earlier cases in which Ms Luck has unsuccessfully relied on similarly worded assessments by Dr Leow: see for example Luck v University of Southern Queensland [2014] FCAFC 135 at [16], referring to Luck v University of Southern Queensland (No 2) [2013] FCA 1141 at [11]-[17] (in turn discussing Luck v University of Southern Queensland (No 4) [2011] FCA 433). Dr Leow’s letter in this proceeding refers to conditions Ms Luck has suffered since at least 2013. There is nothing in the letter concerning any recent development, exacerbations, or new diagnoses. The treatment to which it refers appears to be treatment Ms Luck has been undergoing for some time, and at least since 2009: see Luck v Chief Executive Officer, Centrelink [2009] FCAFC 54 at [23]. It is unclear what Dr Leow means by “litigation duties”. No “duty” is imposed on Ms Luck in relation to litigation: rather, she has elected to bring multiple proceedings in this Court, and in other courts, challenging a variety of decisions which generally relate to applications (such as FOI applications) she has chosen to make. Ms Luck herself compounds the amount of litigation she has to deal with by applications such as repeated stay and removal, and special leave, applications to the High Court. The amount of preparation for hearings, interlocutory applications and appeals she needs to undertake is in that sense a self-fulfilling prophecy. Despite the underlying subject matter of all Ms Luck’s litigation concerning events which happened many years ago, and flowed from choices she made to make certain applications, Dr Leow says nothing about whether she has recommended to Ms Luck any voluntary reduction in her litigation in order to assist her to recover her health.
49 There is nothing in Dr Leow’s letter which suggests Ms Luck’s conditions have worsened, and certainly not in any way which could be said to be connected to what she must do in the month leading up to 21 May 2015 to prepare for these two appeals: see generally the observations of Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [6]-[8] …
In NAKX v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1559 at [5]-[10] per Lindgren J the Federal Court observed as follows concerning medical certificates provided by appellants to explain their non-attendance at a hearing:
5 The medical certificate dated 13 December 2003 in respect of the male applicant states as follows:
‘This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.’
The certificate of the same date in respect of the female appellant states:
‘This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.’
6 The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.
7 I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ – apparently each was able to attend upon the medical practitioner.
8 If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.
9 I take into account the fact that the two medical certificates are structured identically, use the expression ‘he/she’, and are dated the same day, which was only two days before the hearing. The certificates have the appearance of being pro forma certificates which are available for the asking.
10 In any event, even accepting the certificates on their face, I find them unpersuasive for the reasons given at [6]–[8] above.
Recently, the Federal Court has observed that an applicant wishing to give evidence of reasons for not attending a hearing on medical grounds, would need to give sworn evidence: BYF15 v Minister for Immigration & Border Protection [2016] FCA 774 at [35] per Perry J.
In WZAWB v Minister for Immigration & Anor [2016] FCCA 1345; (2016) 309 FLR 398 (“WZAWB”) this Court refused to extend time to file an application in circumstances, where amongst other things, it was suggested that the applicant had diminished capacity by reason of a psychological or psychiatric condition. In WZAWB at [98] per Judge Lucev the Court observed as follows:
In this case, apart from a comment made in the course of an interview with a Departmental officer by the applicant himself, there is no evidence of the applicant having any psychological or psychiatric condition resulting in a diminished capacity to make the application. There is no evidence of any medical or allied health professional treating the applicant, and no affidavit evidence from a medical practitioner or allied health professional in relation to any psychiatric or psychological condition affecting the applicant. The submission also runs into the difficulty that the comments were made in November 2014 by the applicant, by which time he was already more than 19 months out of time for filing of the application.
In AWX16 v Minister for Immigration & Anor [2016] FCCA 928 at [45(e)] per Judge Lucev this Court observed as follows:
e) there is simply no evidence of the applicant suffering from mental health issues, or what those mental health issues are, or how if he has mental health issues they affect, or affected, his capacity to lodge the Judicial Review Application within the prescribed time. It is not sufficient for an applicant to simply assert as a ground of review that the applicant has mental health issues, and say what they are, and how they might affect him, because:
i) the grounds are not of themselves evidence; and
ii) there is no evidence that the applicant is an expert, and there is no evidence from the applicant annexing, for example, his medical records, so as to provide a proper basis for an evidentiary finding by this Court as to the applicant’s state of mental health and its affect upon him for the purposes of lodging the Judicial Review Application.
In this case, Mr Ellis’ endeavour to justify the short delay in filing the Originating Application on the basis of a medical condition or illness must fail because:
a)there is no evidence of the medical condition or illness before the Court relevant to the time at or about which the Originating Application was electronically lodged;
b)Mr Ellis was given an opportunity to file evidence in the Extension of Time Application and filed nothing in relation to any alleged medical condition or illness;
c)in any event, Mr Ellis did file Mr Ellis’ Submissions and Summary and therein dealt with his Extension of Time Application, but made no mention of any medical condition or illness which might affect, or which had affected, his capacity to file the Originating Application within time; and
d)Mr Ellis’ Submissions and Summary at [10] demonstrate that at or about the time that he filed the Originating Application he had been “attempting to file on several occasions”, and was thereby engaging with the electronic lodgement process in a manner inconsistent with the assertion now made that he could not file on time by reason of a medical condition or illness: see [4] above.
Prejudice to Rottnest Lodge
There is no specific evidence of prejudice to Rottnest Lodge because of the delay. In the circumstances, the Court will proceed on the basis that there is no relevant prejudice to Rottnest Lodge, other than that it was entitled to consider the matter finalised within 60 days after the Termination Notice was issued, and was therefore entitled to consider that these proceedings had not been commenced. The Court observes, however, that the absence of prejudice is not of itself sufficient to warrant an extension of time: Bahonko (No 4) at [53] per Middleton J; Croker at [19] per Edmonds J; Matthews at [16] per Lucev FM.
Arguable case
As set out above the Originating Application simply says that the grounds of the application are “disability discrimination”: see [3] above quoting Rottnest Lodge (No 1) at [5] per Judge Lucev. No particulars of the disability discrimination were provided in the Originating Application. It has previously been observed that the application form required to be filed under r.41.02A of the Federal Circuit Court Rules (Cth) (“FCC Rules”) “does not necessarily assist in assessing the arguability of an applicant’s claims on an extension of time application”: Matthews at [18] per Lucev FM, and that it “does not necessarily require an applicant to set out their claim of discrimination in a manner which discloses its substance”: Kanyana Wildlife at [11] per Judge Lucev, with the consequence that “at first directions hearings in claims under federal discrimination legislation in this Court, it will often be necessary to direct that an amended Application Form be filed including points of claim, or to direct that a statement of claim or points of claim, or affidavit, be filed”: Kanyana Wildlife at [12] per Judge Lucev. The Court notes that the equivalent form for the making of human rights applications in the Federal Court has been held not to be a form of originating process, a pleading nor particulars of a pleading: Reynolds v JB Morgan Administrative Services Australia Ltd & Anor (No 2) [2011] FCA 489; (2011) 193 FCR 507; (2011) 280 ALR 612 at [17] and [24] per Rares J; Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) 116 IR 186 at [25] per Allsop J.
In these proceedings the Court’s 11 April 2016 orders provided for Mr Ellis to file and serve a factual summary of the acts or omissions alleged to amount to a breach of the DD Act.
Mr Ellis’ Submissions and Summary provided as follows in relation to the alleged disability discrimination:
1.
I and my elderly mother found the conditions of the ROTTNEST LODGE to be substandard when it came to complete DISABILITY ACCESS and DUTY OF CARE.
2.
The one and only major ramp we did find at the restaurant was so shockingly steep and short and did not have a safety rail.
It was a shocker and I and my mother freaked out but we had to eat, so we gave it a try, even though dangerous, we did not get any help from any staff member whatsoever.
3.
We have still not received any refunds or an apology for this disgrace.
4.
All facilities in general, travelling to, staying and travelling on ROTTNEST ISLAND has shoddy DISABILITY ACCESS, DANGEROUS PAVED AREAS, LONG DISTANT WALKS FOR ELDERLY and the DISABLED from the wharf with luggage in tow and many UNRAILED and STEEP RAMP AREAS.
ROTTNEST ISLAND AND ALL FACILITIES ARE A DEATH TRAP FOR THE DISABLED AND THE ELDERLY.
5.
The ROTTNEST LODGE is in poorly maintained safety conditions, with trip risks on damaged paved areas and high level footpath edges that seem eroded away that you could easily slip off if elderly or disabled and even one doorway without a ramp all together.
6.
When we booked this ROTTNEST LODGE stay, we were told the premises were 100% DISABILITY ACCESSIBLE and it was simply not true.
7.
This was all about greed, as the owner is an excessively wealthy man who was always going to redevelop the site and why should he spend $10,000 making the place safe and fully disabled accessibility, when he would have to dig it back up again one day.
THAT ONE DAY LOOKS LIKE IT IS NOW NEVER GOING TO EVENTUATE, SO AN ACCOMODATION FACILITY OWNED BY THE BILLION DOLLAR KARMA PROPERTY GROUP AND THIS MAN HAS NO EXCUSE WHATSOEVER FOR DISABILITY DISCRIMINATION AND AN UNSAFE VENUE FOR EVEN THE ABLE BODIED.
8.
This is also the blame of the WA STATE GOVERNMENT, as their HATRED OF THE DISABLED is evident in all aspects of the CORRUPT BARNETT GOVERNMENT who refuses us a life of the standard enjoyed by others, as the ROTTNEST ISLAND AUTHORITY knows too well that ROTTNEST ISLAND is 100% substandard for the disabled and the elderly and they DO NOT CARE.
THIS IS EVIDENT AS PREMIER COLIN BARNETT DOES NOT EVEN WANT DISABLED PEROSNS IN WA TO HAVE AN NDIS LIKE THE REST OF AUSTRALIA BECAUSE HE IS A CORRUPT, HUMAN RIGHTS ABUSIVE AND DISABLED HATING CRIME BOSS.
ROTTNEST ISLAND AUTHORITY IS A WA GOVERNMENT AUTHORITY AND THE PSYCHOPATH PREMIER IS THE ILLEGITIMATE LEADER OF THE WA PEOPLE, AS HIS ONLY JOB IS PROTECTING THE INTERESTS OF THE WEALTHY, FAMOUS, INCOMPETENT, PLAIN NUTS AND CORRUPT, FULL STOP!
9.
WHAT ACTS OR OMISSIONS OF DISABILITY DISCRIMINATION ACT 1992 (CTH)
DISABILITY INACCESSIBLE, NO RAMPS AND ONE INADEQUATE RAMP AND NO SAFETY RAILS, NUMEROUS DANGEROUS TRIP HAZARD FLOORING SURFACES.
(Transcribed from the original without amendment).
Rottnest Lodge’s Reply to Mr Ellis’ Submissions and Summary above was as follows:
2. With respect to paragraph 1 of the Applicant's Submissions:
a.the Applicant does not specify what disability access standard the Respondent is alleged to have breached;
b.the Applicant is not suitably qualified to reach conclusions as to the standard of disability access at the Respondent's premises;
c.the Applicant does not specify what duty of care the Respondent is alleged to owe;
d. the Applicant does not specify how any act or omission of the Respondent amounts to a breach of any section of the Disability Discrimination Act 1992 (Cth); and
e. the Respondent otherwise denies the allegations made by the Applicant.
3. With respect to paragraph 2 of the Applicant's Submissions:
a. the Respondent denies that any ramp on the Respondent's premises is “shockingly steep and short”;
b. there is no evidence to support the allegation relating to any ramp on the Respondent's premises;
c. the Applicant is not suitably qualified to reach conclusions as to the safety of any ramp on the Respondent's premises;
d. the Applicant does not specify how any act or omission of the Respondent amounts to a breach of any section of the Disability Discrimination Act 1992 (Cth); and
e. the Respondent otherwise denies the allegations made by the Applicant.
4. With respect to paragraph 3 of the Applicant's submissions:
a. the submission is irrelevant; and
b. the Respondent denies it is liable to issue a refund or apology to the Applicant.
5. With respect to paragraph 4 of the Applicant's submissions:
a. there is no evidence to support the allegations made by the Applicant; and
b. the submission is irrelevant.
6. With respect to paragraph 5 of the Applicant's Submissions:
a. the Applicant is not suitably qualified to reach the conclusions made within the allegations;
b. there is no evidence to support the allegations made by the Applicant; and
c. the Respondent denies each and every allegation made by the Applicant.
7. With respect to paragraph 6 of the Applicant's Submissions:
a. the Applicant does not specify when or how he booked accommodation at the Respondent's premises;
b.the Applicant does not provide any particulars of the allegation that “we were told the premises were 100% DISABILITY ACCESSIBLE and it was simply not true.”;
c.there is no evidence to support the allegations made by the Applicant;
d. the Respondent says that the Applicant contacted the Respondent by telephone on 17 April 2015 and made a reservation at the Respondent's premises for a one (1) night stay. The Applicant requested a ground floor room and indicated the stay was for his birthday; and
e. the Respondent otherwise denies the balance of the allegations made by the Applicant.
8. With respect to paragraph 7 of the Applicant's Submissions:
a. there is no evidence to support the allegations made by the Applicant; and
b. the submission is irrelevant.
9. With respect to paragraph 8 of the Applicant's Submissions:
a. there is no evidence to support the allegations made by the Applicant; and
b. the submission is irrelevant.
10. With respect to paragraph 9 of the Applicant's Submissions:
a. the Applicant's allegations are general in nature and do not specify precisely the acts or omissions by the Respondent that are complained of;
b. there is no evidence to support the allegations made by the Applicant;
c. the Applicant does not provide particulars as to which provisions of the Disability Discrimination Act 1992 (Cth) the Respondent is alleged to have breached;
d.the Applicant does specify any causal link between any act or omission of the Respondent and any breach of any section of the Disability Discrimination Act 1992 (Cth); and
e. the Respondent denies each and every allegation made by the Applicant.
In assessing whether or not there is an arguable case on the Originating Application for the purposes of an interlocutory application, such as the Extension of Time Application:
a)it is necessary for the Court to recognise that its discretion is not fettered by the factors set out at [17] above: see [18] above, citing Seiler at 97 per French J; Mentink at [36] per Griffiths J (with whom Edmonds J agreed: at [2]);
b)it is necessary for appropriate caution to be exercised in assessing the merits: Mentink at [37] per Griffiths J and [57] per Pagone J, both citing Seiler at 98 per French J; and
c)the proper approach is that it is inappropriate for the purposes of assessing an arguable case to fully investigate the merits, although an obvious strength or weakness in Mr Ellis’ case is a factor for or against the exercise of the discretion to extend time: ActewAGL Distribution v Australian Energy Regulator [2011] FCA 639; (2011) 195 FCR 142; (2011) 123 ALD 486 at [111] per Katzmann J (following Seiler at 98 per French J) cited in Mentink at [38] per Griffiths J.
Even for the purposes of a preliminary consideration of the kind required to determine whether there is an arguable case on an interlocutory application it is obvious that much of the “factual” material which Mr Ellis might seek to rely upon, as set out in Mr Ellis’ Submissions and Summary, is irrelevant, argumentative, opinion or commentary, or scandalous, or some combination of some or all of the above, and would not be admissible in support of Mr Ellis’ case: see, for example, [1], [3], [4], [7] and [8] of Mr Ellis’ Submissions and Summary. It can, however, on the basis of parts of [2], [5] and [9] of Mr Ellis’ Submissions and Summary still be said that there is a discernible allegation of disability discrimination: Rottnest Lodge (No 1) at [10] per Judge Lucev.
The Court notes that in Rottnest Lodge’s Reply it is said that:
a)there is no evidence to support the allegations;
b)the alleged breaches of the DD Act are not specified; and
c)Mr Ellis does not have the qualifications to make assertions concerning various of the matters that he alleges.
The Court has certainly not been assisted by the fact that Mr Ellis filed no evidence in support of the Extension of Time Application as he was ordered to do, nor is it assisted by the fact that there is a lack of specificity concerning which sections of the DD Act are alleged to have been breached. The issue as to a person’s qualifications to make various observations or conclusions is ultimately a matter for hearing, and not much turns on this issue for present purposes.
The Court, however, notes:
a)its earlier criticism of the provisions of the FCC Rules which do not require an applicant to set out their claim of discrimination in a manner which discloses its substance, either factually or legally: see [37] above;
b)the order made for Mr Ellis to file a factual summary of the acts or omissions alleged to amount to a breach of the DD Act and to file and serve submissions and evidence in support of the Extension of Time Application was the first, and thus far only, opportunity that Mr Ellis has therefore had to set out the factual and legal substance of his claim of disability discrimination in these proceedings; and
c)Mr Ellis is a self-represented litigant, and the Court has allowed him at a not dissimilar stage in other proceedings (albeit in relation to applications to dismiss on the basis of no reasonable prospect of success, or for the filing of a statement of claim and affidavits providing the substance of his claims) a further opportunity to put his claim in proper order: Kanyana Wildlife at [47] and [52(d)] per Judge Lucev; Left Bank Holdings at [20] and [36(a)] per Judge Lucev.
In relation to the present limited scope of the Extension of Time Application the Court considers that it is open to infer from the materials presently before the Court that Mr Ellis alleges some (presently unspecified) kind of mobility disability, and that he alleges that at Rottnest Lodge there were breaches of the DD Act or some disability standard (both presently unspecified), related to there being:
a)no proper ramps, or at least inadequate ramping;
b)no safety rails; and
c)trip hazards,
which made Rottnest Lodge’s premises either inaccessible in part, or less accessible, to him as a person with a mobility disability. In all of the circumstances of this case, the Court is satisfied that that is sufficient to raise an arguable case for the present limited purposes of the Extension of Time Application.
It is necessary to observe that Mr Ellis’ conduct at the hearing on 24 January 2017 did not necessarily evince an intention not to take any further steps in these proceedings, or at least not manifestly so: contrast Arirang Restaurant(No 2) at [29(e)] per Judge Lucev.
It is unnecessary to deal with Mr Ellis’ invitation to independently inspect the premises the subject of these proceedings: for reasons set out in Arirang Restaurant(No 2) at [39]-[44] per Judge Lucev it is not the function of a judicial officer to undertake an independent inspection of premises without the parties or their representatives present.
Finally, the Court observes that proper pleadings: Shurat Hadin, Israel Law Center v Lynch (No 2) [2014] FCA 413 at [35]-[37] per Robertson J, as well as evidence to identify the relevant disability, its extent and its relationship to the alleged discrimination: Gama at [90]-[91] per French and Jacobson JJ, still need to be filed in these proceedings. In the circumstances, this may be an appropriate case for a referral of Mr Ellis for legal assistance under r.12.02 of the FCC Rules. That is a matter which can be addressed at the next directions hearing.
Conclusion and orders
The Court has carefully considered all of the circumstances, and has concluded that there is some explanation for the delay in filing the Originating Application, that there is an arguable case on the basis of the assessment required for the purposes of the Extension of Time Application, and that consideration of those factors outweighs any prejudice which Rottnest Lodge might suffer by reason of the late filing of the Originating Application. On balance, the Court has concluded that it is therefore appropriate to extend time for Mr Ellis to file the Originating Application.
There will therefore be an order that the time for filing of the Originating Application be extended to the time of actual filing of the Originating Application on 18 February 2016. Otherwise, the matter will be adjourned to a further directions hearing at 3.30pm on 3 March 2017.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 17 February 2017
- AGLC
- Ellis v Rottnest Lodge (1989) Pty Ltd Trading As Rottnest Lodge (No 2) [2017] FCCA 190
- Case
- [2017] FCCA 190
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether to grant Mr Ellis an extension of time to file his originating application. This required the Court to consider several factors, including whether Mr Ellis had provided a sufficient explanation for the delay in filing, whether Rottnest Lodge would suffer prejudice if an extension were granted, and whether Mr Ellis had an arguable case. The Court also had to determine what constitutes an arguable case in the context of an interlocutory application for an extension of time.
Judge Lucev noted that to justify an extension of time based on medical unfitness, Mr Ellis was required to provide evidence on oath properly explaining his medical condition and how it prevented him from filing on time. The Court observed that Mr Ellis had been given an opportunity to provide such evidence but had not done so. The Court referred to the decision in *Luck v Chief Executive Officer of Centrelink* [2015] FCAFC 75, which highlighted the importance of medical evidence being verified by affidavit and the need for it to demonstrate a recent development or exacerbation of a condition connected to the litigation. The Court found Mr Ellis's medical evidence, as presented, to be unpersuasive and insufficient to warrant an extension of time.
The application for an extension of time was dismissed.
Orders
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