Ellis v Scentre Shopping Centre Management WA Pty Ltd Trading As Westfield Shoppingtown Carousel Pty Ltd
[2017] FCCA 228
•13 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v SCENTRE SHOPPING CENTRE MANAGEMENT WA PTY LTD TRADING AS WESTFIELD SHOPPINGTOWN CAROUSEL PTY LTD | [2017] FCCA 228 |
| Catchwords: PRACTICE AND PROCEDURE – Dismissal for non-appearance. |
| Legislation: Disability Discrimination Act 1992 (Cth), ss.5, 23, 24 Federal Circuit Court of Australia Act 1999 (Cth), ss.66-72 Federal Circuit Rules 2001 (Cth), r.13.03C(1)(c) |
| Cases cited: Ellis v Kanyana Wildlife Rehabilitation Centre Inc [2017] FCCA 89 |
| Applicant: | TROY ELLIS |
| Respondent: | SCENTRE SHOPPING CENTRE MANAGEMENT WA PTY LTD TRADING AS WESTFIELD SHOPPINGTOWN CAROUSEL PTY LTD |
| File Number: | PEG 294 of 2014 |
| Judgment of: | Judge Lucev |
| Hearing date: | 13 February 2017 |
| Date of Last Submission: | 13 February 2017 |
| Delivered at: | Perth |
| Delivered on: | 13 February 2017 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the Respondent: | Mr C Slater |
| Solicitors for the Respondent: | Watts Legal Consultants |
ORDERS (made on 13 February 2017)
Pursuant to r.13.03C(1) of the Federal Circuit Court Rules 2001 (Cth) the application be dismissed.
The applicant pay the respondent’s costs in the sum of $16,825.50 by 10 March 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 294 of 2014
| TROY ELLIS |
Applicant
And
| SCENTRE SHOPPING CENTRE MANAGEMENT WA PTY LTD TRADING AS WESTFIELD SHOPPINGTOWN CAROUSEL PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
This is an application filed on 24 September 2014, which alleges disability discrimination. The orders sought in the originating application are an apology, that the issues be rectified, and $1,000,000 compensation for stress, humiliation and for money that the applicant alleges should have been spent on a variety of matters including, for example, infrastructure and staff training. The application has no particulars of either the disability or how the discrimination is said to arise because of the disability, but as the Court has observed in other cases, that has more to do with the nature of the form on which the application is made than any error on the part of a self-represented litigant: see, for example, Ellis v Kanyana Wildlife Rehabilitation Centre Inc [2017] FCCA 89 at [11]-[12] per Judge Lucev.
There was a first directions hearing in this matter on 17 November 2014, and orders were made for the applicant to file and serve a statement of claim and any affidavits in support of his claim. A statement of claim was filed on 12 December 2014. That statement of claim is not in the usual form, but rather in a very general narrative form, and does not identify any disability from which the applicant suffers. An affidavit was also filed on 12 December 2014 by the applicant and refers generally to mental and physical damage, and does refer to the fact that the applicant might be subject to falls and muscle strain if forced to park in a non-ACROD bay, or if he has to walk a long distance to the shopping centre, the subject of this litigation. The Court notes that much of the content of that particular affidavit is irrelevant and vague, and the Court also notes that at this time, and during the course of this litigation, no medical evidence has been filed as to the nature of the applicant’s disability or its effect upon him for discrimination purposes. On 22 December 2014 the respondent filed a response opposing the orders sought.
There was a further directions hearing on 9 February 2015 at which the matter was referred for mediation and at which the applicant was referred to a Registrar of the Court for the issuance of a pro bono certificate generally for assistance by a legal practitioner, in relation to the proceedings. The Court notes that the applicant has not, however, subsequently been represented by a legal practitioner in these proceedings.
On 21 February 2015, for reasons which are not apparent, the applicant filed a further statement of claim which refers to the Disability Discrimination Act 1992 (Cth) (“DD Act”), and sets out references to ss.5, 23 and 24 of the DD Act. The further statement of claim quite literally just sets those references out, and then refers back to the previous statement of claim filed on 12 December 2014 for the detail.
There was a mediation on 28 April 2015, as the Court had ordered, and the report of listing of that mediation is that it was terminated because the matter did not settle.
On 13 July 2015, there was a directions hearing at which the applicant did not appear and the matter was adjourned to 14 July 2015. The Court notes that the applicant then appeared in person, as he had done on previous occasions save for 13 July 2015. On 14 July 2015 various orders were made for the filing of a defence, further affidavits and outlines of submissions by both parties, and the matter was listed for hearing on 7 March 2016. Regrettably, that day was a public holiday and the matter was subsequently re-listed. There were affidavits filed by Ms Halsgrove on behalf of the respondent, and by the applicant, but again no medical evidence, and the applicant’s affidavit filed on 2 November 2015 was very similar to the affidavit filed on 12 December 2014 and suffered from many of the same vices in terms of irrelevance and vagueness of its material.
The applicant also filed an outline of submissions on 2 November 2015. The best that can be said for that is that much of it is rambling and discursive. Parts of it are abusive and scandalous of a variety of persons not necessarily connected with this litigation and much of the content thereof is irrelevant. The respondent filed an outline of submissions on 4 December 2015 and, in essence, the matter was ready for the hearing which had been listed for 7 March 2016.
As the Court has already observed, that day was a public holiday and on 28 January 2016 the matter was re-listed to today. A notice of amended listing was sent to the parties. The Court is aware from its review of the file that the applicant queried the listing as to whether it was meant to be 2016 or 2017, and was advised by an email on the same day, that is, 28 January 2016, that the correct listing date was 13 February 2017.
The matter was called today. There was no appearance by the applicant in Court. The matter was called outside and there was still no appearance by the applicant.
There has been no application in a case filed to have the hearing conducted in another form and the Court refers generally to the provisions with respect to audio and video link hearings under ss.66-72 of the Federal Circuit Court of Australia Act 1999 (Cth). The Court is also aware that in other matters it has ordered that the applicant be directed to file such an application in a case in relation to final hearings. The Court is also aware that within the last month or so there has been correspondence directed to the applicant, not in relation to this matter but other matters in respect of which he has applications, indicating to him that the Court would allow him to appear for interlocutory purposes by phone but not for final hearings, and that any final hearing in respect of which he proposed to appear other than in person would require an application in a case supported by affidavit.
The Court has had no contact from the applicant in relation to this matter and his mode of appearance, or indicating that he did not intend to appear today. The Court has considered, as it has indicated to Counsel for the respondent, whether the matter should be dismissed on its merits. The Court takes the view that the matter has been approached by the respondent on the basis that there is a case to answer and the respondent, quite properly, has put on evidence and submissions which deal with the case which it perceives it has to meet. There can be no criticism whatsoever of the respondent’s conduct of the litigation.
The Court bears in mind, however, that it is a disability discrimination claim, and that the unexplained absence of an applicant in such a case may have many causes. The Court is also cautious because it is, as it has indicated to Counsel for the respondent, aware that on a previous occasion in which a matter was dismissed for non-appearance the applicant had, as it transpired subsequently, been hospitalised and he subsequently made an application to set aside the orders then made. That said, it is, nevertheless, the case that it is for an applicant to contact the Court and advise of such matters, preferably before a hearing, and, as the Court has indicated, there has been no such contact in these proceedings.
Balancing all of the above considerations, and bearing in mind relevant case management considerations, including the lengthy hearing delays in this Registry, the Court, in the exercise of its discretion, considers that the matter should not be dismissed outright but, rather, be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth), with costs.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 16 February 2017
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