Ellis v Scentre Shopping Centre Management (WA) Pty Ltd trading as Westfield Shoppingtown Carousel Pty Ltd
[2018] FCA 336
•15 March 2018
FEDERAL COURT OF AUSTRALIA
Ellis v Scentre Shopping Centre Management (WA) Pty Ltd trading as Westfield Shoppingtown Carousel Pty Ltd [2018] FCA 336
Appeal from: Application for leave to appeal: Ellis v Scentre Shopping Centre Management WA Pty Ltd Trading As Westfield Shoppingtown Carousel Pty Ltd [2017] FCCA 228 File number: WAD 121 of 2017 Judge: MCKERRACHER J Date of judgment: 15 March 2018 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal against an interlocutory judgment pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) – where primary judge dismissed an application for non-appearance – where applicant’s submissions not adequately supported by evidence – where judgment of primary judge not attended by sufficient doubt to warrant it being reconsidered on appeal Legislation: Federal Court of Australia Act 1976 (Cth) ss 24(1)(d), 24(1A)
Federal Circuit Court Rules 2001 (Cth) rr 13.03C(1)(c), 16.05(2)(a)
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Ferdinands v The State of South Australia [2017] FCA 32
House v The King (1936) 55 CLR 499
Date of hearing: 20 September 2017 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 40 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr C M Slater Solicitor for the Respondent: Watts Legal Consultants ORDERS
WAD 121 of 2017 BETWEEN: TROY ELLIS
Applicant
AND: SCENTRE SHOPPING CENTRE MANAGEMENT (WA) PTY LTD TRADING AS WESTFIELD SHOPPINGTOWN CAROUSEL PTY LTD
Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
15 MARCH 2018
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant to pay the costs of the respondent, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCKERRACHER:
INTRODUCTION
Several applications or appeals have been issued by Mr Ellis in the form of challenges to orders made by the Federal Circuit Court of Australia. Proceedings issued by Mr Ellis in that Court have been dismissed for a variety of reasons, generally on a summary basis due to his failure to comply with rules or directions, or his failure to appear at hearings.
Mr Ellis has challenged all of those judgments in this Court, and in response, the various respondents have sought to have his challenges dismissed.
For the purpose of these reasons it is assumed that it is established that Mr Ellis is disabled. For all hearings before me (all being interlocutory), Mr Ellis has appeared with leave of the Court by telephone. I have accepted for the purpose of such hearings that he is disabled by reason of suffering some mobility impairment.
It is apparent from examining the various proceedings that Mr Ellis has adopted a modus operandi of pursuing claims against various retail and other commercial outlets based on an alleged failure to supply adequate wheelchair facilities. The claims he has issued have been stated only briefly. Generally speaking, he has claimed at least $1 million in compensation against all concerned. The scarcity or absence of evidence or pleading in all of these claims is an underlying feature of them. Unfortunately, none of the claims has been properly tested by a trial because Mr Ellis has repeatedly, at least according to the Federal Circuit Court, failed to comply with court orders or rules, and has failed to appear on various applications.
It must be said, without presently descending to particulars, that whilst Mr Ellis has been very polite to me up to this point, he has launched scathing and vituperative attacks on his opponents and, particularly, the lawyers, even accusing them (usually) of criminal activity of an entirely unspecified nature. The invective he has unleashed in such attacks has been entirely unwarranted and raises serious questions as to whether the Court process is being appropriately used.
THIS PROCEEDING
This is an appeal from a decision of the Federal Circuit Court in Ellis v Scentre Shopping Centre Management WA Pty Ltd Trading As Westfield Shoppingtown Carousel Pty Ltd [2017] FCCA 228, where the primary judge dismissed Mr Ellis’ disability discrimination application for non-appearance pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The attention of Mr Ellis was drawn by the Court to r 16.05(2)(a) of the Federal Circuit Court Rules, which contemplates an application to set aside an order made in the absence of a party, but no steps have been taken by Mr Ellis to pursue relief in that regard. The conduct of the appeal was referred to me for case management. In due course, were the appeal to proceed, the Chief Justice would determine whether or not the appeal is to be determined by a single judge or by a Full Court.
In the meantime, as part of the appeal management, it has become necessary to deal with Mr Ellis’ application for leave to appeal. This arises because the respondent objects to competency on the basis that the appeal is from the interlocutory judgment of the Federal Circuit Court exercising its original jurisdiction within the meaning of s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (FCA) and leave is required pursuant to s 24(1A) FCA, which has not yet been given. The application has been referred to me for case management.
In response to that notice of objection to competency, Mr Ellis has filed (out of time) an application for leave to appeal, supported by an affidavit.
IN THE FEDERAL CIRCUIT COURT
By ex tempore reasons, the primary judge considered and dismissed Mr Ellis’ application, which alleged disability discrimination.
His Honour noted that:
·the orders sought in the originating application were an apology, that the issues be rectified, and $1,000,000 compensation for stress, humiliation and for money that Mr Ellis alleges should have been spent on a variety of matters including, for example, infrastructure and staff training (at [1]);
·the application has no particulars of either the disability or how the discrimination was said to arise because of the disability, but as the Court had 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 (citations omitted, at [1]);
·there was a first directions hearing in this matter on 17 November 2014, and orders were made for Mr Ellis 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 was narrative in form, and did not identify any disability from which Mr Ellis suffers (at [2]);
·an affidavit was also filed on 12 December 2014 by Mr Ellis and referred generally to mental and physical damage, and to the fact that Mr Ellis might be subject to falls and muscle strain if forced to park in a non-ACROD bay, or if he had to walk a long distance to the shopping centre, the subject of the litigation (at [2]);
·much of the content of the affidavit was irrelevant and vague (at [2]);
·during the course of the litigation, no medical evidence had been filed as to the nature of Mr Ellis’s disability or its effect upon him for discrimination purposes (at [2]);
·on 22 December 2014, the respondent filed a response opposing the orders sought (at [2]);
·at a further directions hearing on 9 February 2015, the matter was referred for mediation and Mr Ellis was referred to a Registrar of the Federal Circuit Court for the issuance of a pro bono certificate generally for assistance by a legal practitioner, in relation to the proceedings. Mr Ellis was not, however, subsequently represented by a legal practitioner in the proceedings (at [3]);
·on 21 February 2015, for reasons which were not apparent, Mr Ellis filed a further statement of claim which referred 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 literally just set out those references, and referred back to the previous statement of claim filed on 12 December 2014 for the detail (at [4]);
·a mediation on 28 April 2015 was terminated because the matter did not settle (at [5]);
·on 13 July 2015, there was a directions hearing at which Mr Ellis did not appear and the matter was adjourned to 14 July 2015 (at [6]);
·Mr Ellis 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 Holsgrove on behalf of the respondent, and by Mr Ellis, but again no medical evidence (at [6]);
·Mr Ellis’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 (at [6]);
·Mr Ellis filed an outline of submissions on 2 November 2015. The primary judge said the best that could be said for that was that much of it was ‘rambling and discursive’, with parts of it being abusive and scandalous of a variety of persons not necessarily connected with the litigation and much of the content being irrelevant (at [7]).
·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 (at [7]);
·on 28 January 2016 the matter was re-listed to 13 February 2017. A notice of amended listing was sent to the parties. Mr Ellis 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 (at [8]);
·the matter was called on 13 February 2017. There was no appearance by Mr Ellis in the Federal Circuit Court. The matter was called outside and there was still no appearance by Mr Ellis (at [9]);
·no application had been filed to have the hearing conducted in another form (per the provisions with respect to audio and video link hearings under ss 66-72 of the Federal Circuit Court of Australia Act 1999 (Cth)). In other matters the primary judge had ordered that Mr Ellis file such an application in a case in relation to final hearings. Within the previous month there had been correspondence directed to Mr Ellis, not in relation to this matter but other matters in respect of which he had 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 (at [10]);
·the Federal Circuit Court had no contact from Mr Ellis in relation to this matter and his mode of appearance, or indicating that he did not intend to appear on 13 February 2017. The primary judge considered, as indicated to counsel for the respondent, whether the matter should be dismissed on its merits. The matter had been approached by the respondent on the basis that there was a case to answer and the respondent had put on evidence and submissions which dealt with the case which it perceived it had to meet. There could be no criticism whatsoever of the respondent’s conduct of the litigation (at [11]);
·bearing in mind, however, that it was a disability discrimination claim, and that the unexplained absence of an applicant in such a case may have many causes, further, as it has indicated to counsel for the respondent, on a previous occasion in which a matter was dismissed for non-appearance Mr Ellis 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, his Honour said, for an applicant to contact the Court and advise of such matters, preferably before a hearing. There had been no such contact in these proceedings (at [12]); and
·balancing all of the above considerations, and bearing in mind relevant case management considerations, including the lengthy hearing delays in the Federal Circuit Court Registry, the Federal Circuit Court, in the exercise of its discretion, considered that the matter should not be dismissed outright but, rather, be dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules, with costs (at [13]).
THE APPLICATION FOR LEAVE TO APPEAL
The grounds of the application, as set out in Mr Ellis’ application for leave to appeal, filed 14 June 2017, are as follows:
1.The health report from my GP […] in latter [sic] 2016 was ignored and never presented to [the primary judge], after I sent it to the court.
I was told in 2017 that an AFFIDAVIT was required, but even if I received a letter stating this in 2016, it would not have been read, as my entire health was too compromised to have even been able to read it or comprehend it.
2.[The primary judge] did not consider that this was not any failure on my part, as I did write to the court and told them my health was I [sic] chaos.
3.The lawyers used this to ham [sic] my case DISABLITY [sic] DISCRIMINATION, these lawyers were acting deceitful and inhumane to use my disabled ill health to attack me with it and so they could simply win and have the case dismissed.
EVIDENCE
The affidavit in support of the application materially deposes that:
…
2.I was unwell and unfit for court for the latter part of 2016 and continuing into early 2017 and into March 2017, due to disability associated physical, mental and emotional exhaustion, as advised by my GP […], to carry out any legal duties in the court orders of [the primary judge], in regards to any and all paperwork, court appearances and lodgements in the Perth Federal Circuit Court.
3.The reasons for late lodgment of this AFFIDAVIT, APPEAL and APPLICATION FOR AN EXTENSION OF TIME, is due to failing disability health, extreme stress, pressure and time restraints, to have to research and find out the best way to submit the correct information, without any professional legal knowledge or the support of legal clerks and legal secretaries, as essentially as an unwell disabled person pushed to breaking point by resourceful and cunning lawyers and their corporate clients, who surely would know the pressure of trying to survive as most of the disabled community are trying to do daily.
4.The never ending years of these cases dragging on have taken an immense toll on my entire physical and mental health, culminating in emotional outbursts in the Perth Federal Circuit Court in 2016 and 2017, that I have lost the ability to function at the best and acceptable levels of the court or even consider time frames or severe punishments I could suffer for court outbursts. I feel [the primary judge] understands the outbursts are acting out in a survival instinct, extreme fear and stress and of having such poor quality of life, due to disability and trying to fight for the same rights and justice as the able bodied community, being my only saving grace, or I would have been punished and died in jail.
5.The time frames to submit the constant streams of the same information over and over, to unscrupulous lawyers and corporate clients, is so overwhelming for one man's health and disability crisis, that I am not keeping up with the demands of [the primary judge], in regards of time frames, forms and paperwork, that I mostly do not understand at all.
NOTICE OF APPEAL
Mr Ellis has filed a draft notice of appeal, which contains the grounds of the application set out above.
APPLICATION FOR LEAVE
The application for leave is opposed. The opposition is supported by an affidavit from a regional manager of the respondent, who is also the centre manager for Westfield Carousel.
The deponent (Ms Holsgrove) deposes the procedural chronology listed by the primary judge, including that on 5 August 2015, the respondent filed and served a defence, on 21 October 2015, the respondent filed and served an affidavit of Ms Holsgrove, on 31 October 2015, Mr Ellis filed an affidavit and submissions (and served them on 2 November 2015), and on 4 December 2015, the respondent filed and served submissions.
Ms Holsgrove also deposes as to the actions and experience of Mr Ellis in this and other matters, including:
(a)on 8 March 2016, in Mr Ellis’ Federal Circuit Court action against Adventure World Pty Ltd (another of the several claims by Mr Ellis), Mr Ellis did not appear in person at the hearing of the matter and the hearing was adjourned when he telephoned the Federal Circuit Court;
(b)on 20 March 2016, Mr Ellis sent an email to the Human Rights and Equal Opportunities Commission, and copied it to the respondent. On 2 May 2016, Mr Ellis sent an email to the Human Rights and Equal Opportunities Commission, copied to the respondent. On 18 May 2016, Mr Ellis wrote to the respondent’s solicitors;
(c)on 16 June 2016, in Mr Ellis’ Federal Circuit Court action against Wadjemup Trading Pty Ltd and others, Mr Ellis’ claim against Wadjemup Trading Pty Ltd was dismissed and other directions were made;
(d)on 30 November 2016, Mr Ellis’ Federal Court action WAD 345/2016 was dismissed after a hearing in which Mr Ellis did not attend;
(e)on 24 January 2017, in Mr Ellis’ Federal Circuit Court action against Wadjemup Trading Pty Ltd and others, Mr Ellis’ claim against the second respondent, Fremantle Port Authority was dismissed for failure to comply with orders made on 16 June 2016;
(f)on 24 January 2017, on Mr Ellis’ Federal Circuit Court action against Silver Vision Pty Ltd, the Court dismissed the action for failure to comply with orders made on 22 November 2016;
(g)on 22 November 2016, the Federal Circuit Court had made directions for Mr Ellis to file and serve a list of documents to be relied on at a hearing and to provide copies of the documents to the respondent;
(h)on 13 February 2017, in Mr Ellis’ Federal Circuit Court action against the respondent, the matter was called by the Court and, in the absence of Mr Ellis, the matter was dismissed for reasons given on the day by the primary judge and as outlined above;
(i)on 13 February 2017, the Federal Circuit Court sent an email to the parties with the sealed orders of the Federal Circuit Court made that day and at 5.44 pm, Mr Ellis wrote to the Federal Circuit Court and to the respondent;
(j)on 5 and 8 May 2017, this Court wrote to Mr Ellis. On 9 May 2017, Mr Ellis wrote to this Court and the Court responded;
(k)on 10 May 2017, in Mr Ellis’ Federal Circuit Court action against Left Bank Holdings, the application was dismissed. On 24 January 2017, Mr Ellis had been directed to file and serve a statement of claim and affidavit in support and pay costs of the respondent in that matter by 28 February 2017. On 3 March 2017, further directions were made. On 19 April 2017, time for compliance with the orders was extended and the matter stood over to 10 May 2017 to determine if the orders were complied with and whether the application ought be dismissed. Mr Ellis did not appear on 10 May 2017 and the application was dismissed;
(l)on 16 May 2017, in another Federal Circuit Court action against Junction Group Pty Ltd, the Federal Circuit Court made orders dismissing the action;
(m)on 12 June 2017, following Mr Ellis serving papers relevant to the Federal Circuit Court proceedings and in the period to 14 June 2017, Mr Ellis corresponded with this Court in relation to documents;
(n)on 22 June 2017, in the Federal Circuit Court action in Green Tower Pty Ltd, Mr Ellis’ application was dismissed. On 23 December 2017, the application had been listed for hearing on 12 and 13 May 2016 and on 12 May 2016, Mr Ellis did not appear at the hearing and the application was dismissed. Mr Ellis applied to relist the matter and that application was heard on 22 June 2017 and the application was dismissed; and
(o)on 16 June 2017, the respondent’s solicitors undertook a search of the Commonwealth Courts Portal for actions commenced by Mr Ellis and prepared a table of actions by Mr Ellis commenced in the Federal Circuit Court and listed the actions, the start date and the status of the actions.
No objection was taken to the recital of the steps taken and not taken in these and other proceedings. That material was not contested. Its relevance went to both Mr Ellis’ capacity to complete paper work in prosecution of the various proceedings he has instigated and to his knowledge of the need to appear at hearings unless the Court otherwise orders.
Pursuant to the orders made by the primary judge, Mr Ellis was ordered to pay the respondent’s costs of $16,825.50. Those costs have not been paid.
MR ELLIS’ SUBMISSIONS
As might be expected, Mr Ellis has had some difficulty in grappling with the purpose and effect of an application for leave to appeal. His application is supported in substance by the following outline of submissions.
As noted, Mr Ellis has launched vitriolic attacks against the respondent’s solicitors. I do not intend to refer to them by name as the attacks are entirely unfounded and irrelevant.
…
1.
I disagree with all points of [the practitioners], as they are using this court and legal system to harm human rights in Australia and then they wonder why I am here and why AUSTRALIA is in the TOP 10 LIST OF WORST HUMAN RIGHTS ABUSIVE IN GENERAL COUNTRIES ON EARTH.
2.
There is not one point that any of these lawyers state that indicates the dismissal was factually and legally deserved and entirely my fault for allegedly not turning up, especially when I was sitting by the phone awaiting an AUDIO LINK, as [the practitioners] knew full well that AUDIO LINK was always the case at all other times, when at the same time as knowing this, he was behind the scenes deceiving this court and he should be not only disbarred from the legal profession, he should be jailed, as he intentionally withheld vital information while he was negotiating a pittance, joke, insult to any persons intelligence out of court settlement with me, which I will explain further in latter points listed below.
3.
[The respondent], [the practitioners] are using their corporate wealth and legal deceptions to corruptly undermine, diminish and overwhelm the court and me into submission and a health and emotional collapse, where I can no longer possibly remember dates, times, actions or even have health, time or energy left to try and write anything that will be taken seriously, with all the stupid points they have numbered, which is so much information and so much legal swill that it is doing my mind in, as it has been done intentionally to confuse, stress and cause so much legal incapacity or knowledge, that I will fail, with their sheer venomous legal drivel, with not one of their points or arguments actually based on any actual human life, as it intentionally serves to destroy disabled humanities and lead to the further struggle and destruction of all disabled persons, in particular myself.
4.
The respondents documents of alleged facts is a HUMAN RIGHTS ABUSE FRAUD and it is an attempt from 1 corporate and lawyers from 2 law firms that are manipulative, psychopaths who are acting so under hand that it is making a mockery of this court and myself and putting JUSTICE INTO DISREPUTE and PERVERTING THE COURSE OF JUSTICE and actually to be frank with this court, it is still a style of PERJURY and CONDUCT UNBECOMING OF LEGAL PRACTITIONERS, so they deserve no favour from the court or myself for that matter and should be made to pay me the $1 MILLION in compensation that I have been asking for now.
5.
Disbarment and terms of imprisonment toward these lawyer's and not threats toward me should be discussed, as with all of my cases, these nepotistic and connected far too much to corporates, politicians and the media Perth Club, have shown themselves in this court and outside of this court to be a bunch of unprofessional and a maniac gang, who are more than likely boozing it at a Perth lawyers bar after hours and discussing ways to destroy me, as that has become very evident in their own words and writings and the tittle tattle, childish, criminally insane, corruption conspiracies used this court to do so.
6.
They are so hate filled towards me, so disrespectful and defamatory that they have set out to try and diminish me, as either mentally ill, arrogant, aggressive, or I have no evidence or any facts rights, which shows their contempt for humanity, as just more of the very same DISABLITY [sic] DISCRIMINATION DISABLITY [sic] HATRED & DISABILITY VICTIMISATION that I have been through to get to this court and what I have suffered in this court, all the venom of wealthy corporates and lawyers, who would rather spend a fortune trying to fight me to the death and kill me and not do the right thing and then continue to spend much less in the full access and inclusion of the DISABLED COMMUNITY.
7.
The fact that these lawyers are defending an EX-MOSSAD MANIAC called […] and his sleazy, trouble making and FALSE HUMAN RIGHTS, INTERNATIONAL BOND CRIMIMINAL [sic], LOWY INSTITUTE, who was recently given $15 MILLION of TAX PAYERS MONEY from LABOR & LIBERAL and that money loss further diminishes DISABLED PERSONS HEALTH CARE and this shows that there is a disease of HUMAN RIGHTS ABUSE, COVER UP & CORRUPTION CONSPIRACY involved in this, as how the hell can these lawyers attack me, when their own client gets tax payers money while being a shockingly and obscenely wealthy billionaire with hundreds of billions in international assets. Is this a sick joke?
8.
The deceit of [the practitioner] negotiating a settlement with me, while I had decided to drop my defences and become more respectful and understanding of his position, however he was conning me and grabbed hold of a dismissal because of an alleged missed court date, after the many court dates that [the respondent], [the practitioners] has put me through, so that shows a sickness and disease of injustice toward the most vulnerable Australians, the disabled, from the least vulnerable.
9.
[The respondent], [the practitioners] are so insane that they have put me on trial, as if I am a criminal, when in fact I am actually a half dead disabled person, who should have these lawyer criminals on trial for MURDERING DISABLED PERSONS, as this entire case is nothing but an ACT OF VIOLENCE toward the people in AUSTRALIA, who are being treated the worst and given the least of EVERYTHING!
10.
These DEFENDANTS are trying to make me jump through legal and court hoops that I could not possibly leap through or comprehend where to start.
11.
These DEFENDANTS are also trying to make out I am not DISABLED and they know full well that I am.
12.
Further to that, that my GP […] must be committing fraud to declare me a DISABLED PERSON on a DISABILITY PENSION, PBS RECIPIENT, DISABILITY FEE WAIVER at FEDERAL COURT, have a WA GOVERNMENT ACROD PASS, WA GOVERNMENT ASSISTANCE DOG PERMIT that is held up in HIATUS & RED TAPE and I get all of the PITTANCE OF WA and FEDERAL GOVERNMENT GRANTS, SCHEMES & DISCOUNTS, I was a ROCKY BAY CLIENT and an AMBASSADOR for the MDWA, have hardly worked in almost 20 years and live in abject poverty and have hardly any health, but of course I must be well and able bodied according to the lawyers then!
13.
So they also believe that a man, who is a selfless 1997 WA YOUNG ACHIEVER OF THE YEAR FINALIST, LIONS CLUB MEMBER, SES MEMBER, AMNESTY INTERNATIONAL MEMBER, 1997 YOUNG AUSTRALIAN OF THE YEAR OUTSTANDING ACHIEVEMENT AWARD RECIPIENT, 1997 WHO WEEKLY MOST BEAUTIFUL PERSON, including all of my ST JOHN AMBULANCE & RPH EMERGENCY ADMITTANCE for constant falls and health problems relating to BECKERS MUSCULAR DYSTROPHY and all of my thousands of lobbying and activism hours I put in for the AUSTRALIANCOMMUNITY [sic] and the countless scores of references from HIGH LEVEL AUSTRALIAN VIP'S including business people and politicians and then go through all this stress and strain and not get even a pittance in court, then risk this idea of legal costs that I could not meet if I lived 10,000 years, but hey, [the respondent], [the practitioners] say I must be a liar!
14.
WELL I CONSIDER THAT THEY CANNOT PROVE THEY DID NOT CHEAT IN LAW SCHOOL TO BECOME A LIAR, SORRY THAT IS MY IRISH FOR LAWYER, WHICH SEEMS VERY MUCH THE CASE, WITH THEIR INSANE AND INHUMANE VALUE SYSTEM.
15.
This entire case is simply based on lawyer's opinions and plucked out of the sky legal drivel, which is not what a human being actually is and it then falls into a criminal category of not being true law or even lawful for that matter and should not be allowed to be entertained in this court[.]
16.
There is also no way in the world I could possibly have the time, health, or the energy, to remember all of the frivolous points of view or even fathom how this is useful at all, seeming as I have already complained to HREOC and there are points already raised in the complaint to HREOC.
17.
I have provided enough evidence and a response and I refuse to be driven insane just to provide another one again, over a simple issue of profits, so that the disabled cannot use their services as safely or as easily as an able bodied person.
18.
There is no reason for this case to have ever been dismissed in the first instance, as I had no idea I was not getting a phone call in regards to this case, as how could I ever possibly know what stage this case was at or when the court does not arrange AUDIO LINKS and besides plenty of lawyer's in many of these court cases I have before this court have done plenty of legal work wrong themselves and they are still allowed to go on without dismissal and that is so unethical and such an injustice that there should be an enquiry into this issue.
19.
I am not a lawyer and do not either understand or have any ability to be able to obey the same court legal work or court rulings, as it would be so difficult for me to even try to get it right to a lawyers so called standard, as I am only a living, breathing human being and this would prejudice me and lead to a perversion of the course of justice and create an unfair bias, as I cannot do the things you state, so I am complying to the best of my ability, so the lawyers client BED BATH N TABLE is the issue not me and these lawyers have caused this client to lose money, as they want the job, to make money, so who is too blame here, the lawyers, not me.
20.
I will not and I am not obliged to answer any letters by a damned lawyer if I find it harassing and stressful on my wellbeing, so I do not see where I should listen to them or comply with anything they state to me, as they are not a JUDGE and they are not my mother, conscience or GOD for that matter.
21.
I am not prejudging anybody however [the respondent] and their lawyers are doing this to themselves and to me actually.
22.
There are no legal grounds for a strike out or a dismissal of this appeal as there is nothing scandalous and irrelevant about the truth of the disabled being left out when it comes to [the respondent] only being interested in profits and the able bodied.
23.
There is no such strike out or dismissal relevance here, as nothing I have stated before or now contains any objectionable, inadmissible, scandalous, irrelevant, unnecessary or argumentative material, as the entire life and times of the suffering of the disabled people in Australia, is because of those types of ignorant and arrogant ideas about DISABILITY SURVIVAL & THE TRUTH.
24.
The fact that this corporation and lawyers think all of my statements are argumentative, objectionable, scandalous, inadmissible, unnecessary, irrelevant, vexatious, contemptable dishonest and not acceptable statements to make in court, shows the contempt towards all disabled persons in Australia, as what they have shown is irrelevant, contemptuous and dishonest.
25.
The treatment of me and most disabled persons is objectionable, scandalous and unnecessary and all that is being stated by the lawyer is inadmissible, irrelevant, and argumentative.
26.
The lawyer's always seem to get favour in the FEDERAL COURT; however it is time for this to be in my favour for a change and not the lawyers or the corporates.
27.
[The respondent] have to also face up to the facts that this entire court case was actually of their choosing and was only brought against them on a principle for their foolish refusal to pay a pittance in an out of court settlement while still under HREOC talks, for the stress and inconvenience that this has caused me, exactly the same as many other corporates have decided to do for the same such issue when in HREOC talks.
CONSIDERATION
As noted in the primary judge’s judgment and above, Mr Ellis’ claim involved a claim for damages for alleged disability discrimination. The unchallenged history of the proceeding has been set out by the primary judge and in the affidavit of Ms Holsgrove referred to above.
In particular, the record shows that on 28 January 2016, Mr Ellis wrote to the Federal Circuit Court questioning the relisted hearing date and the Federal Circuit Court responded on the same day confirming the date of 13 February 2017. On that date, the primary judge called the matter for hearing and when Mr Ellis failed to appear, the primary judge dismissed the proceeding and gave reasons for that decision referred to above.
The apparent purpose of Ms Holsgrove in referring to the other proceedings is to demonstrate that Mr Ellis, given the several matters and numerous activities with which he had been involved in the Federal Circuit Court, was aware or should have been aware that he was required to make an application in order to appear by telephone. He made no application as revealed in the primary judge’s judgment (at [10]). He knew or should have known of the consequences of failing to appear at the hearing.
There is nothing in the submissions made by Mr Ellis to support his contention that he was not required to appear in person. While unfamiliarity with a court proceeding would not strictly be an excuse for non-compliance with the Federal Circuit Court Rules in any event, I accept the submission for the respondent that the supposed unfamiliarity is unconvincing, given the considerable number of proceedings in which Mr Ellis had been involved.
It is plain under the Federal Circuit Court Rules that if a party is absent from a hearing, the Court may dismiss an application pursuant to r 13.03C(1)(c).
In any event, the primary judge went further to note that Mr Ellis’ case was not made out in any way on the papers and not supported by necessary evidence.
Leave to appeal from any interlocutory judgment of the Federal Circuit Court is required under the s 24(1A) FCA. The judgment is interlocutory in its nature because it did not address the substantive merits of Mr Ellis’ case, as indicated from [11]-[13] of the primary judge’s judgment and was based on discretionary considerations of practice and procedure: Ferdinands v The State of South Australia [2017] FCA 32 per White J (at [12]) where his Honour said:
Further, appellate courts exercise restraint before interfering with judgments concerning matters of practice and procedure. Thus, in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177, Gibbs CJ, Aickin, Wilson and Brennan JJ said:
Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. … For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.) [(1946) 46 SR (NSW) 318 at 323]:
“… I am of the opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”
Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) is a legislative endorsement of the restraint to which their Honours referred in Adam P Brown.
It is well established (see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399) that in order to obtain leave to appeal, an applicant must establish:
(a)the judgment of the primary judge was attended by sufficient doubt to warrant it being reconsidered on appeal; and
(b)substantial injustice would result if leave were refused, supposing the decision to be wrong.
As noted in Ferdinands (at [13]), the tests are not to be applied in any rigid way, having regard to the variety of interlocutory decisions which may be the subject of appeal. But it is necessary on appeal for an appellant to show error. Merely restating arguments made at first instance do not have this effect.
Since r 13.03C(1)(c) of the Federal Circuit Court Rules conferred a discretion on the Federal Circuit Court, Mr Ellis must also establish that some error of the kind described in House v The King (1936) 55 CLR 499 was made. Relevantly, House v The King error can be described as follows (at 505) (footnotes omitted):
… It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
…
Most of the submissions made by Mr Ellis are completely unsupported by any evidence. While his grounds for leave to appeal refer to a health report from his GP and the fact that it was ignored, there is no evidence at all that any such report of any medical evidence was put before the Federal Circuit Court as to the nature of Mr Ellis’ disability or its effect upon him for discrimination purposes. In this Court, there is some indication of disability in a medical report forwarded to my chambers and reading:
…
1st December 2017
…
Re: Troy Ellis
…
TROY ELLIS has severe mobility issues and should ideally be able to use Audiolink for appearances that may not require attendance at Victoria Avenue Perth.
Walking parking and getting to court are problematic for him with his severe condition even a sea breeze might destabilize his mobility.
Yours Sincerely
…
I have approved Mr Ellis appearing by phone on this and other interlocutory (only) hearings.
Mr Ellis’ submissions of 1 August 2017, in support of the application for leave is, in its content, general and discursive in nature. It refers to other claims in which he is involved and refers to ‘without prejudice’ settlement communications with the respondent. The respondent does not waive the privilege attaching to those communications, but in any event, even if it did not, there is no reason whatsoever why those ‘without prejudice’ communications should have been drawn to the attention of the Federal Circuit Court. The whole purpose of making a confidential out of settlement court offer is to attempt to avoid the delay, costs, risks and other general stresses of legal proceedings. Even if an offer was made to Mr Ellis, it would have been quite inappropriate and would have given him cause for complaint, had that ‘without prejudice’ offer and its rejection been drawn to the attention of the primary judge. There is nothing whatsoever inappropriate, as Mr Ellis contends, about failing to inform the Federal Circuit Court of a ‘without prejudice’ offer being made.
Again, there is no evidence at all to support Mr Ellis’ assertion that he was unaware that he could not appear by telephone. It is contradicted by the evidence and the content of the Federal Circuit Court reasons and there is no reason to believe the reasons are wrong on this point.
I should reiterate that Mr Ellis’ broad assertions that he did not understand the processes of the Federal Circuit Court, while understandable at the most technical level, are not supported in the more basic requirements in light of his considerable experience and in light of the evidence of Ms Holsgrove in her affidavit. I accept, as the respondent submits, that the following do not support ignorance of the processes:
(a)Mr Ellis has commenced many actions in the Federal Circuit Court since 2014;
(b)the actions were conducted over several years;
(c)he has had matters dismissed for failing to observe court orders or failing to attend court hearings;
(d)Mr Ellis has had notice of the need to make applications where he apprehends he is unable to attend the court in person; and
(e)Mr Ellis has had notice of the consequence of failing to make such an application.
The various attacks on the respondent and its representatives are quite unfounded. I have no reason to doubt the submission for the respondent that it has taken the proceedings seriously and been diligent in addressing the requirements of it. It has expended significant sums and extensive time in conducting its defence in accordance with court procedures. It was fully prepared for a hearing on 13 February 2017, when Mr Ellis did not appear.
There is no apparent error in the judgment of the primary judge. There was no error of the kind described in House v The King.
No ground has been made out to support the application for leave to appeal.
CONCLUSION
The application for leave to appeal is dismissed. Mr Ellis is to pay the respondent’s costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 15 March 2018
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