Ellis v Silver Vision Pty Ltd (No 2)
[2017] FCCA 151
•10 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v SILVER VISION PTY LTD (No.2) | [2017] FCCA 151 |
| Catchwords: PRACTICE AND PROCEDURE – Dismissal of action for non-compliance with Court orders – test for non-compliance – requirement for evidence on oath where relief from non-compliance sought on medical grounds. COURTS AND JUDGES – Role of judicial officer in determining case – whether judicial officer ought to undertake independent inspections of premises. COSTS – Indemnity costs – whether applicant’s conduct of proceedings and before the Court warrants an award of indemnity costs – where conduct includes abuse of judge and other party’s lawyer. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), s.46PO |
| AWX16 v Minister for Immigration & Anor [2016] FCCA 928 Lance v QAV Pty Ltd [2013] WASC 13 |
| Applicant: | TROY ELLIS |
| Respondent: | SILVER VISION PTY LTD TRADING AS ARIRANG KOREAN BBQ RESTAURANT & CAFÉ |
| File Number: | PEG 5 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 24 January 2017 |
| Date of Last Submission: | 24 January 2017 |
| Delivered at: | Perth |
| Delivered on: | 10 February 2017 |
REPRESENTATION
| For the Applicant: | In person (by telephone, by leave) |
| Counsel for the Respondent: | Mr B Winburn-Clarke |
| Solicitors for the Respondent: | SRB Legal |
ORDERS (made on 24 January 2017 as amended on 10 February 2017)
By reason of the applicant’s non-compliance with orders 1 and 2 of the Court’s orders of 22 November 2016 the application as against the respondent be dismissed pursuant to r.13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the respondent’s costs on an indemnity basis, those costs to be assessed by a Registrar of this Court.
Reasons for Judgment in relation to orders 1 and 2 above be published electronically from Chambers at a later date.
AND THE COURT FURTHER ORDERS pursuant to r.16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth) that the word “first” appearing before the word “respondent” be deleted in order 1 of the orders made on 24 January 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 5 of 2015
| TROY ELLIS |
Applicant
And
| SILVER VISION PTY LTD TRADING AS ARIRANG KOREAN BBQ RESTAURANT & CAFÉ |
Respondent
REASONS FOR JUDGMENT
Introduction – orders made
On 24 January 2017 the Court made the following orders:
1.By reason of the applicant’s non-compliance with orders 1 and 2 of the Court’s orders of 22 November 2016 the application as against the first respondent be dismissed pursuant to r.13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
2.The applicant pay the respondent’s costs on an indemnity basis, those costs to be assessed by a Registrar of this Court.
3.Reasons for Judgment in relation to orders 1 and 2 above be published electronically from Chambers at a later date.
The Court has amended the above orders pursuant to r.16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) by deleting the word “first” before the word “respondent” in order 1.
The Reasons for Judgment referred to in order 3 above follow below.
The originating application
The originating application (“Application”) in these proceedings is made under s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) and was filed on 9 January 2015 by the applicant, Troy Ellis (“Mr Ellis”) alleging disability discrimination under the Disability Discrimination Act 1992 (Cth) (“DD Act”) against him by the respondent, Silver Vision Pty Ltd trading as Arirang Korean BBQ Restaurant & Café (“Arirang Restaurant”). In Arirang Restaurant’s Response filed on 27 February 2015 it seeks the dismissal of the Application.
Previous judgment and observations on prospects of success
In Ellis v Silver Vision Pty Ltd trading as Arirang Korean BBQ Restaurant & Café [2016] FCCA 907 (“Arirang Restaurant (No 1)”) the Court dealt with and dismissed an application for security for costs by Arirang Restaurant, and in the course of so doing made observations as to the prospects of success of Mr Ellis’ application as it then stood.
In Arirang Restaurant (No 1) the Court observed that the Application was not yet properly particularised and Mr Ellis had not yet filed any evidence: Arirang Restaurant (No 1) at [15] per Judge Lucev, but went on to observe at [16], [18] and [20] per Judge Lucev that:
16. There can be no doubt on the evidence filed by Arirang Restaurant that there was no ramp, or other infrastructure, available to facilitate access to the premises for a person who could not use the steps. Indeed, Arirang Restaurant’s case is that its employed staff would physically assist disabled persons into the restaurant, after the disabled persons had requested assistance. Whether or not that physical assistance precludes a finding of disability discrimination in relation to access to the premises, or constitutes a reasonable adjustment for the purposes of s.5(2) of the DD Act, is a matter which can only be determined at a hearing upon the evidence led at hearing. As the Court discussed with Counsel for Arirang Restaurant at hearing the fact that a disabled person, unlike a non-disabled person, has to stand outside the restaurant, attract the attention and assistance of employees inside the restaurant, and then be physically assisted into the Arirang Restaurant, with the possible indignity that that might entail for some disabled persons, must make the Application on its face at least arguable as a case of direct discrimination under s.5(1) of the DD Act. The Application is, therefore, not without prospects of success.
18. Mr Yu’s comments concerning whether or not Mr Ellis is disabled, or otherwise as to the extent of his disability and his capacity to access the Arirang Restaurant via the steps have been disregarded by the Court. Mr Yu gave no evidence of having any qualifications which would enable him to assess whether Mr Ellis has a disability, or whether Mr Ellis could, given the extent of any disability, access the Arirang Restaurant premises via the steps. Further, the Court regards it as unhelpful that a person involved in the litigation without expert qualifications to assess disability, or the capacity of a person with a disability to access premises, proffers an inexpert opinion, especially where that inexpert opinion is not said to be based upon any personal observation of Mr Ellis endeavouring to walk up or down the Arirang Restaurant steps, or any steps. The fact that there are apparently only two steps, and that they are only 33cm high, is also a matter upon which the Court places no weight: the number and height of the steps is of no assistance without a knowledge of the nature and extent of Mr Ellis’ disability, and his capacity to walk up or down steps of any height, which evidence can probably only come from expert medical practitioners and allied health professionals.
20. For reasons set out above, the Court is of the view that the Application is not without prospects of success. In that regard, the Application is still in its very early stages in relation to the Court’s processes, and in those circumstances to impose a security for costs order at this stage would in the Court’s view be oppressive because it may stultify a claim which, on the materials presently before the Court, is legitimate and is not without prospects of success.
Arirang Restaurant (No 1) was delivered on 22 April 2016, and the matter was adjourned to a further directions hearing.
Events following Arirang Restaurant (No 1)
Directions hearing – 16 June 2016
The matter next came before the Court on 16 June 2016. At the directions hearing on 16 June 2016 the following exchange occurred between the Court and Counsel for Arirang Restaurant:
HIS HONOUR: Thank you, Mr Yoon. Now, is this a matter which should go to hearing, Mr Yoon, or is there some other preliminary step that you seek to have - - -
MR YOON: My understanding is at this stage, your Honour, the programming order should be about the full disclosure about his claims of – we need a full statement of his claim.
HIS HONOUR: All right. Well, that can simply be achieved, can it not, by ordering the filing of affidavits by each side and the filing of submissions and listing of the hearing. Mr Yoon?
MR YOON: Yes, fine.
Transcript, 16 June 2016, page 13 (the Transcript is a part of a larger transcript of five matters involving Mr Ellis that were on for directions on that day).
The Court therefore made the following orders on 16 June 2016:
1. The applicant’s affidavits in support of the claim be filed and served by 16 August 2016.
2. The respondent’s affidavits in opposition to the claim be filed and served by 16 October 2016.
3. The applicant’s outline of submissions be filed and served by 16 December 2016.
4. The respondent’s outline of submissions be filed and served by 16 January 2017.
5. The matter be listed for hearing at 10.15am on 16 March 2017.
6. Costs be reserved.
Affidavit filed by Mr Ellis – 5 August 2016
On 5 August 2016 Mr Ellis filed an affidavit (“Mr Ellis’ August 2016 Affidavit”).
Mr Ellis’ August 2016 Affidavit was in the following terms:
1. I make this affidavit to affirm that I was discriminated against by Arirang and will be filing outline of submissions by 16 October 2016.
2.
I have suffered physical and mental damage to a higher degree than able bodied people. as I rely on businesses to make sure that they have disability access and a duty of care.
3.
My health has been severely damaged by immense emotional stress.
4.
SILVER VISION does have a billion dollar multinational insurance policy and what I am asking for in disability and injury compensation would come from the public liability insurer.
5.
I want $1 million in compensation. as SILVER VISION has caused me immense emotional injury and distress, caused by their negligence and a lack of duty of care or adequate access. I was further treated with contempt, as my stresses and anxiety did not matter to them or CHANG GALIC LAWYERS.
6.
SILVER VISION is paying a fortune in legal fees, but refuses to even negotiate on a settlement with me on the compensation factor.
7.
I have lost myself totally, due to SILVER VISIONS not so kind, kind.
8.
I have had to fight constantly for my dignity, respect, safety, against disability discrimination, disability inaccessibility, the fight for my human rights and acknowledgment, as well as adequate actions that should have been taken, without the need for court action.
9.
This immense stress and running around to court and printing off material has damaged me mentally and physically, as I suffer from depression and a physical disability, that can make me subject to shocking falls and muscle strain, if I am pushed to do more than I usually do in my day to day activities.
10.
Going to court and facing sleazy lawyers, who will never defend me or the disabled, but will fight me and the disabled and further damage our worth, dignity and respect, has made me irritable, sad. sleepless, anxiety ridden and aggressive toward those I love, due to enduring this enhanced and unnecessary suffering, due to SILVER VISIONS lack of care or compassion for a disabled person, that their very own duty of care failed to protect and ensure that I was not discriminated against or injured physically or mentally by their poor business practices.
11.
My life and that of the disabled is already diminished enough by the government, business and the general community, with injustice, poverty, unemployment, lack of adequate access and disability discrimination, without SILVER VISION further harming my already damaged body and emotions, due to a disability I was not born with or created by my own self harm, misadventure or neglect.
12.
SLVER VISION lawyer BRUCE YOONG of CHANG GALIC LAWYERS, has defamed, victimized and used a THIRD PARTY to do so, with HEARSAY. Double standards, using a violently abusive female called VIOLA STEED, of SOLUTIONS INTRODUCTIONS, while being his own racist, to a white, Christian, disabled person, male and an Australian larrikin from non-convict stock.
13.
BRUCE YOONG then had the nerve to stand up in court to use my larrikin Australian personal views on his legal and citizenship credentials to try and destroy my credibility. l see him as nothing more than the true racist, as he is a true foreigner in my country, using the COMMONWEALTH COURTS to preach his race rights, while taking away my race rights and committing disability hatred along the way.
14.
With the paragraph above, this is nothing more than SILVER VISION and CHANG GALIC acting with corruption, collusion and conspiracy, to commit acts of defamation, victimisation, perjury, fraud and BRUCE YOONG practising CONDUCT UNBECOMING of a LEGAL PRACTITIONER.
15.
No disability access, defamation, victimisation, hearsay and excusing DISABILITY DISCRIMINATION and DISABILITY HATRED, is an affront to humanity, disabled persons, Australia and the courts.
16.
If BRUCE YOONG or SILVER VISION try the race card to try and destroy my justice and liberty, then this proves racial and disability hatred, as I would not do this to them in disgusting evil and corrupt CHINA, where they come from. I would have no rights in CHINA either way, as a true fact of the matter.
17.
There is no race card here, just DISABILITY HATRED. BRUCE YOONG and the ARIRANG directors are not even a race either way we look at, as they are from foreign and incompatible regions of Earth and are acting outside of humanity, which is a race.
18.
The fact that JUCGE LUCEV already berated BRUCE YOONG In open court and dismissed the fast action of CHANG GALIC to have me listed as a VEXATIOUS LITIGANT and pay 10,s of thousands of dollars up front, it is offensive to me and our sacred courts and proves outright that I have a case and plenty of evidence and facts to win my claim.
(Transcribed from original without amendment).
Arirang Restaurant’s affidavits not filed
Arirang Restaurant’s affidavits in opposition to the claim were not filed by 16 October 2016.
Arirang Restaurant’s change of lawyer
On 26 October 2016 Arirang Restaurant filed a Notice of Change of Lawyer indicating that Mr Winburn-Clarke of SRB Legal had been appointed to represent Arirang Restaurant in place of Mr Yoon of Chan Galic Lawyers.
Directions hearing – 22 November 2016
On 22 November 2016 the matter came before the Court again. There was no appearance by Mr Ellis and the Court’s endeavours to contact Mr Ellis by telephone were unsuccessful. Mr Winburn-Clarke appeared for Arirang Restaurant. Mr Winburn-Clarke made the argument that Mr Ellis’ August 2016 Affidavit did not deal with the “… threshold issue – is Mr Ellis disabled, to what extent is he disabled and is he disabled such that he would not be able to access this premises via the steps … [there is] no medical evidence in relation to that threshold issue, which makes it very difficult for the respondent, in terms of how to address the case, and, in fact, whether any affidavit evidence should be filed on behalf of the respondent …”: Transcript, 22 November 2016 page 2. Mr Winburn-Clarke sought that there be some documentary evidence, at least, of Mr Ellis’ disability filed before the matter could be properly heard (bearing in mind it was listed for final hearing on 16 March 2017): Transcript, 22 November 2016 page 3.
The Court made the following orders on 22 November 2016:
1. The applicant file and serve a list of documents to be relied on at hearing on by 6 December 2016.
2. The applicant provide copies of the documents in the list in order 1 to the respondents by 6 December 2016.
3. The matter be listed for a further directions hearing at 9.30am on 8 December 2016, with leave to the respondent to apply for summary dismissal of the application in the event of non-compliance with orders 1 and 2.
4. No order as to costs.
The directions hearing on 8 December 2016 was administratively adjourned.
On 13 January 2017 Mr Winburn-Clarke filed an affidavit referring to the Court’s orders of 22 November 2016 and indicating that Mr Ellis had not:
a)served a list of documents; and
b)provided copies of documents to Arirang Restaurant.
Directions hearing – 24 January 2017
Introduction
This matter was one of a number of matters listed at 11.30am on 24 January 2017 for directions. Earlier that morning, at 10.00am, the Court had delivered a number of judgments in relation to matters in which Mr Ellis was involved. To give what occurred at the directions hearing in this matter some context it is necessary to briefly set out a summary of those judgments.
Context – earlier judgments delivered on 24 January 2017
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)that the Court 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 upon which he relies for the purposes of the proceedings, and the extent of that disability insofar as it is relevant to those proceedings, and the existence and identify 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: see Wadjemup Trading at [17] and [19] per Judge Lucev.
In Ellis v Rottnest Lodge (1989) Pty Ltd Trading As Rottnest Lodge [2017] FCCA 84 (“Rottnest Lodge”) 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 whereby the Court served relevant documents on Mr Ellis: Rottnest Lodge 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 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 at [36] per Judge Lucev.
In each of Kanyana Wildlife, Left Bank Holdings and Wadjemup Trading costs were ordered against Mr Ellis for $4,010.50, $3,470.00 and $4,958.00 respectively.
The directions hearing – transcript
As indicated above, this matter was one of six matters involving Mr Ellis and applications alleging disability discrimination listed for directions hearings against various respondents at 11.30am on 24 January 2017. This matter was called at 11.54am, and what occurred is best reflected by setting out the relatively short transcript of the directions hearing, which was as follows:
HIS HONOUR: Yes. In this matter there were orders on the last occasion for you, Mr Ellis, to undertake to file certain documents as I recall it.
MR ELLIS: Which one is this, again? Which case, sorry?
HIS HONOUR: This is Silver Vision.
MR ELLIS: Yes. And they know full well I’m sick – was sick, too.
HIS HONOUR: Mr Winburn-Clarke, you - - -
MR ELLIS: And why would I – why would I submit anything more? I’ve already said it.
HIS HONOUR: Mr Winburn-Clarke, you appear for Silver Vision.
MR ELLIS: This dickhead is appearing for another smackface. Shit. Can’t win. Bloody traitorous asshole working for smackfaces. They’re not even Australians you piece of shit.
HIS HONOUR: Mr Ellis, you’ve not complied with the orders of the court made on the last occasion to file certain documents. Do you propose that anything should be done in relation to the matter.
MR ELLIS: How can I do it when I’ve already told you I have a medicate certificate, which – your court staff are hiding on purpose, too, so don’t sit there and talk to me about being bad when you’ve got corrupt people working there or purpose.
HIS HONOUR: Mr Ellis - - -
MR ELLIS: Now listen, I’m not - - -
HIS HONOUR: Mr Ellis, no affidavit material has been filed.
MR ELLIS: Why would it be filed. I said they know that I wasn’t available - - -
HIS HONOUR: Well - - -
MR ELLIS: - - - because I’ve been unwell and off the system for months because of my unwellness.
HIS HONOUR: All right.
MR ELLIS: Part of it caused by their stress, their stupidity. Judge Lucev, why don’t you go down there for lunch and look at the fact they don’t have a ramp and make a decision just based on your own eyes instead of putting me through more crap. I mean, this is insane crap. This isn’t justice, it’s sick.
HIS HONOUR: Mr Winburn - - -
MR ELLIS: All right. I’m not doing anything more about this matter. You make your sleazy judgments and they can win. I don’t give a shit what you do because you’re going to let them win anyway (laughs).
HIS HONOUR: All right.
MR ELLIS: Was Clarke one of your gay lovers on the weekend? Is he? Probably. Probably.
HIS HONOUR: Mr Winburn-Clarke, do you seek an order to – dismissing the matter for non-compliance.
MR WINBURN-CLARKE: Yes, I do, your Honour.
HIS HONOUR: All right. There will be an order in those terms. Do you seek costs?
MR WINBURN-CLARKE: Yes, I do.
MR ELLIS: Good luck with that, asshole (laughs). You piece of shit (laughs).
MR WINBURN-CLARKE: You may also like to not, your Honour, that this matter is listed for a trial on 16 March - - -
HIS HONOUR: Yes.
MR WINBURN-CLARKE: - - - this year, so that will become available – that hearing date.
HIS HONOUR: All right. Well, there will be an order dismissing the matter for non-compliance. There will also be an order that the applicant pay the respondent’s costs. Do you seek them on the basis of the schedule or indemnity costs, Mr Winburn-Clarke, in the circumstances?
MR WINBURN-CLARKE: Indemnity basis, your Honour.
HIS HONOUR: All right. Well, I think it’s an appropriate case for the reasons that I will make clear in due course, that the applicant pay the respondent’s costs on an indemnity base, those costs to be assessed by a registrar of this court.
MR ELLIS: Not paying anything.
HIS HONOUR: And, (3) that reasons for judgment in relation to orders 1 and 2 be published electronically from chambers at a later date. All right. The orders in those terms. The court will adjourn until 2.15.
Consideration
Orders with respect to non-compliance
Rule 13.03A(1) of the FCC Rules provides as follows:
(1) For rule 13.03B, an applicant is in default if the applicant fails to:
(a) comply with an order of the Court in the proceeding; or
(b) file and serve a document required under these Rules; or
(c) produce a document as required by Part 14; or
(d) do any act required to be done by these Rules; or
(e) prosecute the proceeding with due diligence.
Rule 13.03B(1) of the FCC Rules provides as follows:
(1) If an applicant is in default the Court may order that:
(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b) a step in the proceeding be taken within the time limited in the order; or
(c) if the applicant does not take a step in the time mentioned in paragraph (b) -the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.
The Court can only exercise power under r.13.03B(1) of the FCC Rules if an applicant is in default. To determine whether an applicant is in default regard must be had to r.13.03A(1) of the FCC Rules.
The test for dismissal of an application for non-compliance with the orders of a court was set out by this Court in Wadjemup Trading at [26]-[32] per Judge Lucev as follows:
26. Rule 13.03B(1)(a) of the FCC Rules requires the Court to objectively assess all of the circumstances and to determine if the non-compliance is sufficiently serious, at this stage, to warrant dismissal of the application for default in failing to comply with orders of the Court: Wintle v RUC Cementation Mining Contractors Pty Ltd [2012] FMCA 140 at [21] per Lucev FM (“Wintle”). In Wintle at [21] per Lucev FM the then Federal Magistrates Court (“FM Court”) took into account in objectively assessing all of the circumstances (and in determining to give Mr Wintle a further opportunity to put his claim in proper order):
a) that it was the first occasion on which Mr Wintle had not complied with orders of the FM Court;
b) that Mr Wintle was self-represented;
c) a submission (to which “some regard” was had) that Mr Wintle did not understand what was required of him by the relevant orders; and
d) the “exceptional caution” exercised when determining whether to dismiss claims containing allegations of unlawful discrimination (and citing in that regard Oorloff & Anor v Lee & Ors [2004] FMCA 893 at [49] per Walters FM and Portuguese Cultural and Welfare Centre Inc v Australian Media and Communications Authority [2011] FMCA 144; (2011) EOC 93-600 at [116] per Lucev FM).
27. This Court has more recently observed that the exercise of the discretion to dismiss for non-compliance with a Court’s orders is not commonplace, and further, that orders under r.13.03B(1) of the FCC Rules ought to be exceptional: Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159 at [20] and [28] per Judge Lucev.
28. In Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388; (1990) 98 ALR 200; [1991] ATPR 41-082 (“Lenijamar”) the Full Court of the Federal Court established principles concerning applications to dismiss a proceeding based on non-compliance with court orders.
29. In Lenijamar the Full Court of the Federal Court considered the discretionary power to make orders under then O.10 r.7 of the then Federal Court Rules 1976 (Cth) (“1976 FC Rules”). That order was in substantially the same terms as r.13.03B(1) of the FCC Rules. After making some general observations about the scope of O.10 r.7 of the 1976 FC Rules, the majority of the Full Court of the Federal Court in Lenijamar FCR at 396 per Wilcox and Gummow JJ cautioned that:
We would not wish our observations to cause respondents to apply for dismissal of proceedings simply because there has been a non-compliance with a direction by the applicant, even though it does not cause or indicate a continuing problem in preparing the matter for an early trial.
30. The majority of the Full Court of the Federal Court in Lenijamar observed that whilst it was undesirable to exhaustively outline the circumstances in which the power under O 10 r.7 of the 1976 FC Rules would be appropriately exercised, two situations were obvious candidates for the exercise of the power: Lenijamar FCR at 396 per Wilcox and Gummow JJ.
31. The first situation outlined in Lenijamar arises where there has been a history of non-compliance by an applicant to indicate an inability or unwillingness to cooperate with the Court and the other party or parties in bringing the matter to a hearing within an acceptable period: Lenijamar FCR at 396 per Wilcox and Gummow JJ. Importantly, there is:
no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court’s judgement as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule.
Lenijamar FCR at 396 per Wilcox and Gummow JJ.
32. The second situation outlined in Lenijamar arises where, whatever an applicant’s state of mind or resources, the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent: Lenijamar FCR at 396 per Wilcox and Gummow JJ.
It is plain that Mr Ellis has not complied with orders 1 and 2 of the Court’s orders of 22 November 2016. In ordering the dismissal of Mr Ellis’ Application against Arirang Restaurant by reason of that non-compliance, the Court had regard to:
a)the Court’s comments in Arirang Restaurant (No 1) where it determined that the Application was not without prospects of success, but that the proceedings were at a very early stage, and that Mr Ellis had not filed any evidence, had not particularised his disability, and had not filed any expert evidence concerning his disability: Arirang Restaurant (No 1) at [15]-[20] per Judge Lucev. The comments made by the Court in Arirang Restaurant (No 1) make it plain that there is a necessity to file evidence, including expert evidence so as to identify the relevant disability, and identify that the alleged discrimination is because of that disability. The necessity to do so is well established: DD Act, s.5(1) and (2); Purvis; Gama at [90]-[91] per French and Jacobson JJ. In Gama a ground of appeal in relation to alleged disability discrimination was successful because Mr Gama made “no attempt … to identify a disability which allegedly caused the less favourable treatment”: Gama at [90] per French and Jacobson JJ, and the first instance court “did not identify the relevant disability nor the particular way in which the remarks constituted less favourable treatment because of the disability”: Gama at [91] per French and Jacobson JJ;
b)Mr Ellis’ August 2016 Affidavit is in large part irrelevant and scandalous, and therefore inadmissible: Sims v Jooste & Ors (No.3) [2016] FCCA 1751 at [24]-[30] per Judge Lucev, and fails to:
i)indicate with any particularity what actually happened, when it happened or where it happened; and
ii)identify how the alleged discrimination was based on the particular disability, that is that the applicant was discriminated against “because of” a disability;
c)the Court’s inability to have regard at a final hearing to material contained in the AHRC complaint, as that forms no part of the Originating Application, or any relevant pleading, save for the purposes of ascertaining whether or not the Originating Application is in relation to substantially the same alleged acts of discrimination as was the AHRC complaint: Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573; (2000) 105 IR 153 at [37]-[41] per Katz J; Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118; (2010) 63 AILR 101-302 at [46]-[48] and [50] per Marshall, Rares and Flick JJ; Kanyana Wildlife at [27]-[29] per Judge Lucev;
d)the fact that by the time that the Court made orders 1 and 2 of the orders made on 22 November 2016 Mr Ellis was generally aware of the requirement to set out his case with a sufficient degree of specificity of the material facts so as to define the issues and inform the other party of the case that had to be met: Chang v CST Minerals Lady Annie Pty Ltd [2015] FCA 620 at [19]-[21] per Mortimer J. The Court had made the orders referred to as the June 2016 Orders above in the Wadjemup Trading case, which required Mr Ellis to serve a factual summary articulating the acts or omissions alleged to constitute discrimination and to provide further facts and particulars in relation to the alleged acts or omissions (in that case of the FPA): see [23] above. In Ellis v FJM Property Pty Ltd [2016] FCCA 808 (“FJM Property”) in dismissing an application by the respondent to appear by a non-lawyer the Court observed that a paucity of information, in that case in both the Originating Application and the Response, meant that it was not possible to discern with any certainty on the face of the documents the precise or relevant factual matrix relating to the allegation of disability discrimination made by Mr Ellis: at [25] per Judge Lucev, and in relation to the quantum of compensation sought (being $1 million in that case as well) that expert evidence of the loss or damage suffered by Mr Ellis would be required to assist the Court in determining such compensation: at [28(b)] per Judge Lucev. FJM Property was delivered on 13 April 2016. In Ellis v Adventureworld (WA) Pty Ltd As Trustee of The Adventureworld Unit Trust [2016] FCCA 2504 (“Adventureworld”), a judgment delivered on 30 September 2016, this Court in dealing with an application for costs against Mr Ellis set out a passage from the judgment of the Full Court of the Federal Court in Manolakis v Carter [2008] FCAFC 183 at [12] per Spender, Graham and Tracey JJ (“Manolakis”) where the Full Court said that:
12 An aggrieved self-represented applicant must, like any other litigant, address:
•his or her standing to make claims against other persons,
•the jurisdiction of the court in which he or she wishes to make those claims,
•the precise identity of the parties against whom the claims are to be made,
•the relief that is to be sought, and
•the facts which are said to found an entitlement to that relief.
e)Mr Ellis’ submissions at the directions hearing on 24 January 2017 made it plain that he thought he had “already said it”: Transcript, page 2, and was “not doing anything more about this matter”: Transcript, page 3, and that he did not care what the Court did because the Court was making “sleazy judgments” and the Court would “let them win anyway”: Transcript, page 3, which were plainly references to the judgments of the Court referred to at [18]-[22] above. No matter how misguided Mr Ellis’ basis for concluding that he will not do anything more in relation to this matter is, it is the case that that is his position, and it is therefore futile for the Court, against the background set out above, including the non-compliance with orders 1 and 2 of the 22 November 2016 orders, to continue to make orders which will plainly not be complied with, and will result in ongoing non-compliance: Lenijamar at 396 per Wilcox and Gummow JJ;
f)it would be futile for this matter to proceed to the presently listed final hearing on 16 March 2017 in circumstances where:
i)Mr Ellis bears the onus of proof generally: Ferrus v Qantas Airways Limited [2006] FCA 812; (2006) 155 IR 88 at [48] per Collier J; Vassollo v Jetswan Pty Ltd [2010] FMCA 708 at [20] per Lloyd-Jones FM (“Jetswan”) (and cases there cited), save where a person against whom indirect discrimination is alleged has to prove that a requirement or condition imposed which must be complied with by the person alleging discrimination is reasonable: DD Act, s.6; Jetswan at [20] per Lloyd-Jones FM (and cases there cited), but Mr Ellis has filed no affidavit, or any other material, capable of fulfilling the onus of proof;
ii)the lack of materials, and the refusal to file any further materials, means that Mr Ellis has put no materials before the Court as to the conduct alleged to constitute disability discrimination (including a clear factual statement as to when, where and how the discrimination occurred), or whether the discrimination is direct or indirect, and importantly in a disability discrimination case, there is no indication as to what disability Mr Ellis suffers from, or how any disability actually gave rise to any discrimination. Nor is there any setting out of the less favourable treatment alleged or any alleged comparators (for the purposes of direct discrimination under s.5 of the DD Act), or the facts which constitute a requirement or condition which is not reasonable in the circumstances of the case and which is likely to have the effect of disadvantaging a person with the relevant disability (for the purposes of indirect discrimination under s.6 of the DD Act); and
iii)it is not sufficient for Mr Ellis to merely establish a terminated complaint, that he is an affected person, and for him to allege unlawful discrimination, or to assert that any failings in the “pleadings” (in this case, materials before the Court) did not necessarily have to plead out or establish every element of the alleged unlawful discrimination: Shurat HaDin, Israel Law Center v Lynch (No. 2) [2014] FCA 413 at [36]-[37] per Robertson J; and
g)to proceed to a final hearing would be to prejudice Arirang Restaurant by causing further costs to be incurred, in circumstances where by reason the inadequacy of Mr Ellis’ August 2016 Affidavit, the failure to comply with the November 2016 orders, and the indication that Mr Ellis proposes to do nothing further in relation to the matter, there is effectively no evidence giving rise to a case which requires an answer from Arirang Restaurant.
Mr Ellis suggested during the course of the directions hearing on 24 January 2017 that he had a medical certificate which was being hidden from the Court by Court staff, and that he had been “unwell and off the system for months because of my unwellness”: Transcript, page 2.
In order to prove that he was medically unfit at the time at which he was required to comply with the 22 November 2016 orders would require evidence on oath which properly explains Mr Ellis’ medical condition, and why it prevented him from complying with those orders.
Where an indulgence (such an adjournment, an extension of time or a release from the consequences of non-compliance with court orders) is sought from a court on the basis of an alleged medical condition the requirement to file evidence on oath properly explaining a medical condition is well established.
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.
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 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] …
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:
98. … 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.
The Court has reviewed the Court file which reveals no document (be it by way of letter, email or Court filed document) in this matter, either at or about the time that Mr Ellis was required to file documents in accordance with the orders made on 22 November 2016, or otherwise, which indicates that Mr Ellis was ill or unwell, at or about the relevant time (being November 2016 to January 2017). There is no basis upon which Mr Ellis can justify the non-compliance with the 22 November 2016 orders of this Court on the basis of a medical condition or illness, because there is no evidence of those matters before the Court.
It appeared that Mr Ellis endeavoured to make some suggestion that his non-compliance might be justified by the fact that the Court had not gone down to the Arirang Restaurant for lunch, looked at the fact that they do not have a ramp, and made a decision “just based on your own eyes”: Transcript, pages 2-3; see [24] above.
The Court does, of course, undertake inspections in particular cases, and more often than not an inspection would be required where it is alleged that there is disability discrimination in relation to access to premises. To suggest however that the Court go on an inspection of its own is to invite the Court into error, and in particular to invite the Court to embark upon a course which would give rise to a reasonable apprehension of bias or a denial of procedural fairness.
In Re JRL; Ex parte CJL (1986) 161 CLR 342; (1986) 60 ALJR 528; (1986) 66 ALR 239; (1986) 10 Fam LR 917; CLR at 350 per Mason J (writing for a majority composed of himself, Gibbs CJ and Brennan J) said as follows:
A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even-handed. It is for this reason that one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented to him in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament otherwise provides. It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide.
In Re Media, Entertainment and Arts Alliance & Anor; Ex parte Hoyts Corporation Pty Limited & Ors (1994) 68 ALJR 179; (1994) 52 IR 216; (1994) 119 ALR 206; (1994) 36 AILR 154; ALR at 210 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ the High Court held that a judge’s decision should be made on the basis of the evidence and arguments in the case, and not “on the basis of information or knowledge which is independently acquired” because information independently acquired might result in the parties or the public entertaining a reasonable apprehension that information or knowledge independently acquired will influence the decision.
A judge who engages in their own research as to the facts, or inspects particular places without the parties or their representatives present, may leave open the perception that a case is decided on evidence other than that received or referred to in the courtroom and known to both parties. In Le v Magistrate Barbara Lane [2014] WASC 494 at [34] per EM Heenan J (“Le”), a case involving a magistrate undertaking independent research on Google concerning certain aspects of the evidence in a criminal trial, the Supreme Court of Western Australia held that the magistrate’s research was not fully disclosed, and that there were no means by which it could be fully disclosed or verified, and therefore the applicants were deprived of the opportunity to ascertain the full extent and content of any adverse material which had come to the magistrate’s attention: Le at [36] per EM Heenan J.
It would, therefore, be inappropriate, for a judge of the Court hearing this matter to embark upon an independent inspection of the premises the subject of the proceedings, particularly at this stage when the pleadings and evidence are not closed. Absent exigent circumstances the time and place for inspections in a case such as this is when the pleadings and evidence have closed. Ordinarily, an inspection will be undertaken shortly before, or during the course of, any hearing of the Application for final relief, and in the presence of all relevant parties or their representatives. The failure of the presiding judge to inspect the premises concerned in this litigation at this stage cannot therefore justify Mr Ellis’ non-compliance with the Court’s orders of 22 November 2016.
Indemnity costs
A court may order indemnity costs in circumstances which show some element of improper, or at least unreasonable, conduct by a party: Colgate-Palmolive Company & Anor v Cussons Pty Limited (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 28 IPR 561; FCR at 233 per Sheppard J (“Colgate-Palmolive”), and in those circumstances an order for indemnity costs may reflect the Court’s disapproval of the conduct of the unsuccessful party: Fazio v McNally [2014] WASCA 79 at [48] per Pullin and Newnes JJA. Where, for example, a party was offered the opportunity to withdraw without costs, and warned that a costs application would be made if the opportunity was not taken up, and where the party did not take that offer up “but instead counter-attacked with venom in the subsequent affidavit” indemnity costs were awarded: Lance v QAV Pty Ltd [2013] WASC 13 at [21]-[22] per McKechnie J.
As the Full Court of the Federal Court observed in Manolakis at [9] per Spender, Graham and Tracey JJ:
Nor do courts exist to allow the frustrations of self-represented litigants to be relieved by the making of abusive or contemptuous tirades directed at those whom they perceive to have wronged them, judicial officers who may have decided not to find for them, or judges whose duty it is to hear them, when such litigants sense that the expressions of their grievances are not being favourably received by the court.
This Court has determined that serious allegations scandalously made about the conduct of legal practitioners, including lawyers for parties involved in the litigation, warrant an award of indemnity costs: Sims v Jooste & Ors (No.4) [2016] FCCA 2641 at [89]-[93] per Judge Lucev.
The discretionary categories in respect of which indemnity costs may be awarded are not closed and other elements of litigious misconduct may be relevant in considering an award of indemnity costs: Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, French J, 3 May 1991) at page 8 per French J.
In this case the Court observes that:
a)as early as 23 May 2015 Arirang Restaurant’s then solicitors wrote to Mr Ellis requesting a detailed explanation for each claim, but as is evident from the above Reasons for Judgment and those in Arirang Restaurant (No 1) no proper particulars of Mr Ellis’ claim have ever been provided to Arirang Restaurant: see affidavit of Young Chan Yu sworn 7 July 2015 (“Yu’s July 2015 Affidavit”) at [13];
b)on 21 June 2015 Mr Ellis sent an email to Arirang Restaurant’s then solicitors threatening that if they did not give in to his demands he would take an elder discrimination claim on behalf of his elderly mother in addition to his disability discrimination claim, and threatened to increase the amount claimed to $5 million (from the $1 million in the Application): Yu’s July 2015 Affidavit at [19] and Annexure J;
c)Mr Ellis published on Facebook a letter to Mr Yoon of Chan Galic, Arirang Restaurant’s then solicitors, in which he said that Mr Yoon’s name was a “poof name in Australia”, and asked whether he was “shafting your boyfriend client” and asked whether the firm’s name was “CHONG GAY LICK”, and went on to make various disparaging observations about the national and racial characteristics of the proprietors of Arirang Restaurant, including describing them as “Chinese criminals”, “deceiving worms”, people with “narrow mind and narrow sight” and “cowardly yellow skin” and inviting them to “open the zippers on your eyes and lean forward to stop the slope angles on your mind from blocking your vision”, amongst others: Mr Yu’s July 2015 Affidavit at [20] and Annexure K;
d)at the hearing of the security for costs application on 10 March 2016 the Court told Mr Ellis that this case was not about Mr Yoon, whom Mr Ellis had adverted to as being of “Asian background”: Transcript, 10 March 2016, page 14;
e)Mr Ellis’ August 2016 Affidavit:
i)contains material largely irrelevant to the establishment of a claim of disability discrimination, being comment, opinion and argument, rather than fact related to the claim before the Court; and
ii)engages in criticism, none of it relevant to Mr Ellis’ actual claim, and much of it scandalous, directed towards Mr Yoon: see for example [12]-[18] of Mr Ellis’ August 2016 Affidavit at [10] above; and
f)at the directions hearing on 24 January 2017 Mr Ellis’ conduct was wholly reprehensible, and included:
i)racist slurs (including the use of the words “smack face”) against Arirang Restaurant and those involved in and associated with it;
ii)disgraceful and unwarranted abuse of Arirang Restaurant’s new lawyer, Mr Winburn-Clarke; and
iii)an implication that the presiding judge was not impartial, including an assertion, which is not true, that the presiding judge and Mr Winburn-Clarke were engaged in an undisclosed sexual relationship.
See Transcript, pages 2-3; see [24] above.
The reprehensible abuse and untruthful assertions made by Mr Ellis in these proceedings are an affront to the administration of justice, and no court, and no lawyer appearing in a court, should have to put up with them. The Court is therefore of the view that the above circumstances warrant an award of indemnity costs in these proceedings, and that the nature of Mr Ellis’ conduct in this matter as a whole warrants the Court exercising its discretion such that the award of indemnity costs ought to extend to all of the proceedings in this matter (including the application for security for costs in respect of which Arirang Restaurant was not successful).
Conclusion and orders
For the reasons set out above, the Court made the orders set out at [1] above on 24 January 2017, as amended on 10 February 2017.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 10 February 2017
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