Ellis v Silver Vision Pty Ltd (No.3)
[2018] FCCA 1024
•24 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v SILVER VISION PTY LTD (No.3) | [2018] FCCA 1024 |
| Catchwords: PRACTICE AND PROCEDURE – Adjournment – factors for consideration. |
| Legislation: Federal Circuit Court Rules 2001(Cth), rr.1.03, 29.06 Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42, 78 |
| Cases cited: Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 Ellis v Silver Vision Pty Ltd trading as Arirang Korean BBQ Restaurant & Café [2018] FCA 333 |
| Applicant: | TROY ELLIS |
| Respondent: | SILVER VISION PTY LTD TRADING AS ARIRANG KOREAN BBQ RESTAURANT & CAFE |
| File Number: | PEG 5 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 24 April 2018 |
| Date of Last Submission: | 24 April 2018 |
| Delivered at: | Perth |
| Delivered on: | 24 April 2018 |
REPRESENTATION
| Applicant: | Appeared in person by telephone |
| Counsel for the Respondent: | Mr B A Winburn-Clarke |
| Solicitors for the Respondent: | SRB Legal |
ORDERS
That pursuant to r.29.06 of the Federal Circuit Court Rules 2001 (Cth) a warrant be issued for the arrest of Mr Troy Carlton Ellis, date of birth 30 March 1970, (also known as Troy Ellis) and formerly of 1/58 Palmerston Street, Saint James, in the state of Western Australia.
That the Court cause a copy of the Reasons for Judgment and a transcript of the hearing for the issuance of an arrest warrant to be provided to the Deputy Principal Registrar to be provided to the Western Australian Police for consideration of whether further action is required in relation to the threat made to the Respondent’s lawyer in Court over the telephone.
That the applicant pay the respondent’s costs of the means inquiry summons in the amount of $7,801.00 by 30 June 2018.
| 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 & CAFE |
Respondent
REASONS FOR JUDGMENT
(Delivered Ex-Tempore and later edited)
Introduction
Before the Court is an application by the respondent in the matter, Silver Vision Pty Ltd Trading as Arirang Korean BBQ Restaurant & Café (“Silver Vision”), for the issue of an arrest warrant in relation to the applicant, Troy Carlton Ellis (“Mr Ellis”), also known as Troy Ellis, which arises from a summons to Mr Ellis to attend a means inquiry before a Registrar of this Court in relation to a costs order against Mr Ellis arising from human rights proceedings in this Court.
Background
In the circumstances of the case, the Court will traverse in a little detail the relevant litigation history of the matter which is as follows:
a)on 24 January 2017, and amended on 10 February 2017 but only in respect to a minor typographical detail, the Court made orders (“January 2017 Orders”) as follows:
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 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.
b)the Reasons for Judgment in relation to the January 2017 Orders are Ellis v Silver Vision Pty Ltd T/A Arirang Korean BBQ Restaurant & Café (No.2) [2017] FCCA 151; (2017) 318 FLR 111 (“Silver Vision (No.2)”). In Ellis v Silver Vision Pty Ltd trading as Arirang Korean BBQ Restaurant & Café [2018] FCA 333 (“Silver Vision-Federal Court”) the Federal Court dismissed an application by Mr Ellis for an extension of time to appeal Silver Vision (No.2);
c)at the time the January 2017 Orders were sought, there was a claim for costs by Silver Vision in the sum of $32,019, and on 13 June 2017, a Registrar issued a Certificate of Taxation allowing Silver Vision’s costs in this matter in the sum of $32,000 (“Judgment Debt”);
d)on 29 June 2017, Silver Vision filed an application (Form 6) for a property seizure and sale order (Form 25) (those forms being prescribed for the purposes of the Civil Judgments Enforcement Act 2004 (WA) (“CJE Act”)) supported by an affidavit by a lawyer for Silver Vision, Mr Winburn-Clarke. The property seizure and sale order sought recovery of the Judgment Debt in the sum of $33,271 (that amount having increased since 24 January 2017 by reason of interest payable on the Judgment Debt);
e)on 5 October 2017 an application in a case was filed to compel Mr Ellis to attend a means inquiry, pursuant to s.27 of the CJE Act, and to produce certain documents relevant to his financial circumstances. A means inquiry summons was issued with an endorsed hearing date of 16 November 2017 at 10.15am (“Summons”). The Summons was served on Mr Ellis on 18 October 2017;
f)on 16 November 2017 there was no attendance by Mr Ellis, and a Registrar of this Court ordered that the Summons be adjourned to 4 December 2017 at 2.15 pm; and
g)on 4 December 2017 there was again no attendance by Mr Ellis, and a Registrar of this Court ordered that the Summons be listed before a Judge of the Court on a date to be fixed. There was a date fixed in January 2018, but that date was adjourned administratively to 16 March 2018 when the Summons came before the Court as presently constituted, and again there was no appearance by Mr Ellis. Orders were made on 16 March 2018 (“March 2018 Orders”) as follows:
1. The matter be adjourned to a further directions hearing on 24 April 2018 at 10.15am.
2. The respondent serve a copy of these orders on the applicant by 23 March 2018 by:
a) registered post addressed to the applicant at [address omitted];
b) email to [email omitted]; and
c) text message to [number omitted] in the form of:
i. a standard SMS identifying the file number and parties and reciting the text of this order; and
ii. a MMS picture message of this order of such clear resolution that the applicant can read the text,
and file an affidavit of service by 29 March 2018.
3. Any application to appear other than in person or for an adjournment of the directions hearing:
a) be made by no later than 6 April 2018;
b) must be made by way of an application in a case supported by an affidavit or affidavits;
c) be provisionally listed for hearing at 10.15am on 11 April 2018; and
d) if made on medical grounds:
(i) be supported by an affidavit or affidavits of a medical practitioner or medical practitioners annexing a report or reports as to the medical grounds for adjournment, such report or reports to be in the form of an expert’s report and in a form which complies with the requirements of the Expert Evidence Practice Note issued by the Federal Court of Australia on 25 October 2016; and
(ii) admission of any affidavit or affidavits or report or reports referred to in placita (i) above be subject to the deponent of any affidavit and the author of any report being made available for cross-examination by the respondent at the time provisionally listed for the hearing of any adjournment application at 10.15am on 11 April 2018, if the respondent requires them to attend for cross-examination.
4. Subject to any further order of the Court, the respondent have liberty to apply for an arrest warrant pursuant to s.29(4) of the Civil Judgments Enforcement Act 2004 (WA) if the applicant fails to appear at the directions hearing on 24 April 2018 at 10.15am.
5. The applicant file and serve a notice of address for service by 29 March 2018.
6. Costs be reserved.
h)no application was made pursuant to Order 3 of the March 2018 Orders.
The hearing today
Today the matter came on for hearing pursuant to Order 1 of the March 2018 Orders, and the Court was able to contact Mr Ellis on a telephone number previously provided for him for the purposes of his appearing by way of an audio link. The Court should indicate that on a number of occasions recently, Mr Ellis has not been available on that number and other matters have proceeded in his absence.
Having taken appearances, the following exchanges occurred (Transcript 24 April 2018, p.2, lines 16-45):
HIS HONOUR: Now, this is an application which is on today as a consequence of there being liberty to apply for the issuance of an arrest warrant by reason of Mr Ellis’ non-attendance at means inquiries or attendance in response to a summons to attend a means inquiry before a registrar. So, Mr Winburn-Clarke, what do you say?
MR WINBURN-CLARKE: Yes, your Honour. So not only the non-attendance, but it’s also the failure to complete the relevant documentation which is associated with the means inquiry summons, and also ‑ ‑ ‑
HIS HONOUR: Yes.
MR WINBURN-CLARKE: ‑ ‑ ‑ to produce the relevant records that are commanded to be produced by that summons. So the matter was before the court on 18 October. There was no appearance. It was before the court on 16 November, no appearance. Before the court on 4 December, no appearance. So I would be continuing to seek an order for arrest, and I would be seeking that order under ‑ ‑ ‑
MR ELLIS: You’re a very sick man, Clarke. You’re a very sick man.
HIS HONOUR: Mr Ellis, you will get your turn. Just wait.
MR ELLIS: I don’t give a fuck. Threatening to arrest a disabled bloke. I will fucking have someone kill that fucker.
HIS HONOUR: Mr ‑ ‑ ‑
MR ELLIS: Fuck off. Fuck off, Lucev.
HIS HONOUR: All right. No doubt the transcript recorder will record that exchange verbatim. Continue, Mr Clarke.
Issuance of an arrest warrant
In the circumstances outlined above, it is certainly arguable that, on the face of it, Silver Vision is entitled to have an arrest warrant issued in relation to Mr Ellis.
The Court has been sent correspondence in recent times by Mr Ellis in relation to all of his matters before the Court, and not just this matter, in which he has, by email to Chambers, sought an adjournment of the matter for six months on the basis that he cannot attend to this and the other litigation on foot because:
a)he has been evicted from his premises in Western Australia, that he has travelled to Victoria and seemingly, although one cannot be sure, remains there, and is homeless; and
b)of his health circumstances.
The Court’s written response to Mr Ellis’ correspondence was to indicate to him that if he wished to have the proceedings adjourned, then he ought to make an application in a case supported by an affidavit. Mr Ellis has not done so. In any event, having regard to the type of factors to be considered in relation to an adjournment, those factors are also factors which play into the discretion to issue an arrest warrant and which do not fall in favour of an adjournment (for reasons which follow). In the Court’s view, there is, in relation to the application by Mr Ellis with respect to his health, no evidence before the Court in relation to Mr Ellis’ health issues (and see order 3(d) of the March 2018 Orders, set out at [2(g)] above), and the Court will return to that matter. In any event, Mr Ellis did in fact appear today, albeit briefly by telephone, and hence the issue of an adjournment is arguably otiose.
For the record, because it will be relevant to the costs of this application, the Court notes that contrary to a submission made my Mr Winburn-Clarke, there was, according to the Court’s records, no appearance by anyone on 18 October 2017, that being a day on which the Summons was actually served, according to an affidavit filed by Rhona Lea Carolin.
Turning to the issue of an arrest warrant, the March 2018 Orders provide for liberty to apply for an arrest warrant if Mr Ellis failed to appear at the directions hearing today. Mr Ellis did not fail to appear, but, effectively, terminated his appearance after the exchange set out at [4] above, and did not make any submissions in relation to the substantive issue of the arrest warrant under consideration by the Court today.
The Court’s power to issue an arrest warrant arises in the circumstances pursuant to ss.78(2) and (3) of the Federal Circuit Court of Australia Act1999 (Cth) (“FCCA Act”), which provide for the same remedies as are provided for under relevant state legislation to be remedies to be adopted by this Court in relation to the enforcement of judgments. In that regard, it is relevant to note that r.29.06 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) does provide for the issuance of an arrest warrant in aid of orders which are not complied with.
The CJE Act provides in ss.26-31 for various matters relating to a means inquiry, in particular, for a summons to attend a means inquiry under s.29(1)(a) of the CJE Act, and for the application for a means inquiry to be made under s.27 of the CJE Act, which application went before a Registrar of the Court. That application was personally served, as required by s.29(3) of the CJE Act on Mr Ellis, and that is proven by the affidavit of service of Rhona Lea Carolin of 18 October 2017 in the form of a Form 11 for the purposes of the CJE Act.
The consequence of the relevant legislative provisions, together with the history that the Court has outlined, was the March 2018 Orders that Silver Vision may apply for an arrest warrant, in terms of the order pursuant to s.29(4) of the CJE Act, but probably more pertinently and correctly, as Mr Winburn-Clarke points out in submissions, the arrest warrant ought to issue pursuant r.29.06 of the FCC Rules, both as a matter of the correct interpretation of the various legislative provisions, but also in practical aid of the issuance of the arrest warrant, because an arrest warrant issued under r.29.06 of the FCC Rules can issue variously and to each and all of the Marshal of the Court, the officers of the Australian Federal Police and officers of the various police forces of the various states and territories, whereas it is arguable that an arrest warrant issued under s.29(4) of the CJE Act operates only in Western Australia. The issuance of an arrest warrant is nevertheless discretionary, and the Court turns to look now at the various discretionary factors.
In terms of case management, particularly the factors outlined in Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14, this is a case which has been on foot for three years. The substantive application has been dismissed for non-compliance, and the Court is, by reason of ss.3 and 42 of the FCCA Act and r.1.03 of the FCC Rules, obliged not to unduly protract the matter.
Mr Ellis has had the opportunity to put evidence before the Court, both in relation to the substantive application, any application for an adjournment, or any application for a form of appearance other than in person, and has not done so: see Order 3(d) of the March 2018 Orders set out at [2(g)] above; Silver Vision (No 2) at [13], [29(a), (d) and (f)(i)] and [38] per Judge Lucev. Rather, his conduct today, and his request by way of correspondence, seek, on the basis of no evidence or indeterminate indicators, to put off the hearing of the means inquiry to an indeterminate date on which Mr Ellis might be available.
In regard to the correspondence, the Court observes that Mr Ellis has the capacity to write lengthy and discursive emails to Chambers, and in those circumstances, can see no reason why he cannot draft and file electronically an appropriate application for an adjournment and affidavit: see order 3(d) of the March 2018 Orders, set out at [2(g)] above. The Court bears in mind that Mr Ellis is now a very experienced litigant, having no less than 32 matters filed in this Court since the commencement of the electronic court file system in November 2014, and to the Court’s knowledge some matters prior to that, and also a number of matters which have been appealed to the Federal Court from judgments of this Court. The Court also bears in mind that Mr Ellis has had the capacity, seemingly, to travel to Victoria following his eviction from his home in Western Australia, and has provided no reason why he cannot attend or appear in this Court personally. The Court notes that Mr Ellis did attend by telephone today, in circumstances and with the outcome which the Court has set out above: see [4] above.
In terms of prejudice to Silver Vision, the Judgment Debt is for a not insignificant amount in favour of Silver Vision, and on the face of it, Silver Vision is entitled to seek to recover those costs. By contrast, Mr Ellis seems determined to avoid at all costs attending the means inquiry in this matter. Plainly, in those circumstances there is, on the evidence, a greater prejudice to Silver Vision than there is to Mr Ellis, in circumstances where, as the Court has said, Silver Vision is entitled to costs under the Judgment Debt, and has not been able to recover those costs, and there has been no endeavour by Mr Ellis to either pay the costs or to attend the means inquiry to which he has been summoned. In those circumstances, the interests of the administration of justice weigh in favour of the issue of an arrest warrant, and also weigh in favour of the matter not being further adjourned, the question of adjournment ultimately being one of discretion for the Court: Myers v Myers [1969] WAR 19 at 21 per Jackson J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [9]-[10] per Judge Lucev.
Dealing further with the factors in relation to the exercise of the discretion in relation to the issue of an arrest warrant, the Court is of the view that there would be ongoing prejudice to Silver Vision, by reason of non-payment and increasing costs and further costs of ongoing litigation if an arrest warrant were not issued. But also, it is the fact that unless Mr Ellis is arrested and brought to the Court to answer the means inquiry summons, there is no apparent means by which the Judgment Debt issue can be resolved, and to the further prejudice of Silver Vision, there would be ongoing proceedings in the matter at an indeterminate time and for an indeterminate period.
The matter has, quite frankly, reached a stage where there does not appear to be any other means, particularly given what was said to the Court today by Mr Ellis in his brief appearance, of getting Mr Ellis before the Court, and more particularly before a Registrar, on the means inquiry. The matter has reached a stage where the resolution of the matter requires a means of getting Mr Ellis before the Court.
In regard to the possible impact on Mr Ellis, and irrespective of what he said today, the Court notes that in relation to the asserted disability, which was the subject of the substantive proceedings, that no evidence has been led before the Court as to that disability or, more particularly, to the extent of that disability and its effect upon Mr Ellis, either in terms of his capacity to attend the proceedings, his capacity to understand the proceedings, or as to any reason why he ought not attend proceedings or ought not be arrested. The Court is conscious of the fact that Mr Ellis asserts a disability, but on the evidence he has not established a disability, or perhaps more relevantly, the extent or effect of any disability that he may have, and there does not appear to be any reason why he ought not be arrested in these circumstances.
The Court, again, notes that despite the fact that he pleads homelessness, he has nevertheless managed to go to Victoria rather than attend Court here in the Perth Registry. The reasons for his going to Victoria are unknown in the circumstances. So those sorts of factors, to the extent that they might be relevant, do not, in the Court’s view, weigh in his favour against the issuance of an arrest warrant.
The Court is of the view that, having regard to all of the matters to which it has adverted and discussed above, it ought to issue an arrest warrant for Mr Ellis, pursuant to r.29.06 of the FCC Rules. There will, therefore, be an order pursuant r.29.06 of the FCC Rules that a warrant issue for the arrest of Troy Carlton Ellis (also known as Troy Ellis).
Having regard to what was said to the Court today by Mr Ellis, and bearing in mind that this is not the first occasion upon which Mr Ellis has engaged in what can, properly be described as both atrabilious and vile outbursts, particularly in relation to Silver Vision’s lawyers, but also the Court: see, for example, Silver Vision-Federal Court at [5] per McKerracher J; Silver Vision (No 2) at [10], [24], [49(c) and (d)] and [50] per Judge Lucev, and which can be said in the circumstances, particularly of today, to be contemptuous, the Court proposes to ask the Deputy Principal Registrar of the Court to refer the transcript of today’s proceedings (including these Reasons for Judgment), together with other relevant papers (which might include the judgment in Silver Vision (No 2), where certain other comments were made about Silver Vision’s lawyers, and the Court, as presently constituted), to the relevant police force, for further investigation: Criminal Code 1913 (WA), ss.7(d), 279 and 338; Criminal Code 1995 (Cth), s.474.15, Dictionary (“carriage service”). And the Court will also consider, given what was said today by Mr Ellis, whether or not, separate to that, Mr Ellis ought to face a charge of contempt of court in relation to his comments to the presiding judicial officer.
Conclusion
The Court makes the following orders:
a)that pursuant to r.29.06 of the Federal Circuit Court Rules 2001 (Cth) a warrant be issued for the arrest of Mr Troy Carlton Ellis, date of birth 30 March 1970, (also known as Troy Ellis) and formerly of 1/58 Palmerston Street, Saint James, in the state of Western Australia;
b)that the Court cause a copy of the Reasons for Judgment and a transcript of the hearing for the issuance of an arrest warrant to be provided to the Deputy Principal Registrar to be provided to the Western Australian Police for consideration of whether further action is required in relation to the threat made to the Respondent’s lawyer in Court over the telephone; and
c)that the applicant pay the respondent’s costs of the means inquiry summons in the amount of $7,801.00 by 30 June 2018.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 7 May 2018
Key Legal Topics
Areas of Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Procedural Fairness
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