Ellis v Silver Vision Pty Ltd Trading as Arirang Korean BBQ Restaurant and CafÉ
[2016] FCCA 907
•22 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v SILVER VISION PTY LTD TRADING AS ARIRANG KOREAN BBQ RESTAURANT & CAFÉ | [2016] FCCA 907 |
| Catchwords: COSTS – Security for costs – factors for consideration. WORDS AND PHRASES – “prospects of success” – “public interest”. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), s.46PO Federal Circuit Court of Australia Act 1999 (Cth), s.80 Federal Circuit Court Rules (Cth), Schedule 1, Part 1, r.21.01 |
| Cases cited: Attorney-General v Wentworth (1988) 14 NSWLR 481 Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors [2010] FMCA 932; (2010) 244 FLR 335 Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd & Ors (1987) 16 FCR 497 Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 Frigger v Banning [2016] FCA 359 Greenwood v World of Maths Pty Ltd [2005] FMCA 1557 Kancheff v Charles Darwin University & Ors [2013] FCCA 1564 Kancheff v Charles Darwin University [2013] FCA 1252 KP Cable Investments Pty Ltd vs Meltglow Pty Ltd (1995) 56 FCR 189; (1995) 13 ACLC 437 Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310 McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70; (2005) 220 ALR 587; (2005) 88 ALD 12; (2005) 41 AAR 23 Merribee Pastoral Industries v Australia & New Zealand Banking Group Ltd (1998) 193 CLR 502; (1998) 72 ALJR 1055; (1998) 155 ALR 1; (1998) 16 ACLC 1302; (1998) 28 ACSR 103 Pacific Acceptance Corporation Ltd v Forsyth (No. 2) [1967] 2 NSWR 402 Rana v Commonwealth of Australia [2013] FCA 189 Re Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 187 Silver Fox Co Pty Ltd v Lenards Pty Ltd (No. 3) [2004] FCA 1570; (2004) 214 ALR 621 Singer v Berghouse (1993) 67 ALJR 708; (1993) 114 ALR 521 Ugly Tribe Co Pty Ltd v Sikola & Ors [2001] VSC 189 |
| 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: | 10 March 2016 |
| Date of Last Submission: | 10 March 2016 |
| Delivered at: | Perth |
| Delivered on: | 22 April 2016 |
REPRESENTATION
| For the Applicant: | In person (by telephone, by leave) |
| Counsel for the Respondent: | Mr B Yoon |
| Solicitors for the Respondent: | Chan Galic |
ORDERS
That the respondent’s application in a case filed on 12 August 2015 be dismissed.
The matter be adjourned to a further directions hearing on 12 May 2016 at 9.30am.
| 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
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, but also says that if the Application is “allowed to proceed” then Mr Ellis should pay Arirang Restaurant’s security for costs.
On 14 July 2015 the Court made the following orders:
1.The respondent file and serve an application in a case with respect to security for costs, any further affidavits in support and an outline of submissions by 14 August 2015.
2.The applicant file and serve any affidavits in opposition and an outline of submissions by 14 September 2015.
3. The respondent’s application in a case be listed for interlocutory hearing at 10.15am on 10 March 2016.
4.Costs today be reserved.
The application in a case for security for costs
On 12 August 2015 Arirang Restaurant filed an application in a case for security for costs (“Security for Costs Application”), seeking the following orders:
1.The Applicant provide security for costs in respect of these proceedings by making a payment to the Court in the sum of $36,000 within 3 months from the date of these Orders.
2.The Applicant’s proceeding in the meantime be stayed until the above security of costs is provided by the Applicant.
3.In the event that the Applicant fails to comply with Order 1 above, the Applicant’s Application in these proceedings be dismissed.
Evidence in relation to the Security for Costs Application
Arirang Restaurant’s Security for Costs Application was supported by three affidavits of Young Chan Yu dated 7 July 2015, 12 August 2015 and 28 August 2015, which were referred to as “Mr Yu’s First Affidavit”, “Mr Yu’s Second Affidavit” and “Mr Yu’s Third Affidavit” respectively.
In Mr Yu’s First Affidavit he:
a)referred to a letter from the Australian Human Rights Commission (“AHRC”) dated 29 October 2014 (“AHRC Letter”) in which the AHRC says that Mr Ellis had complained alleging disability discrimination in access to premises and the provisions of goods, services and facilities under the DD Act, and attaching ss.5, 6, 11, 23, 24 and 29A of the DD Act (“AHRC Complaint”) which were said by the AHRC to “appear to be relevant”. The summary of the AHRC Complaint was that Mr Ellis had a mobility disability, and alleged that Arirang Restaurant had “steps leading into it and that he is not able to access the building”;
b)says that the AHRC Complaint actually made by Mr Ellis to the AHRC on 3 August 2014, email headings apart, reads as follows:
Dear Commissioner
I wish to lodge a formal disability discrimination complaint.
Arirang Café
91-93 Barrack Street
Perth WA 6000
08 9225 48857.15pm
Saturday 2 August 2014
They have stairs at a new business and no ramp. I want an apology, immediate work to place a ramp and compensation.
c)says that Arirang Restaurant had replied to the AHRC Letter stating that:
i)the business of Arirang Restaurant had been in operation since 4 November 2000;
ii)the building from which Arirang Restaurant operated had been in its current state for over 45 years;
iii)the building was heritage listed and therefore changes to the building were limited; and
iv)it had made an offer to Mr Ellis “to experience the best Korean cuisine in Perth Australia for free of charge”;
d)indicated that following the commencement of these proceedings in this Court, Arirang Restaurant received an email dated 24 March 2015 from Viola Steed (“Steed Email”), apparently the owner of Solutions Matchmaking Pty Ltd, advising that Mr Ellis is “a serial litigator and spends all of his time in the court system”;
e)says that at the directions hearing on 15 April 2015 he noticed that Mr Ellis had commenced legal proceedings against many other business owners;
f)says that on 16 April 2015 Arirang Restaurant’s solicitors requested the basis of Mr Ellis’s claims from him, and on 10 May 2015 received an email reply from Mr Ellis stating that he wanted a sum of $20,000 on the basis set out in the email as follows:
My demands are simple:
* $5,000 for the inaccessibility disability discrimination.
* $5,000 for all of this trouble, stress.
* $5,000 for endangering the safety of my elderly mother and myself.
* $$5,000 for lacking a disability inclusion policy.
* a formal written apology.
* changes made to make all of the Arirang restaurants fully accessible.
$20,000 IN TOTAL.
g)says that on 23 May 2015 Arirang Restaurant’s solicitors wrote to Mr Ellis requesting a detailed explanation for each of the claims, and the provision of his assets and liabilities for the purpose of security for costs;
h)says that Arirang Restaurant had received an email reply from Mr Ellis dated 27 May 2015 in which Mr Ellis stated that he had reached the amount concerned as it was a fair settlement for him, and for his mother, and that there should never have been an access issue in the first place, and that it was a small amount for Arirang Restaurant to pay, but not so small as to insult his “disability discrimination, injury risk, lack of access and duty of care, indignity and humiliation”;
i)says that by letter dated 28 May 2015 Arirang Restaurant’s solicitors sought further detailed explanation about the alleged insulting, injury risk, lack of access, duty of care, indignity and humiliation, and the provision of Mr Ellis’ assets and liabilities for the purposes of security for costs;
j)says that Mr Ellis replied to Arirang Restaurant’s solicitors letter of 28 May 2015 in an email dated 2 June 2015 to the following effect:
i)$5,000 because the city restaurant he and his mother went to last year did not have a rail or ramp in sight;
ii)$5,000 for the trouble and stress that he had to write reports to AHRC;
iii)$5,000 for a potential risk of his attempt to climb the steps with his mother; and
iv)$5,000 for lack of policy to take care of disabled people;
k)in the 28 May 2015 email Mr Ellis did not:
i)mention which city restaurant he went to, or the date and time that he allegedly did so; or
ii)provide his assets and liabilities and a copy of the AHRC Complaint;
l)says that by letter dated 4 June 2015 Arirang Restaurant’s solicitors had indicated to Mr Ellis that he had no case against Arirang Restaurant merely because he had found a city restaurant that did not have a rail or ramp, and repeated the request for the provision of his assets and liabilities and a copy of the AHRC Complaint;
m)referred to the mediation conference on 12 June 2015 (which the Court notes did not result in the settlement of the proceedings, but which it is inappropriate for the Court to have further regard to: see Evidence Act 1995 (Cth), s.131(1); Silver Fox Co Pty Ltd v Lenards Pty Ltd (No. 3) [2004] FCA 1570; (2004) 214 ALR 621 at [36] per Mansfield J);
n)referred to a 21 June 2015 email from Mr Ellis in which he stated that:
If you do not give into my demands, I will also further take out an ELDER DISCRIMINATION claim for my elderly mother … on top of my DISABILITY DISCRIMINATION CLAIM.
o)referred to and annexed a copy of a Facebook post referring to the lawyers with the conduct of the matter for Arirang Restaurant which refers to Mr Yoon, who has the day-to-day conduct of the matter for Arirang Restaurant’s lawyers, and to Arirang Restaurant’s lawyers, Chan Galic (albeit misspelt in the Facebook post), in terms which are racist and abusive. (The Court observes that the content of that letter is presently of no particular relevance to the Security for Costs Application, but that it may arguably have some relevance to an award of costs if the Application were to be dismissed, the quantum of any costs, and in particular whether indemnity costs ought be payable: see, for example, the comment of the Federal Court in Re Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 187 at [22] per French J (“Tetijo Holdings”) where it was observed that if in an individual case there is evidence of particular misconduct on the part of a party that causes loss of time to the Court and to the other parties then an order for indemnity costs or costs to be paid forthwith may be made, and noting that the categories in which the discretion to order indemnity costs may be exercised are not closed: Tetijo Holdings at [8] per French J, followed in Ugly Tribe Co Pty Ltd v Sikola & Ors [2001] VSC 189 at [7(iii)] per Harper J);
p)asserts a belief that Mr Ellis’s action is frivolous and vexatious and that he does not have a cause of action, and that this is said because he has refused to provide full particulars of his claim;
q)says that security for costs is being sought on the basis that should Arirang Restaurant be successful in defending the claim Mr Ellis may not be in a position to pay any costs, particularly where he has many proceedings before the Court; and
r)says that orders for security for costs are sought, alternatively, that the proceedings be stayed until security for costs is provided, failing which the action should be dismissed, and that those orders are sought without knowing Mr Ellis’ financial capacity to meet the legal costs in the event that the action is dismissed.
In relation to Mr Yu’s Second Affidavit some matters in Mr Yu’s First Affidavit are repeated, but he says that:
a)the restaurant operating since November 2000 is a leased property located at 91 Barrack Street in Perth;
b)the building in which the restaurant is located was first built in 1902 and the structure has been the same for the last 45 years and it is registered as a Perth Local Heritage Building;
c)there is a low stair of two steps in front of the building with a total height of 75cm;
d)Arirang Restaurant has a policy that all staff members assist any customer entering the restaurant in the event that the stairs cause difficulty;
e)Arirang Restaurant has never received any complaint from any customer about any staff member being negligent in assisting customers with a disability in accessing the restaurant, nor about not being able to dine at the restaurant because of the stairs, and the AHRC Letter was the first time such an issue had been raised;
f)Mr Ellis has taken action in this Court against 14 companies alleging the “same” complaints;
g)Arirang Restaurant received the Steed Email alleging that Mr Ellis was “a full time vexatious litigator”;
h)from his observations of Mr Ellis’ movement, demeanour and walking, he doubts whether Mr Ellis is so disabled that he could not have managed the low steps up the stairs by himself at Arirang Restaurant sometime in 2014 as alleged;
i)there were 15 staff members at Arirang Restaurant in 2014 ready to help disabled customers but none of them remember Mr Ellis attempting to enter the restaurant in 2014, and Mr Ellis has not explained as to when and how he attempted to enter Arirang Restaurant;
j)he believes that Mr Ellis has neither a cause of action against Arirang Restaurant nor any evidence that Arirang Restaurant discriminated against Mr Ellis in 2014; and
k)security for costs is sought on the basis that if Arirang Restaurant succeeds in defending the action Mr Ellis may not be in a position to pay any costs, especially when he has so many proceedings before the Court and has failed to disclose any capacity to pay any costs orders should he fail to succeed in the Application.
In relation to Mr Yu’s Third Affidavit he says that the height of the stairs referred to in Mr Yu’s Second Affidavit is incorrect, and the correct height is 33cm not 75cm.
Mr Ellis did not file any affidavits in opposition to the Security for Costs Application.
Submissions
Arirang Restaurant’s submissions
Arirang Restaurant made the following submissions:
a)Arirang Restaurant has been operating a restaurant business since 4 November 2000 at a leased property located at 91 Barrack Street Perth WA 6000;
b)the building has been in the current state for the last 45 years and is registered as a state heritage building;
c)because of the building’s age the Disability (Access to Premises – Buildings) Standards 2010 (Cth) (“Standards”) do not apply;
d)there is a set of three steps in front of the building, being almost equivalent to one and a half ordinary steps;
e)although the stairs of the building are relatively low compared to other ordinary stairs, Arirang Restaurant has a policy for all staff members to assist customers with a disability when they wish to come in the restaurant;
f)Mr Ellis explained in his email dated 2 June 2015 that he noticed in 2014 that Arirang Restaurant did not have a ramp or rail and he alleged that that meant that he could not access the Arirang Restaurant;
g)from Mr Ellis’ email explanation, Arirang Restaurant could only infer that his claim is based on the fact that Arirang Restaurant’s does not have a ramp or rail;
h)the mere fact that Arirang Restaurant’s premises do not have a rail or ramp does not constitute any discrimination unless Mr Ellis proves that he was specifically discriminated against by Arirang Restaurant or the building was constructed in breach of the Standards;
i)pursuant to Part A4 of the Standards Arirang Restaurant’s building is classified as a Class 6 building and relevant sections of the Standards provide that the Standards apply to a “new building” which is defined in s.2.1(3) of the Standards as follows:-
(3) A building is a new building if:
(a) it is not a part of a building; and
(b) either:
(i) an application for approval for its construction is submitted, on or after 1 May 2011, to the competent authority in the State or Territory where the building is located; or
(ii) all of the following apply:
(A)it is constructed for or on behalf of the Crown;
(B)the construction commences on or after 1 May 2011;
(C)no application for approval for the construction is submitted, before 1 May 2011, to the competent authority in the State or Territory where the building is located.
j)since 2014, Mr Ellis has sued more than 14 business owners or companies in similar cases in various courts and except where the cases were closed by consent or are currently pending, he has not succeeded in any case to date;
k)as “proved” in the Steed Email Mr Ellis “is a full time litigator for chance luck as most of business owners may wish to settle these matters as early as possible by paying a small amount of money for commercial reasons as if donating some money to the poor in the community”;
l)Mr Ellis’ tactic appears to have been successful in his claims against Bunnings and McDonalds in 2011, and Ticketek in 2014, where these respondents allegedly paid some money to Mr Ellis in consideration for his withdrawal;
m)the huge difference between Mr Ellis’ claim in the Application (presumably a reference to the claim for $1m compensation) and Mr Ellis’ actual demand (presumably a reference to Mr Ellis’ 10 May 2015 email demanding $20,000) is also indicative that Mr Ellis is misusing the legal system to acquire a windfall;
n)Arirang Restaurant doubts whether Mr Ellis’ disability is such that he could not climb up the stairs of three steps;
o)Mr Ellis’ discriminatory and threatening conduct as seen in Mr Ellis’ emails and a letter published on his Facebook “shows that his claim is not genuine but only for the purpose of extorting money from innocent business owners like … [Arirang Restaurant]”;
p)on 15 June 2015 Mr Ellis published a letter on Facebook where he made heinous statements such as “you Chinese criminals”, “the colour of your Chinese Satan God”, and so on;
q)in his email dated 21 June 2015, Mr Ellis threatened Arirang Restaurant with an “Elder Discrimination” claim if Arirang Restaurant did not agree to his claims;
r)the legal basis of the Court’s power to order that security for costs be provided is in s.80 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and r.21.01 of the Federal Circuit Court Rules (Cth) (“FCC Rules”);
s)the factors to be considered in determining whether to make a security for costs order are dealt with in KP Cable Investments Pty Ltd vs Meltglow Pty Ltd (1995) 56 FCR 189; (1995) 13 ACLC 437 where the factors considered included:
i)whether the applicant’s impecuniosity was caused by the respondent’s conduct the subject of the claim; and
ii)whether an application for security for costs is oppressive in the sense that it is being used to merely deny an impecunious applicant a right to litigate;
t)other factors referred to in other cases include whether:
i)the proceedings raise matters of public interest: Merribee Pastoral Industries v Australia & New Zealand Banking Group Ltd (1998) 193 CLR 502; (1998) 72 ALJR 1055; (1998) 155 ALR 1; (1998) 16 ACLC 1302; (1998) 28 ACSR 103 at [13] per Kirby J;
ii)even if successful in the proceedings, the likely costs order may not be in favour of a winning defendant: Singer v Berghouse (1993) 67 ALJR 708; (1993) 114 ALR 521 at 522 per Gaudron J; and
iii)the applicant is a vexatious litigant, particularly where self-represented: Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310 at 313-314 per Moffit P, Reynolds and Glass JJ; and
u)taking into account all the above factors, Arirang Restaurant considers that:
i)Mr Ellis is a full time vexatious litigant;
ii)Mr Ellis’ prospects of success in this case are very slim;
iii)even if Arirang Restaurant is successful in this case it may not recover any likely costs order;
iv)it believes that there is a public interest to protect innocent defendants like Arirang Restaurant from a full time vexatious litigator like Mr Ellis; and
v)based on Arirang Restaurant’s belief that Mr Ellis has no cause of action against Arirang Restaurant, and concern over the possibility of not recovering the likely costs order from Mr Ellis, the only way to protect Arirang Restaurant’s interests under the circumstance is by an order for security for costs against Mr Ellis. Therefore, the Security for Costs Application is not oppressive to Mr Ellis.
In further submissions made orally at hearing Counsel for Arirang Restaurant:
a)submitted that a disabled person passing Arirang Restaurant could, because the restaurant was open to the street, request assistance from a staff member inside the restaurant;
b)said he was unsure as to whether Arirang Restaurant, as a tenant in the building concerned, had a capacity to make a reasonable adjustment by putting down some form of portable ramp, but said that if a ramp was put down it “will interfere [with] the ordinary people to come in”;
c)submitted that Arirang Restaurant believed that it was a reasonable adjustment to maintain its policy to assist disabled people by reason of staff members being aware of disabled people as they came in;
d)conceded that the Standards did not apply other than to buildings where construction commenced after 1 May 2011; and
e)submitted that Mr Ellis’ failure to respond to correspondence from Arirang Restaurant’s lawyers seeking particulars of the claim meant that he had no cause of action.
Mr Ellis’ submissions
Mr Ellis did not file written submissions as required by the Court’s orders of 14 July 2015. Mr Ellis’ oral submissions at hearing ranged widely, and often irrelevantly, but relevantly he:
a)appeared to concede that he was impecunious;
b)denied that he was endeavouring to extort monies from Arirang Restaurant;
c)submitted that as a disabled person and human rights activist the proceedings were in the public interest because other disabled persons were not able to “fight for themselves”;
d)submitted that he was not a “full time vexatious litigant”; and
e)submitted that other cases in which he was involved are irrelevant to the merits of this case.
Consideration
Section 80 of FCCA Act deals with security for costs. This section provides the Federal Circuit Court with the power to order security for costs, in such amount as the Court may direct, and to subsequently increase, decrease or vary that security, and the power to dismiss or stay proceedings where security ordered to be given is not given, and applies to proceedings in the Federal Circuit Court, other than family law or child support proceedings. Rule 21.01 of the FCC Rules deals with procedural aspects of applications and orders for security for costs.
In Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 at 50,636 per Hill J (“Equity Access”) the Federal Court set out the factors that should be considered on an application for security for costs as follows:
a)the prospects of success of the application;
b)the quantum of risk that a costs order would not be satisfied;
c)whether an order would be oppressive in that it would stifle a reasonable claim;
d)whether any impecuniosity arises out of the conduct complained of;
e)whether there are any aspects of public interest which weigh in the balance against such an order; and
f)whether there are any particular discretionary matters peculiar to the circumstances of the case.
Equity Access has been followed in numerous cases, including Greenwood v World of Maths Pty Ltd [2005] FMCA 1557 at [7]-[8] per Connolly FM; Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors [2010] FMCA 932; (2010) 244 FLR 335 at [96]-[106] per Lucev FM (“Broad Spectrum”); Frigger v Banning [2016] FCA 359 at [59] per Barker J.
It has been observed that it is difficult to assess the prospects of success of some applications at an early stage, particularly where the pleadings (or material before the Court in this case) do not indicate anything other than a legitimate litigious contest: Equity Access at 50,636 per Hill J and Broad Spectrum at [97] per Lucev FM. In Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 (“Dandaven”), (albeit in the context of a claim for summary dismissal based upon the statutory provisions of s.31A of the Federal Court of Australia Act 1976 (Cth)), the Federal Court observed that:
a)“… in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading”: Dandaven at [6(c)] per Gilmour J; and
b)“… if there was a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claims succeeds that there is ‘no reasonable prospect of success’”: Dandaven at [6(e)] per Gilmour J; and
c)“… evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects”: Dandaven at [6(h)] per Gilmour J.
Thus, in determining whether the Application has prospects of success, the Court may look to see whether there are on the face of the material presently before the Court contestable issues of fact or law in relation to which evidence might lend weight.
Whilst the Application is not yet properly particularised, and Mr Ellis has not yet filed any evidence, it is sufficiently clear for a preliminary determination of the prospects of success that Mr Ellis’ claims that he has a disability, also not yet particularised or the subject of any expert evidence, meant that at a time, also not particularised in the Application but on the evidence of the AHRC Complaint filed by Arirang Restaurant seemingly at 7.15pm on Saturday, 2 August 2015, Mr Ellis was unable to access the premises of Arirang Restaurant and avail himself of its facilities, because his disability precluded him from getting up the steps. It can be inferred that Mr Ellis asserts that a non-disabled person would have been able to access the premises using the steps.
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.
The fact that the building in which Arirang Restaurant’s premises are located is a heritage building, and one to which the Standards do not apply, does not, at least on the materials presently before the Court, mean that Arirang Restaurant has a defence to the claims made (so far as they can presently be discerned) in the Application. The raising of the Standards by Arirang Restaurant raises a false issue. That is because the Standards do not preclude findings of disability discrimination in relation to buildings built before the Standards came into effect.
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.
As to the quantum of risk that a costs order would not be satisfied, that must be assessed against what the likely costs of a hearing of the Application would be. Given that the incident itself is likely to be within a very limited factual matrix, but bearing in mind that there may need to be some expert evidence in relation to Mr Ellis’ alleged disability and his capacity to access the premises, and whether or not the building or premises are capable of alteration to facilitate disabled access, it nevertheless is the case that any hearing would be unlikely to be more than one day. In those circumstances, on the relevant costs items under Schedule 1, Part 1 of the FCC Rules, the costs of Arirang Restaurant if successful in defending the Application would be unlikely to be outside of the range of $15,000 to $20,000. At the hearing Mr Ellis indicated that he had expended funds received from settlements referred to in submissions by Arirang Restaurant in at least three cases brought in this Court by Mr Ellis. What that demonstrates, however, is two things: firstly, that arguably some of Mr Ellis’ cases brought in this Court have had sufficient merit to warrant settlement, and resulted in a payment to Mr Ellis, and, secondly, that those cases, by reason of their settlement, are not, at least on their face, vexatious litigation. It also demonstrates that there is some prospect that Mr Ellis might settle some of the other numerous cases referred to by Arirang Restaurant which Mr Ellis has brought in this Court, and if so be in funds to meet any costs order. This possibility must of course be weighed against the fact that, despite requests, Mr Ellis has not disclosed his financial position by way of assets and liabilities to Arirang Restaurant, and there is, therefore, no evidence before the Court as to Mr Ellis’ actual financial position, although given what Mr Ellis submitted at hearing, absent settlement of other cases, it would be reasonable for the Court to infer that he may not be able to meet a costs order of $15,000 to $20,000 if it were to be made.
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.
Mr Ellis’ apparent impecuniosity does not appear to arise out of the conduct complained of in the Application. In any event, impecuniosity alone is no reason to order security for costs: Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd & Ors (1987) 16 FCR 497 at 505 per French J (“Bryan E Fencott”), but a factor to be borne in mind so as not to disadvantage a party in the event that the party successfully defends an application, by putting the party in a position where it is unable to recover costs if the other party is financially insecure: Pacific Acceptance Corporation Ltd v Forsyth (No. 2) [1967] 2 NSWR 402 at 407 per Moffitt J. In Kancheff v Charles Darwin University & Ors [2013] FCCA 1564 (“Kancheff”) in human rights proceedings under the DD Act this Court acknowledged that it was conscious of the fact that making a security for costs order might well shut down the litigation, but further observed that it was not appropriate to allow litigation that had “little apparent merit” to continue in the knowledge that respondents will be put to significant expense which they can never recover: Kancheff at [92]-[93] per Judge Lindsay. The Federal Court dismissed an appeal against the order for security for costs made in Kancheff: Kancheff v Charles Darwin University [2013] FCA 1252 (“Kancheff Appeal”). The present circumstances can be distinguished from Kancheff and Kancheff Appeal on the basis that the Court has not found in this case that the Application has “little apparent merit”, but rather that it is not without prospects of success. It might also be observed that the order for security for costs in Kancheff was one of eleven interlocutory applications that had been dealt with in that matter by this Court: Kancheff at [11] and [89] per Judge Lindsay, noted in Kancheff Appeal at [24] per Besanko J. By contrast, this Application is at an early stage, and has not been the subject of any other interlocutory applications. In the Court’s view, and balancing the various factors, Mr Ellis’ apparent impecuniosity is not a reason, at this early stage, to order security for costs, and to thereby possibly forestall the Application.
In determining what constitutes the public interest the Court has regard to the nature of the public interest:
a)as a term which embraces standards of human conduct;
b)as directing attention to a conclusion or determination which best serves the advancement of the interests or welfare of the public;
c)as being dependent upon particular circumstances in each case for its content, and which in any particular case might be determined by the subject matter, scope and purpose of any statutory enactment being considered;
d)that may involve a balancing of the public interest against private interests or individual interests;
e)as being a concept of wide meaning, not readily limited by precise boundaries, and typically importing a discretionary value judgment to be made by reference to undefined factual matters, albeit that it may be confined by the subject matter, scope and purpose of any statutory enactment; and
f)as not being a homogenous undivided concept, but rather one which can be multi-faceted, and which requires a decision-maker to consider and evaluate the relative weight of the various facets before reaching a final conclusion as to where the public interest resides, thus involving an evaluation of what the relevant facets of the public interest are, and of their competing and comparative importance.
See McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70; (2005) 220 ALR 587; (2005) 88 ALD 12; (2005) 41 AAR 23 at [9]-[15] per Tamberlin J, and the cases there cited.
In Equity Access at 50,637 per Hill J the Federal Court observed that proceedings under the then ss.52 and 82 of the Trade Practices Act 1974 (Cth) (“TP Act”) were not normal inter partes litigation, but rather litigation which utilised the mechanism provided by the legislature for the promotion of fair competition. Therefore, care had to be taken in attributing weight to the public interest, with the weight given to it increasing with the seriousness of the case. In Broad Spectrum, again involving proceedings under the TP Act, but involving provisions of the Trade Practices (Industry Codes – Franchising) Regulations 1998 (Cth) (“TP Industry Codes Regulations”) and a Code under the TP Industry Codes Regulations, this Court observed that a prescribed mandatory Code of Conduct was put in place in relation to the making of franchise agreements, and that an aspect of the case which might warrant proceeding in the public interest, without security for costs being granted, was that it appeared to relate to a franchise to carry on a business involving internet selling which “… lends to the proceedings some element of contemporaneous public interest”: Broad Spectrum at [103] per Lucev FM.
In determining the public interest for the purposes of the DD Act it is necessary to have regard to the objects of s.3 of the DD Act which are follows:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
(i) work, accommodation, education, access to premises, clubs and sport; and
(ii) the provision of goods, facilities, services and land; and
(iii) existing laws; and
(iv) the administration of Commonwealth laws and programs; and
(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.
In the above context the Court considers that it is in the public interest for the Court to, so far as is possible, ensure that a claim which alleges disability discrimination in relation to access to restaurant premises for disabled persons, and arguably, consequently discrimination in relation to the provision of the goods and services within a restaurant, be heard. The objects of the DD Act make it plain that there is a public interest in eliminating discrimination by ensuring that disabled persons have access to premises and that they have the same rights to equality before the law as the rest of the community, and the same fundamental rights as the rest of the community. In that context the Court notes that there do not appear to be any significant cases under the DD Act dealing with access to restaurant premises, and it may therefore be in the public interest that a case which, whatever the outcome, might set a standard, or act as a precedent, or, if Mr Ellis were to be successful in his Application, promote recognition and acceptance of the right of disabled people to have proper access to restaurant premises, proceed to hearing.
Arirang Restaurant argues that it is in the public interest to “protect innocent defendants like Arirang Restaurant from a full time vexatious litigator like Mr Ellis”. Ordinarily, it would be in the public interest to protect both actual and potential litigants and the judicial system from a “full time vexatious litigator”. But in circumstances where:
a)the Court has held that the Application is not without prospects of success;
b)Mr Ellis appears, on materials put before the Court by Arirang Restaurant, to have settled similar claims;
c)there is no evidence that Mr Ellis has been declared a vexatious litigant by any Court of the Commonwealth, a State or a Territory; and
d)by reason of (a), (b) and (c) above, the proceedings cannot meet the test for holding that they are vexatious, in the sense that they have not been instituted with the intention of annoying or embarrassing the person against whom they are brought; or that they are brought for collateral purposes; or are so obviously so untenable or manifestly groundless as to be able to be hopeless, scandalous, disclosing no reasonable cause of action, oppressive, embarrassing, or an abuse of process: Rana v Commonwealth of Australia [2013] FCA 189 at [42] and [43] per Mansfield J; Attorney-General v Wentworth (1988) 14 NSWLR 481.
The Court observes that, to the extent that the submission that Mr Ellis was a vexatious litigant was based upon the content of the Steed Email, the Court has disregarded the views of Ms Steed, given that:
a)Ms Steed is associated with an entity which is presently the subject of similar litigation initiated by Mr Ellis;
b)the comments of Ms Steed are at odds with the Court’s view as to the Application’s prospects of success; and
c)this Application is not vexatious for reasons set out at [26] above.
The Court does not consider it appropriate to take into account the fact that Mr Ellis has a number of cases before the Court, and to deduce therefrom that he is endeavouring to extract settlements from the other parties in those matters or that the Application is otherwise vexatious. Those other cases remain to be determined by the Court, and until determined cannot be said to be without merit merely because there is a significant number of such cases brought by Mr Ellis. The submission that Mr Ellis was doing so and that parties were settling “for commercial reasons as if donating some money to the poor in the community” was not based on any evidence, and insofar as it sought to draw an analogy between settlement and “donating money to the poor in the community”, was a submission unworthy, with respect, of a lawyer.
Taking into account the public interest, and in particular having regard to the scope and purpose of the DD Act, the Court is of the view that the public interest weighs in favour of this Application not being impeded, or stultified, by a security for costs order.
Conclusion and orders
Taken together the fact that the Application is not without prospects of success, that it would be oppressive to stifle the Application by a security for costs order, both generally and because it is in the public interest that the Application proceed, the Court weighing all of the factors, and taking account of the fact that there is a risk that a costs order might not be satisfied if Arirang Restaurant were to be successful in defending the Application, considers that Arirang Restaurant has not made out its case for security for costs against Mr Ellis in relation to the Application, and therefore no security for costs order ought to be made. It follows that the Security for Costs Application must be dismissed.
The matter will be adjourned to a further directions hearing on 12 May 2016 at 9.30am.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 22 April 2016
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