Ellis v Solutions Matchmaking Pty Ltd
[2019] FCCA 1454
•30 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v SOLUTIONS MATCHMAKING PTY LTD & ANOR | [2019] FCCA 1454 |
| Catchwords: PRACTICE AND PROCEDURE – Whether form required to initiate originating application requires that grounds of the application be set out – where form does not require grounds of application to be set out – necessity for further orders to disclose the basis of the claim with sufficient specificity. PRACTICE AND PROCEDURE – Application in a case for originating application to be summarily dismissed – whether misconceived – whether relief sought manifestly unreasonable – apology – prohibition on engaging in certain business activities – compensation – whether no reasonable prospect of success – whether frivolous, vexatious or an abuse of process – whether applicant is estopped from prosecuting the proceedings by reason of a prior claim in the Magistrates Court of Western Australia. PRACTICE AND PROCEDURE – Re-pleading – whether an opportunity to re-plead statement of claim to be afforded to applicant – litigant in person – first statement of claim. ESTOPPEL – Whether applicant is estopped from prosecuting the proceedings by reason of a prior claim in the Magistrates Court of Western Australia – whether same question decided. EVIDENCE – Admissibility – evidence of proceedings in Magistrates Court whether done for the purpose of attempting to negotiate a settlement. WORDS AND PHRASES – “in connection with”. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), ss.46PH, 46PO, 46PR |
| Cases cited: Australian Securities & Investments Commission v Cassimatis & Anor [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 Biovision 2020 Pty Ltd & Anor v CGU Insurance Ltd & Anor [2010] VSC 589 Blair & Ors v Curran & Ors (1939) 62 CLR 464; (1941) ALR (CN) 365; (1941) 35 Tas LR 1; (1941) 13 ALJ 131 Burns v Director General of the Department of Education [2015] FCCA 1769 Carl Zeiss Stiftung v Rayner & Keeler Ltd & Ors (No 2) [1967] 1 AC 853; [1966] 3 WLR 125; [1966] 2 All ER 536 Cooke v Plauen Holdings [2001] FMCA 91 Federal Civil Litigation Precedents (Looseleaf, LexisNexis Butterworths) |
| Applicant: | TROY ELLIS |
| First Respondent: | SOLUTIONS MATCHMAKING PTY LTD |
| Second Respondent: | VIOLA STEED |
| File Number: | PEG 10 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 14 July and 10 August 2015 |
| Date of Last Submission: | 10 August 2015 |
| Delivered at: | Perth |
| Delivered on: | 30 May 2019 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Ms C E Joyce |
| Solicitors for the Respondents: | Eastwood Sweeney |
ORDERS
That the respondents’ application in a case filed on 28 May 2015 be dismissed.
That leave is granted to the applicant to file an amended Statement of Claim by 28 June 2019.
That the matter be adjourned to a directions hearing on a date to be fixed.
Costs, if any, reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 10 of 2015
| TROY ELLIS |
Applicant
And
| SOLUTIONS MATCHMAKING PTY LTD |
First Respondent
| VIOLA STEED |
Second Respondent
REASONS FOR JUDGMENT
Introduction – an application in a case
By an Application in a Case filed on 28 May 2015 the respondents, Solutions Matchmaking Pty Ltd (“Solutions Matchmaking”) and Viola Steed (“Ms Steed”), seek the dismissal of the Originating Application made in these proceedings by Troy Ellis (“Mr Ellis”) alleging disability discrimination by Solutions Matchmaking, a dating service, and its proprietor, Ms Steed.
The Application in a Case
The application in a case seeks the following orders:
1. The proceedings be dismissed pursuant to rule 13 .10 of the Federal Circuit Court Rules 2001 (Cth) on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceedings, the proceedings are frivolous or vexatious and they are an abuse of process.
2. Further or in the alternative, the proceedings be dismissed on the basis of the application of the principle of issue estoppel, by reason of the decision made by the Magistrates Court of Western Australia at Perth in the proceedings numbered PER/CTC/5612/14.
3. The applicant pay the first and second respondents' costs of the proceedings, to be taxed if not agreed.
The Application in a Case is supported by the affidavit of Ms Steed sworn 21 May 2015 (“Ms Steed’s Affidavit”) and an affidavit of Cathryn Emma Joyce sworn 20 July 2015 (“Ms Joyce’s Affidavit”). Ms Joyce is a legal practitioner employed by the lawyers acting for Solutions Matchmaking and Ms Steed.
Mr Ellis’ case
In order to set the Application in a Case in context it is necessary to refer to:
a)the Originating Application made by Mr Ellis on 9 January 2015;
b)a purported Statement of Claim filed on 17 July 2015 (“Statement of Claim”); and
c)an affidavit affirmed by Mr Ellis on 28 April 2015 and filed on 17 July 2015 (“Mr Ellis’ Affidavit”).
Originating Application
In the Originating Application under “Part A – Orders sought” Mr Ellis seeks the following orders:
1.APOLOGY IN WRITING.
2.NO LONGER ALLOWED TO OWN, ACT FOR, MANAGE OR WORK FOR INTRODUCTION AGENCIES OR DATING WEBSITES.
3.$1 MILLION COMPENSATION FROM PUBLIC LIABILITY INSURER – FOR MY INDIGNITY, ABUSE, THE PRINCIPAL, STRESS, EMOTIONAL HARM, STRIPPED HUMAN RIGHTS, TIME, COSTS + ENERGY.
Under “Part B – Grounds of Application” of the Originating Application Mr Ellis says that he is complaining of disability discrimination under the Disability Discrimination Act 1992 (Cth) (“DD Act”), and that “s.46PH(2)” is the section of the DD Act relevant to his claim.
Statement of Claim
In what purports to be a Statement of Claim filed on 17 July 2015, but which is in fact a mix of narrative and submission, Mr Ellis’ Statement of Claim gives an account of events, from which the following relevant points can be distilled:
a)he “joined” Solutions Matchmaking in November 2013, and was asked questions concerning his disability which “may be damaging” to him “as a disabled person”: Statement of Claim at [1];
b)the service provided by Solutions Matchmaking was “shocking” because he alleges he “was placed on a file for the members that are deemed not worthy to meet attractive or average build members” due to his disability, Solutions Matchmaking being aware of his disability from the questions asked when he joined, and in relation to which he says that the members he met were not attractive or average build members: Statement of Claim at [2];
c)he demanded his payment of $395.00 be returned, but had to take court action, which “for such an amount is [an] insult to a disabled pensioner who received no service that could possibly be deemed adequate or without disability discrimination”: Statement of Claim at [3];
d)at a pre-trial conference in the Magistrates Court of Western Australia (“Magistrates Court” and “Magistrates Court Proceedings” respectively) Ms Steed abused him, and “referred to me as a fat and ugly person, told me to get off the pension and get a job” and asserted that she had “no respect for disabled persons”: Statement of Claim at [4]; and
e)Ms Steed succeeded in the Magistrates Court Proceedings as the Magistrate found that “she did not break any contracts”: Statement of Claim at [7], but the Magistrate did not say that Solutions Matchmaking or Ms Steed did not engage in disability discrimination.
Mr Ellis’ Affidavit
Mr Ellis’ Affidavit is in large part objectionable on the basis that it is either irrelevant, argumentative or a statement or statements of unqualified opinion. Nevertheless, what can be discerned from it relevant to the claim seemingly made by Mr Ellis in these proceedings is the following:
a)that Mr Ellis’ “health has been severely damaged by immense emotional stress, due to the humiliating disability discriminating abusive words used by Viola Steed against me” in the Magistrates Court proceedings: Mr Ellis’ Affidavit at [2];
b)the $1 million in compensation claimed by Mr Ellis is on the basis that “Solutions Matchmaking has caused me severe emotional stress and has given me a complex, as a disabled man, to ever feel like dating again”: Mr Ellis’ Affidavit at [4];
c)Mr Ellis has been further damaged mentally and physically by the proceedings in this Court as he suffers from “depression and a physical disability, that can make … [him] subject to shocking falls and muscle strain”: Mr Ellis’ Affidavit at [7]; and
d)the proceedings arise from “Solutions Matchmaking’s 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 emotionally/mentally by their poor business practices”: Mr Ellis’ Affidavit at [8].
Solutions Matchmaking and Ms Steed’s submissions on the Application in a Case in summary
In summary, Solutions Matchmaking and Ms Steed say that the Originating Application ought to be dismissed under r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) because:
a)it is misconceived in relation to the statutory provisions upon which is relies;
b)the relief sought is manifestly unreasonable, and cannot possibly succeed;
c)there is no reasonable prospect of success;
d)it is frivolous, vexatious or an abuse of process; and
e)Mr Ellis is estopped from pursuing these proceedings by reason of the outcome of earlier proceedings in the Magistrates Court Proceedings.
Consideration
Legislative provision relied upon in the Application in a Case
Rule 13.10 of the FCC Rules provides as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Whether the Originating Application is misconceived
Solutions Matchmaking and Ms Steed contend that the Originating Application is misconceived because:
a)Part B, Item 3 of the Originating Application is mere assertion as it alleges “disability discrimination” but includes no material facts on the basis of which any inference could be drawn that such discrimination had occurred, and that the use of the words alone does not in itself furnish any grounds for the allegation made; and
b)Part B, Item 5 of the Originating Application refers to s.46PH(2) of the DD Act, which is a section which does not appear in the DD Act.
The Originating Application is made on the “Application – Human Rights” form (“Application Form”) prescribed by the FCC Rules: FCC Rules, r.41.02A(1) (“Originating Application”). Pursuant to r.41.02A(2) of the FCC Rules, r.4.05 of the FCC Rules does not apply to the Originating Application as the Application Form is made in the approved form. The effect of r.41.02A of the FCC Rules is that no affidavit in support of the Originating Application had to be filed by Mr Ellis.
The Application Form commences at Part A by asking the applicant to set out the final orders sought, which Mr Ellis has set out as set out at [5] above.
Part B of the Application Form is headed “Grounds of Application” and commences by asking:
3. What discrimination are you complaining of?
In response to this question, Mr Ellis has written “Disability discrimination”.
No further detail or particularisation of the alleged disability discrimination is set out, save that in response to question 4 which asks:
Under what Act is the discrimination you are complaining of unlawful?
Mr Ellis has selected the box for the DD Act, and in relation to question 5 which requires the applicant to state all sections of the Act that are relevant to the claim he has written “46PH(2)”.
Part C of the Application Form deals with the applicant’s personal details. Part D of the Application Form seeks to establish the relationship between the applicant and the respondent, in relation to which Mr Ellis has indicated that he is a “Customer of” Solutions Matchmaking. Part E of the Application Form seeks details of any extension of time which is sought. No extension of time is sought here.
Part F of the Application Form deals with required documents and provides that a copy of the complaint to the Australian Human Rights Commission (“AHRC”) “(if available)”, and the notice of termination of complaint given by the President of the AHRC must accompany the application and claim. In response thereto, Mr Ellis has indicated that a copy of the notice of termination of complaint is attached. A copy of the original complaint to the AHRC was not attached to the application form.
The notice of termination of complaint indicates that reasons for the decision to terminate the complaint are at attachment A, and that a copy of the complaint is provided at attachment B. Neither the reasons for the decision to terminate the complaint nor a copy of the complaint were provided with the notice of termination of complaint attached to the Application Form.
The Application Form does not necessarily require an applicant to set out their claim of discrimination in a manner which discloses its substance. Part B – Grounds of Application does not require that an applicant set out the grounds of the application, as none of the questions under Part B – Grounds of Application in the Application Form require an applicant to set out their points of claim or to set out the facts alleged. Rather, an applicant, taking the questions asked under Part B – Grounds of Application literally, can simply state the type of discrimination being complained about (eg disability, in this case – age, sex or race in other cases), tick the relevant box in relation to the relevant Act, and state the sections of that Act relevant to the claim. There is no provision which directs an applicant, or requires an applicant to, set out their points of claim or the alleged facts of their claim (as there is in relation to, for example, the application form which initiates proceedings under the Fair Work Act 2009 (Cth) in this Court).
The consequence of the nature of the Application Form and the lack of a requirement to file an affidavit, means that at a first directions hearing in claims under federal discrimination legislation in this Court, it will often be necessary to direct that an amended Application Form be filed including points of claim, or to direct that a Statement of Claim or points of claim, or affidavit, be filed. In some cases, and this is one, the respondent therefore files an application in a case seeking that the application be struck out because no cause of action is revealed by the content of the Application Form. Whilst the nature of the Application Form, or the absence of an affidavit, might not be a difficulty where lawyers are acting, and annex points of claim or a Statement of Claim, it is a difficulty where a litigant in person does not do so, and where, as here, the Application Form is taken literally. It results in an applicant not disclosing the basis of the claim made with sufficient specificity, and, consequently, in unnecessary applications in a case being made, and unnecessary further directions for applicants to file statements of claim to be made. It would be simpler if the Application Form were disposed with, and if applicants in human rights proceedings were required to file an originating application supported by an affidavit, or a statement of claim.
The equivalent form for the making of human rights applications in the Federal Court has been said to be one that is unlikely to have utility in defining or resolving the controversy raised, and has been held not to be an originating process, a pleading, or particulars of a pleading: Reynolds v JP Morgan Administrative Services Australia Ltd & Anor (No 2) [2011] FCA 489; (2011) 193 FCR 507; (2011) 280 ALR 612 (“Reynolds (No 2)”) at [17] and [24] per Rares J, referred to in Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120 (“Ejueyitsi”) at [6] per Lucev FM, and it cannot therefore be “struck out”.
Even if the Application Form were to have been satisfactorily completed by answering the relevant questions, there will still be a necessity for proper pleadings to be ordered that are to include the identification of the relevant disability, its extent and its relationship to the alleged discrimination: 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”) at [90]-[91] per French and Jacobson JJ; Shurat Hadin, Israel Law Center v Lynch (No 2) [2014] FCA 413 (“Shurat Hadin (No 2)”) at [35]-[36] per Robertson J.
It might be argued that the informality of approach in the Application Form reflects s.46PR of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) which provides as follows:
In proceedings under this Division, the Federal Court and the Federal Circuit Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.
The capacity to act informally and without regard to legal technicalities is not the provision of a licence to disregard legal principles: Zoological Board of Victoria & Ors v Australian Liquor, Hospitality and Miscellaneous Workers Union (1993) 49 IR 41; (1993) 3 CAR 299, IR at 48 per Moore VP; Ejueyitsi at [7] per Lucev FM, nor to disregard the usual principles with respect to proper pleading: Maiocchi v Royal Australian & New Zealand College of Psychiatrists [2014] FCA 301 at [7]-[8] per Robertson J; and does not displace the requirement that the Court must exercise its powers judicially: Walker v State of Victoria [2012] FCAFC 38 (“Walker”) at [81] per Gray J; Ejueyitsi at [7] per Lucev FM. More specifically (and albeit in the context of a claim under the Racial Discrimination Act 1975 (Cth) (“RD Act”) the Federal Court observed in Shurat Hadin (No 2) at [33]-[37] per Robertson J as follows:
33 In my opinion, Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26 at [43] is recent authority for the proposition that in order to make out a case the applicants have to show that the respondent’s act was, or acts were, unlawful because they fell within the sections of the Racial Discrimination Act which the applicants invoked.
34 In the case of s 9, for example, the applicants need to show:
(a) the act or acts the respondent allegedly did;
(b) that each act involved a distinction, exclusion, restriction or preference, based on race, colour, descent or national or ethnic origin; and
(c) that each act had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of a right of theirs, that right being a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
In relation to s 9, it is the first of these matters which is presently under consideration.
35 I do not regard the conclusions in the cases relied on by the applicants as having the consequence that this Court should not require pleadings that adequately state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial. After all, the point of Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245 is that the Commission is not a court, let alone a court with adversarial proceedings, so one would not expect the need for precision to be as great in that forum as it is in the Court. I would also note, as a general observation, that some of the prolongation and complexity of some human rights litigation may be seen to stem from an inadequate identification of the primary facts in the first place.
36 I reject the submission on behalf of the applicants that it is sufficient to establish: a terminated complaint; an affected person; and an allegation of unlawful discrimination, being the matters referred to in s 46PO of the Australian Human Rights Commission Act. I also reject the submission, founded on Hinchliffe v University of Sydney (2004) 186 FLR 376; [2004] FMCA 85 at [94], with reference to the practice in what is now the Federal Circuit Court of Australia, that there is a principle that pleadings in a formal sense should not be required in proceedings under the Australian Human Rights Commission Act.
37 The applicants accepted, in the course of argument, that they had to show an unlawfulness under the Racial Discrimination Act in order to succeed under the cause of action under s 46PO of the Australian Human Rights Commission Act but, while maintaining that the pleadings actually did do this, submitted they did not necessarily have to plead out every element. The applicants maintained that the cause of action was not under the Racial Discrimination Act, and so the Statement of Claim could not be struck out for lack of a cause of action because of any failings in the pleadings in relation to the Racial Discrimination Act. As will become apparent, I do not accept this submission.
Where, as here, a litigant in person has simply inserted into the Application Form the details which that form asks for, it does not appear to the Court that the failure to set out points of claim or material facts can be used as a basis to summarily dismiss the Originating Application. Thus, Mr Ellis by setting out the words “disability discrimination” in Part B, Item 3 of the Originating Application has complied with what is required. The fact that there is no detail, that is no points of claim, no material facts set out, or no particularisation of the alleged claim of disability discrimination, arises because of the nature of the Application Form, and is not the fault of Mr Ellis.
It follows that the manner in which Mr Ellis has completed Part B, Item 3 of the Originating Application provides no basis on which to summarily dismiss the Originating Application.
There is no s.46PH(2) in the DD Act. There is a s.46PH(2) in the AHRC Act which provides for the President of the AHRC to notify complainants in writing where the AHRC has decided to terminate a complaint made to the AHRC, and of the reasons for the decision to terminate that complaint. The Court observes that the notice of termination issued under s.46PH(2) of the AHRC Act is attached to the Application Form.
The inclusion in the Application Form by Mr Ellis of a statutory provision that does not exist, named as s.46PH of the DD Act, does not assist the respondents or the Court to understand his case, and in particular whether it is, for example, a case of direct or indirect discrimination, or both: DD Act, ss.5 and 6; or, for example, disability discrimination in relation to the provision of “services”: DD Act, s.24. It is not for the respondents nor the Court to speculate on these issues. Rather, it is for Mr Ellis to specify them: Gama at [90]-[91] per French and Jacobson JJ; Shurat Hadin (No 2) at [35]-[36] per Robertson J. But nor is it for the Court to dismiss the Originating Application on the basis of a failure by a litigant in person to properly complete a line in the Application Form which is not itself a pleading: Reynolds (No 2) at [17] per Rares J. The somewhat obvious mis-statement of a statutory provision by a litigant in person is a point which ought to have been raised and noted by the respondents (represented by lawyers), but should not have been relied upon by them as the basis, even in small part, for a summary dismissal. The Court ought not to have to deal with legal trifles (as to the history of which see ML Veech and CR Moon, “De Minimis Non Curat Lex”, (1947) 45 Michigan LR 537).
It follows that the manner in which Mr Ellis has completed Part B, Item 5 of the Originating Application provides no basis on which to summarily dismiss the Originating Application.
Whether the relief sought is manifestly unreasonable
In determining whether the relief sought is manifestly unreasonable the Court is entitled to assume, for present purposes, that the entitlement to relief will be established, thereby requiring the determination of relief by way of an appropriate remedy.
Reduced to their essentials, it appears that the relief sought by Mr Ellis, which is set out at [5] above, is as follows:
a)a written apology;
b)an order that the respondents not be allowed to own, act for, manage or work for any introduction agencies or dating websites; and
c)$1,000,000 compensation.
The Court will set out the relevant legislative provision, and then deal with each of the claims for relief in turn.
Section 46PO(4) of the AHRC Act provides that:
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c) an order requiring a respondent to employ or re-employ an applicant;
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.
In Grulke v K C Canvas Pty Ltd [2000] FCA 1415 at [4] per Ryan J the Federal Court held that there was a discretionary power to order an apology to be provided by a respondent in human rights proceedings. In Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 112 FCR 352; [2001] EOC 93-168 at [35] per Kiefel J the Federal Court would have ordered a short apology if the discrimination complaint had been made out, so as to vindicate the applicant in the eyes of her community.
In Cooke v Plauen Holdings [2001] FMCA 91 the applicant was held to be “entitled to a formal apology”, an apology being “frequently worth more to an applicant than money”: at [43] per Driver FM. Where an apology is offered if liability is found, it may be ordered: Escobar v Rainbow Printing Pty Ltd (No 2) [2002] FMCA 122; (2002) 120 IR 84; [2002] EOC 93-229 at [43] per Driver FM. In Campbell v Kirstenfeldt [2008] FMCA 1356; [2008] EOC 93-515 at [40] per Lucev FM it was said, citing Forbes v Commonwealth of Australia [2003] FMCA 140; (2003) 54 AILR 100-123; [2003] EOC 93-288 and Oberoi v Human Rights & Equal Opportunity Commission & Ors [2001] FMCA 34, that:
In relation to that conduct the applicant has sought a written apology. The Court has power to order an apology be made. Mr Kirstenfeldt gave evidence that he was prepared to give an apology to Mrs Campbell. In those circumstances, an apology in the terms sought by Mrs Campbell, which is set out above, is considered by the Court to be appropriate.
Where it is plain that an apology will not come freely from a respondent, a court may decide not to exercise its discretion to order what would be a forced apology: Jones v Toben [2002] FCA 1150; (2002) 71 ALD 629; [2002] EOC 93-247 at [106] per Branson J; Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243; (2002) 71 ALD 567; [2002] EOC 93-238 at [245] per Hely J; Lee v Smith & Ors (No 2) [2007] FMCA 1092; [2007] EOC 93-465 at [16] per Connolly FM.
There is, therefore, no doubt that the Court has discretionary power to order that an apology be made.
The kind of conduct which might warrant the grant of an apology might include the following:
a)virulent abuse related to the discrimination alleged;
b)systemic institutional conduct giving rise to the discrimination alleged; or
c)physical assault,
whereas an apology might not be ordered if an alleged discriminator had endeavoured to grapple with the issues in respect of which the discrimination had been found, and been unable to remedy them, either at all or in a reasonable time: Burns v Director General of the Department of Education [2015] FCCA 1769 at [307] per Judge Lucev.
In this case there is said to be institutional conduct amounting to discrimination, and the question of whether it is systemic, or over a sufficiently long period to warrant an apology, is a matter to be determined at hearing. Likewise, there is an allegation of abuse, and whether that abuse falls within the ambit of discriminatory conduct on the basis of Mr Ellis’ disability is again a matter for determination at hearing, and as to whether the abuse actually occurred, and its extent.
In the circumstances, it cannot be said that the seeking of an apology is a manifestly unreasonable form of relief if Mr Ellis’ claim is made out.
In relation to the relief which seeks orders in relation to ownership, agency management or working for introduction agencies or dating websites the grant of the relief sought is manifestly more difficult. The only basis for making an order along the lines of the relief sought by Mr Ellis in this regard, or an “order to a similar effect”: AHRC Act, s.46PO(4), would be under s.46PO(4)(b) of the AHRC Act as an order requiring Solutions Matchmaking or Ms Steed “to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant”. In that regard a number of observations may be made. The law traditionally sets itself against contracts and remedies which prevent an enterprise from conducting its business, or a person from engaging in business or employment, and will normally only do so where there are specific contractual provisions (either express or implied) which can be relied upon to reasonably justify such an order, or an express statutory provision providing for the ordering of a prohibition on a company or enterprise, or an individual, from carrying on business or employment: Nordenfelt v The Maxim Nordenfelt Guns & Ammunition Company, Limited [1894] AC 535 at 567 and 569 per Lord Macnaghten; Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269; [1967] 2 WLR 871; [1967] 1 All ER 699 at 304 per Lord Morris. Section 46PO(4)(b) of the AHRC Act is not on its face a statutory provision of the relevant kind. Moreover, it is specifically premised on any order being one required “to redress any loss or damage suffered by an applicant”.
An order under s.46PO(4)(b) of the AHRC Act would require the Court to determine that the order sought by Mr Ellis was:
a)reasonable; and
b)one which might redress any loss or damage suffered by Mr Ellis.
The Court notes that in Eatock v Bolt (No 2) [2011] FCA 1180; (2011) 284 ALR 114 (“Eatock (No 2)”) the Federal Court ordered that there should be the publication of corrective notices in relation to a newspaper’s publication of an article contravening s.18C of the RD Act: Eatock (No 2) at [14]-[15] per Bromberg J. The Federal Court observed that part of the purpose of such a corrective notice was “redressing the hurt felt by those injured”: Eatock (No 2) at [15] per Bromberg J.
The Court was not pointed to any circumstances where such an order, or an order to similar effect to that sought by Mr Ellis, had been made under s.46PO(4)(b) (or any other provision) of the AHRC Act.
Depending upon the nature of any conduct constituting unlawful discrimination which might be proven in this case, and noting that the alleged conduct includes an allegation that Mr Ellis was not matched with “attractive or average built members” of Solutions Matchmaking, and that Ms Steed abused him as “a fat and ugly person” whom she told “to get off the pension and get a job”, it might be arguable that Ms Steed might be a person who ought to be prevented from being involved in the management of, or employed by, an introduction agency or dating website, as a means of redressing any hurt felt by Mr Ellis, assuming that “hurt” for these purposes corresponds to “loss and damage” for the purposes of s.46PO(4)(b) of the AHRC Act. Obtaining the relief sought by Mr Ellis in relation to the respondents’ ownership, management or work for introduction agencies or dating web sites faces very significant hurdles, both legally and factually, but it is not beyond the bounds of possibility that, on appropriate evidence, the Court might reach a conclusion that proven conduct would justify such an order, if such an order could be characterised as redress for any loss or damage suffered by Mr Ellis, which again will be difficult to establish. The Court does not however regard the relief sought as manifestly unreasonable, or so obviously futile that it could not be granted in a particular case.
Mr Ellis also seeks $1,000,000 compensation. The compensation is said to be sought from the respondents’ public liability insurer, but any order made in proceedings such as this would ordinarily be made against the respondents.
The respondents argue that this relief is manifestly unreasonable. There is no doubt that it is a significant sum, and more than has been awarded by any court in the past in relation to a breach of federal human rights legislation in Australia. Traditionally, those amounts have been quite modest.
The federal courts have, however, in recent years recognised, at least in the area of sex discrimination and sexual harassment, that substantial amounts of compensation might be awarded in discrimination cases, see, for example:
a)Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92; (2010) 62 AILR 101-252 (“Poniatowska”) where at first instance a total of $433,000 in compensation was awarded for unlawful discrimination under the Sex Discrimination Act 1984 (Cth), a sum which was not disturbed on appeal: see Poniatowska at [74]-[75] and [117]-[119] and [128]-[133] per Stone and Bennett JJ;
b)Lee v Smith &Ors (No 2) [2007] FMCA 1092; [2007] EOC 93-465 where this Court awarded $392,422.32 in a case where the Commonwealth was vicariously liable for the rape, sexual discrimination, harassment and victimisation of a civilian administration officer at a Cairns naval base; and
c)Richardson v Oracle Corporation Australia Pty Ltd & Anor [2014] FCAFC 82; (2014) 223 FCR 334; (2014) 244 IR 277; (2014) 312 ALR 285 (“Richardson”) at [78]-[118] per Kenny J, where a first instance award of $18,000 was increased to $130,000 on appeal, and where one member of the Federal Court observed that:
… it is clear that continued adherence in sex discrimination cases, including sexual harassment cases, to a “range” of damages awards that has not absorbed the increases evident in awards in other fields of litigation has resulted in an award in Ms Richardson’s case that, judged by prevailing community standards, is disproportionately low having regard to the loss and damage she suffered.
Richardson at [117] per Kenny J.
Traditionally, damages for disability discrimination under the DD Act have not been high, and might, in fact, have been disproportionately low: see the list appearing at Part 7.2.5 of Chapter 7 of Federal Discrimination Law (Sydney: Australian Human Rights Commission, 2011), but in Gordon v Commonwealth of Australia [2008] FCA 603; (2008) 60 AILR 100-866; [2008] EOC 93-495 a total of $121,762 in damages was awarded where an offer of employment was withdrawn because of an applicant’s elevated, but treatable, hypertension.
What the above cases do demonstrate however is that it is not beyond the realms of possibility that a successful applicant in a federal discrimination case might be awarded several hundred thousand dollars. Obviously, that depends upon the nature of the evidence as to the loss and damage suffered by an applicant, and in due course, at hearing, one would expect that in a case such as this that would include expert medical evidence. Thus, whilst the amount claimed by Mr Ellis is substantial, it will be a matter for the Court to assess the compensation to be awarded to him based upon the evidence of loss and damage at any final hearing.
In all the above circumstances, the relief sought by way of compensation by Mr Ellis is not manifestly unreasonable.
Whether there is no reasonable prospect of success
Rule 13.10 of the FCC Rules replicates part of s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the authorities on s.17A of the FCCA Act are useful in considering r.13.10 of the FCC Rules, as was observed by the Federal Court in relation to the equivalent provisions in s.31A of the Federal Court of Australia Act 1976 (Cth) (“FC Act”) and r.26.01 of the Federal Court Rules 2011 (Cth) in Manday Investments Pty Ltd v Commonwealth Bank of Australia (No 3) [2012] FCA 751 at [8] per McKerracher J and Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337 at [16] per Collier J respectively.
Albeit that s.17A of the FCCA Act and r.13.10(a) of the FCC Rules might afford slightly different means of summary relief, the High Court’s observations in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233 (“Spencer”) at [58]-[60] per Hayne, Crennan, Kiefel and Bell JJ can nevertheless be applied to the “no reasonable prospect” provisions in r.13.10(a) of the FCC Rules. In Spencer it was observed that:
a)no paraphrase of the expression “no reasonable prospect” can be adopted as a sufficient explanation of its operation, let alone definition of its content: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
b)the expression “no reasonable prospect” cannot usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it can be said that there is “no reasonable prospect”: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
c)the creation of a lexicon of words or phrases intended to capture the operation of the phrase “no reasonable prospect” is to be avoided: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
d)where a plaintiff has no reasonable prospect of prosecuting a proceeding the proceeding could be described as “frivolous”, “untenable”, “groundless” or “faulty”, but these expressions, either alone or in combination, should not be understood as providing a sufficient chart of the metes and bounds of the relevant power, nor can reasonableness be sufficiently or completely illuminated by contrast with a claim which would be frivolous, untenable, groundless or faulty: Spencer at [59] per Hayne, Crennan, Kiefel and Bell JJ;
e)the power may only be exercised if a court is satisfied that the application has no reasonable prospect of success: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ;
f)the power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ; and
g)full weight must be given to the expression as a whole, and it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different procedural regimes: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ.
In relation to the direct equivalent of s.17A of the FCCA Act in s.31A of the FC Act the Federal Court has observed in relation to the phrase “no reasonable prospect of success”, that:
a)a court must be satisfied that the applicant has no reasonable prospect of success;
b)evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects, and in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, a court should be more reluctant to dismiss a proceeding on the face of a pleading;
c)it was not Parliament’s intention to require a court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
d)if there is 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, where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds, that there is “no reasonable prospect of success”;
e)in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party;
f)a summary dismissal proceeding ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
g)the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of the summary dismissal power; and
h)what is required is a prediction of the outcome of a trial on the merits but not an actual adjudication of those merits such that a court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed.
See Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014 at [15] per Judge Lucev (and the various Federal Court authorities there cited).
The Court also observes that:
a)Solutions Matchmaking, in making the summary dismissal application, bears the onus of persuading the Court to make such an order: Australian Securities & Investments Commission v Cassimatis & Anor [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 at [46] per Reeves J;
b)an application for summary dismissal does not involve “mere pleading points” but is concerned with substance, and the Court can consider matters outside the pleadings: Qualify Me Pty Ltd v Get Me Qualified Australia Pty Ltd [2016] FCA 192 (“Qualify Me”) at [24] per Markovic J; Singh v Owners Strata Plan No 11723(No 3) [2012] FCA 1121; (2012) 207 FCR 390 (“Singh (No 3)”) at [39] per Griffiths J;
c)where an applicant fails to identify any valid claim at all in the materials placed before the court a conclusion may be justified that there is not, and never will be, a valid claim to advance to the court. In Dowling v Commonwealth Bank of Australia [2008] FCA 59 (“Dowling”) at [30] per Reeves J the Federal Court said:
30 …However, where the applicant has failed to identify any valid claim in the materials he or she has placed before the court and has failed to provide any factual material that could amount to a valid claim and the court concludes that the party has no reasonable prospects of ever being able to do so, the situation is fundamentally different. The complete absence of an identified and valid claim and, more importantly, the factual materials to found either that valid claim, or some other form of valid claim, along with the likelihood that the applicant has no reasonable prospects of ever being able to produce that material, justifies a conclusion that there is not, and never will be, a valid claim before the court. This obviously cannot be remedied by orders to amend or strike out the pleadings because no amount of pleadings will remedy the fundamental absence of a valid claim. Moreover, the complete absence of a valid claim in this sense ie no identification of a claim, no factual foundation for a claim and no prospect of providing either, must lead inexorably to the conclusion that the applicant has no prospects of prosecuting his or her proceedings to a successful conclusion.
d)the Court must be cautious in summarily dismissing an application involving a litigant in person, and ought to act so as to diminish any disadvantage that a litigant in person suffers when faced with a lawyer in the adversarial process, but do so in a manner which does not confer upon the litigant in person an advantage over their represented opponent: Re Morton; Ex parte Mitchell Products Pty Ltd; Morton v Vouris (1996) 21 ACSR 497 at 513-514 per Sackville J.
The Court notes that:
a)in Walker at [26] per Gray J the Federal Court said, of a disability discrimination claim, that:
There is no attempt to plead as material facts specific acts or omissions of the respondent. As a consequence, the respondent has not been called upon to plead to such allegations, so as to make it clear what is and is not in dispute. For the most part, there is a failure to particularise matters such as dates and the identification of the particular persons responsible. Specific alleged acts or omissions are not related directly to the provisions of the Disability Discrimination Act on which the appellant relies. There are no indications of the persons, or classes of persons, who might be regarded as proper comparators for the purposes of determining whether there has been discrimination by less favourable treatment, or of determining who is able to comply with a particular requirement or condition in respect of which it is alleged that the appellant cannot comply. In short, the amended statement of claim is a litany of complaints, rather than a series of allegations of unlawful discrimination under the Disability Discrimination Act.
b)it is important even where a litigant in person is involved, that the matters required to be established in a disability discrimination claim are, ultimately, comprehensively pleaded in something akin to the proper form. In Modra v Victoria [2012] FCA 240; (2012) 205 FCR 445; (2012) 291 ALR 429 at [32] per Gray J the Federal Court considered a case in which there were deficient pleadings, and stated:
32… A pleading lacking in precision places upon the judge an extra burden of attempting to ascertain whether there are issues on which the party can rely lawfully. There is a risk that, without the assistance of precise pleadings, the judge will fall into error in that respect. An imprecise pleading adds to the expense of a proceeding. The opposing party will have a great deal more work to do than would normally be the case, in determining whether to gather evidence to meet all that is said in the deficient pleading. The trial is likely to be longer than if the claim were pleaded properly. Thus, a failure to plead a claim correctly will impact not only on justice, but also on timeliness, efficiency and expense…
In this case Mr Ellis has put, albeit at a very high level of generality, material before the Court in which he indicates that:
a)he told Solutions Matchmaking that he had a disability, in response to questions asked of him;
b)he alleges that he was not given the opportunity to engage with the full range of possible dating candidates, and that that occurred because of his disability; and
c)he has suffered physical and emotional injury as a consequence of not being introduced to, or been given the opportunity to be introduced to, the full range of dating candidates.
The Court notes that Solutions Matchmaking and Ms Steed were aware that Mr Ellis said he suffered from muscular dystrophy: Ms Steed’s Affidavit at [5], and words to that effect are noted on Mr Ellis’ Solutions Matchmaking profile at Annexure VWS1 of Ms Steed’s Affidavit.
The Court notes that an employee of Solutions Matchmaking told Ms Steed “that her impression of Mr Ellis was that he was unlike any of Solutions’ other male clients and that Solutions would have female clients to match with him”: Ms Steed’s Affidavit at [5], and a considerable part of Ms Steed’s Affidavit is related to the profiles of four women sent to Mr Ellis who might be “potential matches” for him: Ms Steed’s Affidavit at [9] and [11]-[24]. There may doubtless be a factual contest as to whether or not Mr Ellis was given the opportunity to engage with a full range of possible dating candidates, but the existence of a legitimate factual dispute is no reason to conclude that a proceeding has no reasonable prospect of success: see [54(d)] above.
It is fair to observe that most of the elements of a properly constructed disability discrimination statement of claim identified in Walker at [26] per Gray J are not present in Mr Ellis’ Statement of Claim. That, however, does not preclude a statement of claim being drafted in the future which might advance a case with a reasonable prospect of success given the matters referred to at [39], [45] and [57]-[59] above.
The Court also notes that the abuse allegedly directed at Mr Ellis by Ms Steed at the Magistrates Court Proceedings may or may not be a matter to be included in any disability discrimination claim by Mr Ellis. The Court notes that the Magistrates Court Proceedings were dismissed on 15 September 2014, but it is not apparent on what date the Magistrates Court Proceedings actually occurred, nor on what date the AHRC Complaint was made by Mr Ellis, and therefore whether the complaint was made before or after the Magistrates Court Proceedings were dismissed. If the Magistrates Court Proceedings were after the complaint by Mr Ellis was filed with the AHRC then a question may arise (and it is put no higher than that) as to whether Ms Steed has subjected Mr Ellis to “any detriment” on the ground that he had made the complaint, and therefore victimized Mr Ellis for the purposes of s.42(2)(a) of the DD Act.
At hearing the respondents argued that r.43(1) of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) (“Magistrates Court Rules”) might preclude Mr Ellis from raising matters with respect to the alleged abuse by Ms Steed in the Magistrates Court Proceedings. The Magistrates Court Rules provide that the purpose of a pre-trial conference “is to give the parties an opportunity to settle the case”: Magistrates Court Rules, r.40(1), while r.43 of the Magistrates Court Rules provides as follows:
(1) A pre‑trial conference must be conducted before a registrar, in private.
(2) Anything said or done by a party for the purpose of attempting to settle a case at a pre‑trial conference is to be taken to be said or done without prejudice to any evidence or submission that the party —
(a) has adduced or made; or
(b) may subsequently adduce or make,
in or in respect of the proceedings, and the saying or doing of that thing does not disqualify the registrar who conducted the pre‑trial conference from later dealing with the case.
The Court also notes that s.131(1) of the Evidence Act 1995 (Cth) (“Evidence Act”) provides as follows:
(1) Evidence is not to be adduced of:
(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or
(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.
The difficulty with the respondents’ argument is that what is protected is “anything said or done by a party for the purpose of attempting to settle a case”: Magistrates Court Rules, r.43(2), and “a communication … in connection with an attempt to negotiate a settlement of the dispute”: Evidence Act, s.131(1)(a). There must plainly be an argument that what was allegedly said by Ms Steed was not something said for the purpose of attempting to settle the case for the purposes of the Magistrates Court Rules, r.43(2), unless Ms Steed adopted a particularly robust style of attempted dispute resolution in the course of the Magistrates Court Proceedings. That plainly is a factual issue for determination at hearing. Likewise, it can be said that Ms Steed’s alleged comments were not an attempt to negotiate a settlement of the dispute for the purposes of s.131(1)(a) of the Evidence Act, and that would appear to be arguable, unless again Ms Steed could be said to have adopted a particularly robust style of alternative dispute resolution, but again that is a matter to be resolved at hearing. Furthermore, in relation to s.131(1)(a) of the Evidence Act, there may be an argument that even if Ms Steed said what she is alleged to have said by Mr Ellis that evidence might not be adduced of it because it is “in connection with an attempt to negotiate a settlement of the dispute”, the words “in connection with” having a very broad ambit: First Capital Partners Pty Ltd v Sylvatech Ltd [2004] NSWSC 846; (2004) 186 FLR 266 at [26]-[34] per Campbell J; Biovision 2020 Pty Ltd & Anor v CGU Insurance Ltd & Anor [2010] VSC 589 at [38] per Judd J. Ultimately, the issue of whether or not what Ms Steed is alleged to have said was said for the purpose of attempting to settle the case is a matter to be determined on the evidence at hearing. The Court also notes that for the purposes of r.43(2) of the Magistrates Court Rules it appears, on the face of that rule, that it is applicable only to the Magistrates Court Proceedings, and arguably may not operate to preclude evidence of what is said in the Magistrates Court Proceedings in other fora. Whether that is so is again a matter for hearing.
The Originating Application should not, therefore, be summarily dismissed. That is because on the materials presently before the Court there is not a complete absence of a possibly valid claim, and the elements of a possibly arguable disability discrimination case are discernible: Dowling at [30] per Reeves J; Qualify Me at [24] per Markovic J; Singh (No 3) at [39] per Griffiths J.
Frivolous, vexatious or abuse of process
Whether a proceeding is frivolous was addressed in Pickering v Centrelink [2008] FCA 561 at [27] per McKerracher J:
27 …despite whatever attempts are made to discern a cause of action in a case, it is still not arguable, it is frivolous. A matter is also frivolous when it is without substance or groundless or fanciful: Bullen & Leake Precedents of Pleadings (1975) 12th ed, p 145. However such matters will only be struck out when it is so obviously frivolous that to put it forward, would be an abuse of the process of the court: Young v Holloway [1895] P 87...
In respect of vexatious proceedings in Rana v Commonwealth of Australia [2013] FCA 189 at [42]-[43] per Mansfield J the Federal Court stated:
42. Proceedings have been held to be “vexatious” in the past if they are instituted with the intention of annoying or embarrassing the person against whom they are brought; they are brought for collateral purposes, and are not for the purpose of having the court adjudicate on the issues to which they give rise; irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless; or they are scandalous, disclose no reasonable cause of action, are oppressive, are embarrassing, or are an abuse of the process of the court: see generally Attorney-General v Wentworth (1988) 14 NSWLR 481.
43. It has also been pointed out that “vexatiousness” is a quality of the proceeding rather than a litigant’s intention so that the “question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious”: Re Vernazza [1960] 1 QB 197 at 208.
In relation to abuse of process the Court notes that:
a)in Jeffrey & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75; (2009) 83 ALJR 1180; (2009) 260 ALR 34 at [28] per French CJ, Gummow, Hayne and Crennan JJ:
28…It is clear, however, that abuse of process extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment".
b)the Federal Court dealt with abuse of process in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [69] per French J:
69 The public interest considerations underlying the power of courts to stay or dismiss the proceedings for abuse of process extend to preventing the waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. They include the necessity of maintaining confidence in, and respect for, the authority of the courts – Sea Culture International v Scoles [1991] FCA 523; (1991) 32 FCR 275 (at 279 French J); Djaigween v Douglas [1994] FCA 951; (1994) 48 FCR 535 (at 545 Carr J).
It is plain when regard is had, in particular, to the Court’s findings and conclusions with respect to whether there is a reasonable prospect of success (see [57]-[66] above), that Mr Ellis’ claims, and hence the proceedings, cannot be described as frivolous, or the proceedings as vexatious, or an abuse of process. At this stage, properly pleaded, Mr Ellis would appear to have an arguable claim of disability discrimination, and appears to be genuinely aggrieved by his treatment by Solutions Matchmaking and Ms Steed. In those circumstances, the Court does not find that there is any basis for concluding that the present proceedings brought by Mr Ellis are frivolous, vexatious or an abuse of process.
Estoppel
Solutions Matchmaking and Ms Steed argued that the Magistrates Court Proceedings involved the same question to be decided in these proceedings, and therefore created an estoppel which was final, with respect to the same parties, save that Ms Steed was an additional party in these proceedings in relation to whom everything that was done by her was done in her capacity as a director, and therefore an agent, of Solutions Matchmaking, and that in the circumstances the three requirements needed to be satisfied before an issue estoppel arises had been met: Carl Zeiss Stiftung v Rayner & Keeler Ltd & Ors (No 2) [1967] 1 AC 853; [1966] 3 WLR 125; [1966] 2 All ER 536 (“Carl Zeiss Stiftung (No 2)”) at 565 per Lord Guest; Blair & Ors v Curran & Ors (1939) 62 CLR 464; (1941) ALR (CN) 365; (1941) 35 Tas LR 1; (1941) 13 ALJ 131 (“Blair”); Carter v TimeConti Sheffield & Anor [2011] FMCA 29.
Issue estoppel is a judicial determination directly involving an issue of fact or law which has disposed of the issue so that it cannot thereafter be raised by the same parties: Blair. Issue estoppel differs from res judicata in that res judicata relates to the entire claim, rather than just one issue: Hoystead & Ors v Federal Commissioner of Taxation (1925) 37 CLR 290; (1925) 32 ALR 33. Three requirements need to be satisfied before an issue estoppel arises:
a)the same question has been decided;
b)the judicial decision which is said to create the estoppel was final; and
c)the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies: Carl Zeiss Stiftung (No 2) at 565 per Lord Guest.
In order to determine if the same question has been decided it is first necessary to determine the scope of the Magistrates Court Proceedings.
The claim made in the Magistrates Court Proceedings is annexure VWS17 to Ms Steed’s Affidavit. The claims made in the Magistrates Court, operating pursuant to the Magistrates Court (Civil Proceedings) Act 2004 (WA), are on a Form 6, which is described as “Consumer/Trader claim minor case”. Mr Ellis is the claimant, and the defendant is Solutions Matchmaking Pty Ltd. The name “Viola Steed” has been crossed out. Mr Ellis as claimant is described as the “Consumer” and Solutions Matchmaking as defendant is described as the “Trader”. The remedy or relief sought is the payment of an amount of money, which is detailed in the details of claim as a full refund of the $395.00 paid to Solutions Matchmaking, plus other costs. The details of the claim are otherwise said to be as follows:
I signed up with this dating agency in November 2013 and their service has been a disgrace and they did not give me the service as specified by themselves.
Annexure VWS19 to Ms Steed’s Affidavit is a general order made in the Magistrates Court’s civil jurisdiction in the Magistrates Court Proceedings as follows:
1.Judgment in favour of the Defendant against the Claimant whereby the claim is dismissed.
No written reasons for the making of the above order appear in the evidence before the Court.
It is plain from the Form 6 in the Magistrates Court Proceedings that the cause of action alleged was a breach of the contract between Mr Ellis and Solutions Matchmaking, and a claim for damages in relation thereto, being $395.00 which was the Solutions Matchmaking membership fee, made up of a $110.00 administration fee and a $285.00 service fee: Ms Steed’s Affidavit, annexure VWS 18. The claim made was purely contractual. There is no evidence before the Court which would indicate that any issue of disability discrimination arose in the Magistrates Court Proceedings. Moreover, a claim of the type now seemingly made by Mr Ellis, would not have been within the jurisdiction of the Magistrates Court: AHRC Act, s.46PO(1).
The question in these proceedings is whether or not in providing the services under the contract entered into Solutions Matchmaking or Ms Steed discriminated against Mr Ellis on the grounds of his disability. That question is not necessarily answered by reference to the terms of the contract entered into by the parties, or, necessarily, by compliance with the terms of the contract between the parties. That is particularly so where, as here, it appears that Mr Ellis alleges, firstly, that he was placed in a category of members “deemed not worthy to meet attractive or average build members” by reason of his disability, Mr Ellis’ disability having been disclosed to Solutions Matchmaking and noted on his application form as being a form of muscular dystrophy, and, secondly, in relation to the manner in which Solutions Matchmaking, through the agency of Ms Steed as its director, dealt with the Magistrate’s Court Proceedings, and in particular that Mr Ellis was allegedly the subject of abuse by Ms Steed, possibly by reason of his complaint to the AHRC.
In order to determine whether there has been discrimination on the grounds of disability in the provision of a service by Solutions Matchmaking and Ms Steed this Court must look not only at the provisions of the contract, but beyond them, to the manner and form of the service provided. For example, assuming (without deciding) that what is presently alleged is a claim of direct discrimination under s.5 of the DD Act, which if answered in the affirmative, makes it then necessary to determine whether Solutions Matchmaking or Ms Steed did so in one of the circumstances specified in s.24 of the DD Act, and in particular s.24(c) of the DD Act which deals with the manner in which services are made available to a disabled person. The latter is clearly a different issue to that which was determined in the Magistrates Court Proceedings.
The second issue involves what occurred in the Magistrates Court Proceedings themselves in the pre-trial conference. Plainly, what occurred in the pre-trial conference involving Mr Ellis and Solutions Matchmaking, through the agency of Ms Steed, is not a contractual issue under the terms of the contract entered into between Mr Ellis and Solutions Matchmaking. That issue would appear to relate, if anything, to a possible claim of victimisation under s.42 of the DD Act, and is therefore not the contractual issue that was determined in the Magistrates Court Proceedings.
In the circumstances, the Court is not satisfied that the issue determined by the Magistrates Court Proceedings is the same issue as is to be determined in these proceedings. Indeed, they are quite different issues, one being a common law contract claim, the other statutory discrimination or discrimination related claims, the former issue going to whether or not there has been compliance with the terms of the contract, the latter issues going to the manner in which the services provided under the contract were provided to an allegedly disabled person, and as to the treatment of an allegedly disabled person who had made a complaint to the AHRC, with the latter matters not being matters within the jurisdiction of the Magistrates Court in any event. The Court is therefore not satisfied that this is a case of issue estoppel, and in that respect the application in a case is not made out.
Conclusion on application in a case
It follows from the foregoing that the respondents’ application in a case must fail because it has not made out its assertions that:
a)the originating application is misconceived;
b)the relief sought is manifestly unreasonable;
c)there is no reasonable prospect of success;
d)the claims are frivolous, vexatious or an abuse of process; and
e)the claims are issue estopped.
Re-pleading
The Court observes as follows:
a)in Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081 (“Takemoto”) the Federal Court said that whilst “caution should be exercised before striking-out a pleading, even greater caution should be exercised before refusing a party an opportunity to re-plead”: Takemoto at [87] per Flick J, and that a party will normally be permitted to re-plead, particularly where the cause of action concerned is complex and where prior opportunities have not been extended: Takemoto at [89]-[90] per Flick J; and
b)in Nulyarimma & Ors v Thompson & Ors (1999) 96 FCR 153; (1999) 165 ALR 621 at [208] per Merkel J (with whom Wilcox and Whitlam JJ relevantly agreed), the Federal Court cited with approval the following observations made in Thorpe v Commonwealth (No 3) (1997) 71 ALJR 767; (1997) 144 ALR 677 (“Thorpe (No 3)”) at 774-775 per Kirby J:
Even if a party makes good its attack on another's pleading, a court will ordinarily permit the opponent to reframe the pleading so long as it is clear that there is point in doing so and that the further time and opportunity will have utility.
Importantly, the Court notes that Mr Ellis is a litigant in person, that disability discrimination claims can be challenging to draft, even for practitioners, and that in the ordinary course of litigation, even where both parties are professionally represented, it is not unusual for there to be a number of duplications of a statement of claim. Mr Ellis’ Statement of Claim is his first attempt in these proceedings to formulate a statement of claim.
As the Court has also noted above at [19]-[25] in relation to the nature of the Application Form it does not require any form of pleading, any form of setting out of the points of claim, or any setting out of the facts relied upon. In the circumstances, the Court considers that it is appropriate for Mr Ellis to be given a further opportunity to plead his case, and leave will be granted to file an amended Statement of Claim by 28 June 2019. If Mr Ellis can file a properly formulated amended Statement of Claim, the Court and the parties can then move to further programming orders. If Mr Ellis does not file what Solutions Matchmaking or Ms Steed consider to be a properly formulated amended Statement of Claim then no doubt there will be a further application in a case for the matter to be dismissed or to strike out any amended Statement of Claim.
The Court notes that there are numerous resources available to a litigant in person in relation to pleading generally, including the following:
a)available online and accessible to the public is a speech delivered by Justice Katzmann in the College of Law Judges’ Series on 5 November 2015 titled “Pleadings and Case Management in Civil Proceedings in the Federal Court of Australia”: In particular at [43]-[57] the characteristics of a good pleading are set out, none of which ought to be beyond the capacity of a litigant in person who takes the time to understand what their rights are under the cause of action they wish to pursue; and
b)in Federal Civil Litigation Precedents (Looseleaf, LexisNexis Butterworths) (“FCL Precedents”) the “Pleadings” commentary, at which Nathan Moshinsky QC (as Justice Moshinky of the Federal Court then was) is cited as an author, and specifically the Rules of Pleading at [24,070]-[24,100] and the Drafting Considerations at [24,630]-[24,640] provide extensive guidance on the substance of a successful pleading. In the context of applications concerning the AHRC Act the FCL Precedents at [50,600] and [90,100] provide exemplar originating applications and supporting affidavits for such claims, and the specific example set out is a claim under the DD Act, and is a useful guide to a litigant in person on the material facts and claims which might be adapted for use in relation to pleadings proper.
Conclusion and orders
The Court has concluded that:
a)the basis for the summary dismissal of the application pursuant to r.13.10 of the FCC Rules has not been made out by Solutions Matchmaking and Ms Steed; and
b)Mr Ellis ought to be allowed to re-plead the Statement of Claim.
In the circumstances it follows that the Application in a Case filed by Solutions Matchmaking and Ms Steed must be dismissed. The matter will otherwise be adjourned to a future directions hearing for further programming orders. Costs, if any, will be reserved.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 30 May 2019
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