Ellis v Sriv Pty Ltd

[2019] FCCA 898

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELLIS v SRIV PTY LTD [2019] FCCA 898

Catchwords:
HUMAN RIGHTS – Disability discrimination – failure to act in accordance with previous Court Orders – no particulars alleged – application substantially similar to another application – failure – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03B(1)(a)

Cases cited:

Troy Ellis v WSLO Proprietary Limited trading as Wok in a Box – Inglewood.

Applicant: TROY ELLIS

Respondent: SRIV PTY LTD - THE TRUSTEE FOR PENMETSA FAMILY TRUST OPERATING AS EAST VICTORIA PARK NEWSAGENCY & DELI

File Number: MLG 2834 of 2018

Judgment of: Judge McNab

Hearing date: 25 March 2019

Date of Last Submission: 25 March 2019

Delivered at: Melbourne

Delivered on: 25 March 2019

REPRESENTATION

Counsel for the Applicant: In Person by Telephone Link

Counsel for the Respondent: Mr Rouphael by Telephone Link

Solicitors for the Respondent: Rouphael & Associates

ORDERS

1. Pursuant to the Federal Circuit Court Rules 2001 rule.13.03B(1)(a), the application filed 10 September 2019 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2834 of 2018

TROY ELLIS

Applicant

And

SRIV PTY LTD - THE TRUSTEE FOR PENMETSA FAMILY TRUST OPERATING AS EAST VICTORIA PARK NEWSAGENCY & DELI ELLIS

Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

1. The Applicant filed an application before this court on 21 September 2018 against Penmetsa Family Trust operating as the East Victoria Park Newsagency & Deli (‘the Respondent’). By that application, the Applicant seeks final orders being:

   1. An apology in writing.

   2. Explanation of why there is no disabled ramp, with safety rails and adequate sized auto door for a mobility scooter without safety fears of injury.

   3. At least 5 figures in compensation as a start figure.

2. The Applicant seeks interim orders:

   1. To have the case immediately to a trial of the case.

   2. Mediation offer, however payment must at least be 5 figures, or no mediation will take place.

   3. No legal representation for the respondent, as I have no representation.

   4. The first date of a court hearing to be from December 2018 or 2019, as I will not be available due to personal and disability health commitments.

3. The court made orders on 3 December 2018 being:

   Order 1. By 11 January 2019, the Applicant file and serve an affidavit which sets out the facts and circumstances giving rise to his claims, including how any claim for compensation is calculated.

   Order 2. Within 28 days of the Applicant filing and serving on the Respondent’s solicitors documents in accordance with Order 1, the Respondent file and serve any application for disposal of the proceeding together with any supporting affidavit.

   By order (3) the matter was listed for directions on 4 March 2019, but was adjourned today.

4. Mr Ellis appeared by telephone and Mr Rouphael, solicitor, appeared by telephone from Perth. The Respondent had filed an application in a case seeking dismissal of the claim. The central basis is that the Applicant has failed to comply with the Orders of 3 December 2018 in that the Applicant’s affidavit does not give any particular detail of when the discrimination is said to have occurred, the details of the alleged discrimination, and how any claim for compensation is linked to the particular alleged discrimination.

5. The Respondent has also referred to information from the building services of the Town of Victoria Park in relation to building compliance requirements. That evidence is hearsay and cannot be relied upon by the Respondent. I think there is real force in the complaint made by the Respondent in relation to the sufferance of the material filed by the Applicant. I accept that they are a small business operating a newsagency and deli in Victoria Park and I accept that they have been operating as a small family business for 30 years.

6. The Respondent proprietor, Mr Penmetsa, swore an affidavit of 4 February 2019 in which he makes reference to not being able to recollect particulars as to when the alleged discrimination is said to have occurred. The Applicant was asked to comment on the Respondent’s application and he answered with a stream of racist invective directed at the Court and to Mr Rouphael, making threats against both myself, Mr Rouphael and the Respondent business and its proprietors or proprietor.

7. In my view, there has been no substantial compliance with the orders of 3 December 2018. There is no detail provided by the Applicant of when the discrimination is said to have occurred or how the compensation that he seeks is linked to the alleged discrimination. I also note that the affidavit sworn 8 February 2019 filed in response to the orders is in exactly the same terms as that affidavit that was filed in the proceeding of Troy Ellis v WSLO Proprietary Limited trading as Wok in a Box – Inglewood (‘WSLO’) (MLG2830/2018).

8. The only difference was in [5] of his affidavit where, in the present proceeding, he stated the words “access to this business, linked to the franchise group, Lucky 7”. In the affidavit in the WSLO matter, those words were deleted and words “a franchise business” were inserted. Otherwise it is exactly the same affidavit. As I say, there is no detail of the alleged discrimination and the claim for compensation is in the most general terms. In [10] in particular, he states:

   In the past, I have had defendants finalise this very same issue of disability inaccessibility, by making access changes at their business and out of court settlements of up to over $10,000, with one compensation payment being almost $20,000 in one case and another defendant offering me almost $20,000 in out-of-court settlement, which I refused at the time.

9. This affidavit does not comply with the orders of the court and the Respondent is entitled to orders pursuant to rule 13.03B(1)(a) of the Federal Circuit Court Rules 2001.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:  

Date:  8 April 2019