Ellis v Swan Taxis Pty Ltd
[2017] FCCA 1795
•2 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v SWAN TAXIS PTY LTD | [2017] FCCA 1795 |
| Catchwords: PRACTICE & PROCEDURE – whether the applicant’s conduct is vexatious –inappropriate communication to the Court – failure to appear – application dismissed for non-appearance. |
| Legislation: Disability Discrimination Act 1992 (Cth) Criminal Code Act 1995 (Cth), s.471.17 of the Schedule. Federal Circuit Court Rules 2001 (Cth), r.13.03C. |
| Cases cited: Collins & Ricardo [2016] FamCA 211 Spencer v Commonwealth (2010) 148 CLR 118 |
| Applicant: | TROY ELLIS |
| Respondent: | SWAN TAXIS PTY LTD |
| File Number: | PEG 252 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 2 August 2017 |
| Date of Last Submission: | 2 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 2 August 2017 |
REPRESENTATION
No appearance by or on behalf of the Applicant.
| Solicitors for the Respondent: | Mr N Odorisio |
ORDERS
The application is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.
The applicant pay the respondent’s costs fixed in the amount of $2,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 252 of 2017
| TROY ELLIS |
Applicant
And
| SWAN TAXIS PTY LTD |
Respondent
REASONS FOR JUDGMENT
(As corrected)
Background
These proceedings were commenced on 10 May 2017 alleging a cause of action under the Disability Discrimination Act 1992 (Cth). The applicant alleges that he suffers from a disability as a result of Becker’s Muscular Dystrophy, depression, PTSD, chronic pain conditions, and general poor health due to disability, falls, and stresses. No medical evidence has been provided by the applicant in support of his alleged disabilities.
The incident the subject of the application commenced in these proceedings is, on its face, trifling and frivolous. The incident involves a communication by the applicant to a female telephonist employed by the respondent, in which the applicant inquired about the cost of a multipurpose taxi and engaged in the conclusion of the conversation in delivering a number of expletives. The telephonist was perfectly polite and her erroneous information did not warrant the applicant’s expletives. The applicant’s conduct in the conversation might, of itself, be something that could have given rise to consideration of a possible offence by the applicant under s.474.17 of the schedule to the Criminal Code Act 1995 (Cth). That provision provides that it is not appropriate to use telephone communication services to engage in menacing, harassing, or offensive phone calls. The transcript supports a characterisation of a harassing and offensive nature in the applicant’s communication to the telephonist.
The applicant’s application seeking relief for alleged disability discrimination is completely wanting in any proper identification of any differential treatment or conduct engaged in allegedly on the basis of the applicant’s disability. The applicant’s complaint, at its highest, concerns alleged erroneous information in respect of the hire cost and rate for use of a multipurpose taxi that can carry wheelchair people. That erroneous information in relation to the pricing did not reflect any conduct revealing any issue of alleged contravention of the Disability Discrimination Act 1992 (Cth).
Further there is an apparent overtone of racism in the substance of the complaint that the applicant made to the Human Rights Commission as a “WHITE DISABLED MAN”. It is extraordinary that a person alleging a disability would then engage in an obvious type of discrimination, albeit racial, when the applicant seeks to advance a complaint of disability discrimination.
Equally troubling is the applicant’s failure to recognise the limited number of multipurpose taxis in his home area that have an important function to perform in relation to people with wheelchair disabilities. The applicant may, in due course, be such a person. For the applicant, in circumstances where he is not in that category to be using one of the limited number of multipurpose taxis, on the material provided to this Court, appears of itself to be an inappropriate use of this type of special resources by the applicant, to the disadvantage of other real disabled people.
Proceedings before the Court
Pursuant to the orders that were made by the Court on 5 July 2017 this matter was fixed today for consideration of whether the proceeding should be dismissed summarily for being frivolous and vexatious. The Court made orders providing the applicant with an opportunity to put on affidavit evidence and submissions. The affidavit evidence and submissions put on by the applicant identified no basis upon which there could be said to be any arguable issue of contravention of the Disability Discrimination Act 1992 (Cth).
Vexatious litigation
The applicant’s submissions and affidavit fall well short of establishing that the proceedings are not frivolous and vexatious. Rather, much to the surprise one might have thought of a person alleging a disability, the applicant engaged in racist rants in the material that he provided to the Court to justify these proceedings as being other than vexatious. That was entirely inappropriate conduct by the applicant. I have taken into account the principles and caution in Spencer v Commonwealth (2010) 148 CLR 118 at [24], [51-60] in considering the application of s.17A of the Federal Circuit Court of Australia Act 1999 (Cth).
The applicant’s application in this Court, on its face, is vexatious and frivolous and is liable to be struck out under s.17A of the Federal Circuit Court of Australia Act 1999 (Cth).
The applicant’s inappropriate conduct
More troubling is, after the commencement of these proceedings, the applicant sought leave by facsimile to appear by telephone. That request was denied. In response to that request, the applicant saw fit to send to the Court a communication to the following effect by email on 19 July 2017 at 20:31 as follows:
“You cannot deny me audio link at all and if it is refused and this case is dismissed i will go the chief justice and the attorney general, citing corruption, contempt of court and perverting the course of justice. All cases at this court have all been audio link regardless of which court location is hearing it, so to do this is a crime and a human rights abuse and i will expect a call on the day regardless of your ideology or communication break down.
You got that Joe.”
That email, on its face, was something that again gives rise to a potential offence by the applicant under s.474.17 of the Schedule to the Criminal Code Act 1995 (Cth). The reference to the threat of an allegation of corruption was a serious and inappropriate step for the applicant to take. It is not appropriate for the applicant to use telecommunication services to send offensive or threatening material. More than that, the email was actually sent to the Court in response to a communication from the Court. The email sent by the applicant was a potential contempt of the Court, and had the applicant attended Court today the Court would have explored with him the conduct that he engaged in and whether the papers should be referred to the DPP or a charge of contempt should be laid.
The Court made an order, on 20 July 2017, in the following terms:
THE COURT ORDERS THAT:
1. The latest request by the applicant to appear by audio link under Division 5, Part 6 of the Federal Circuit Court of Australia Act 1999 (Cth) on 1 August 2017 at 2:15 p.m. (AEST) at the hearing as to whether the proceedings should be summarily dismissed is refused.
2. Any further application for the applicant to appear by audio link must be made by application in a case supported by affidavit evidence.
3. The applicant will be given the opportunity to be heard on 1 August 2017 at 2:15 p.m. (AEST) as to whether he should be charged with contempt by reason of the sending of the email dated 19 July 2017 to the Court in the following terms:
“You cannot deny me audio link at all and if it is refused and this case is dismissed i will go the chief justice and the attorney general, citing corruption, contempt of court and perverting the course of justice. All cases at this court have all been audio link regardless of which court location is hearing it, so to do this is a crime and a human rights abuse and i will expect a call on the day regardless of your ideology or communication break down.
You got that Joe.”
The above email by the applicant, which was not copied to the other side, was in response to an email dated 19 July 2017, sent by the senior associate on behalf of the Court, copied to the representative of the respondent:
“Dear Mr Ellis,
Any communication to the Court must be copied to the opponent.
Your request for telephone attendance is refused.
Kind Regards,
Joe Piercey
Chambers of Judge Street
Federal Circuit Court of Australia
80 William Street, Sydney NSW 2000
Associate Phone (XX) XXXX XXXX
Deputy Associate Phone (XX) XXXX XXXX
Fax: (XX) XXXX XXXX
Email: XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XX”
THE COURT DIRECTS THAT:
1. The applicant file and serve any affidavit evidence and/or written submissions in response to order 3 above on or before 26 July 2017.
2. The applicant to ensure that any further communication to the Court is the subject of identified copying to the representative of the respondent.
By the Court
JUDGE STREET
DATE ENTERED: 21 July 2017
(Contact details redacted)
Following that order, the applicant saw fit to send a further communication, in no way apologising or seeking to retract the inappropriate remarks that he had made on the last occasion, but adding to them. The fact that the applicant may or may not have a disability does not in any way justify the applicant using telecommunication services in potential contravention of the Criminal Code Act 1995 (Cth). The applicant’s conduct in sending the above emails was inappropriate.
In the present case, the Court has considered whether or not the Registrar should be requested to refer the papers to the Director of Public Prosecutions. The Court has taken into account the discussion in this regard that appears in Collins & Ricardo [2016] FamCA 211 at [65] to [72]. The Court has also taken into account the limited and confined nature of the communications referred to in assessing the gravity of the conduct by the applicant. That conduct by the applicant can be described as nuisance type behaviour by the applicant, which if prosecuted may be achieving the applicant’s nuisance purpose if further public cost and expense are incurred in respect of the applicant’s potential offences or possible contempt.
On balance these reasons should be a sufficient warning to the applicant not to engage in communications that are either a potential contempt or a potential offence. The Court has not, at this stage, referred the papers to the DPP and has not at this stage proceeded with the laying of charges for contempt.
Frequent vexatious proceedings
The Court notes that a number of other proceedings have been brought by the applicant which, on their face, also appear to have resulted in dismissals for non-compliance with Court orders. Those proceedings may or may not be ones in respect of which the inference should be drawn that the proceedings were vexatious.
The right to bring proceedings in this Court, like all freedoms and rights, is not absolute but is qualified by the supremacy of the rule of law. The law qualifies the right to bring proceedings in this Court. Where vexatious proceedings are frequently brought by a person orders can be made under Part 6B of the Federal Circuit Court of Australia Act 1999 (Cth). Those orders, if the statutory requirements are satisfied, may require a stay of all existing proceedings of the vexatious litigant without an order granting leave to pursue the same and an order preventing the commencement of further proceedings by the vexatious litigant without leave of a Judge of the Court.
With the bringing of these proceedings, which are frivolous and vexatious, and the other proceedings, which appear to have been taken by the applicant, a Court may soon need to consider whether or not, if further frivolous proceedings are brought, appropriate orders should be made under Part 6B against the applicant so that Court time and resources, as well as the general public, are not inconvenienced by the applicant engaging in vexatious litigation on a repetitive basis.
Failure to appear
The applicant has been called outside the Court and has failed to appear. In these circumstances, it is one where the respondent seeks to have the proceedings dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). The failure to appear by the applicant, in the circumstances of the present case, was deliberate. The applicant’s communications to the Court identified an insistence, on his part, that he be allowed to appear by telephone.
The Court gave the applicant the opportunity to put on an application in proper form, and an affidavit supporting a basis upon which any request for telephone appearance could be justified. No such step was taken by the applicant in response to that opportunity. There is no material before the Court to justify why the applicant has not appeared today other than it being apparent that the applicant made a deliberate decision not to attend.
The Court is satisfied that this is an appropriate case in which to exercise the Court’s powers under r.13.03C(1)(c).
Costs
The respondent has also sought an order for costs, which I am informed, on a party/party basis, are in excess of $2000, and that the first respondent is content with an order in that amount.
Given the steps that have been taken to date, I am satisfied that the first respondent has, in fact, incurred party/party costs in excess of $2000 and I regard the sum sought in that amount by the first respondent as to be reasonable in respect of the unnecessary costs that have been incurred as a result of the applicant bringing these frivolous and vexatious proceedings against the respondent.
Conclusion
The application is dismissed under r.13.03C(1)(C) with costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 9 August 2017
CORRECTIONS
Reasons for Judgment: Page 5, Paragraph 11, removed contact information.
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