Ellis v Swan Taxis Pty Ltd

Case [2017] FCA 1542

FEDERAL COURT OF AUSTRALIA

Ellis v Swan Taxis Pty Ltd [2017] FCA 1542

Appeal from: Application for extension of time and leave to appeal: Ellis v Swan Taxis Pty Ltd [2017] FCCA 1795
File number: WAD 477 of 2017
Judge: KERR J
Date of judgment: 21 December 2017
Catchwords: PRACTICE AND PROCEDURE – application for extension of time and leave to appeal – whether satisfactory reason given for delay – whether application for leave to appeal has sufficient merits – application dismissed
Legislation:

Australian Human Rights Commission Act 1986 (Cth), s 46PO(3)

Criminal Code Act 1995 (Cth)

Federal Circuit Court of Australia Act 1999 (Cth), s 17A

Federal Court of Australia Act 1976 (Cth), s 24

Federal Court Rules 2011 (Cth), rr 35.13, 35.14

Cases cited:

Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397

Gallo v Dawson [1990] HCA 30; 93 ALR 479

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344

Singh v Minister for Immigration and Border Protection [2017] FCA 150

Date of hearing: 30 November 2017
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 33
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Mr Odirisio
Solicitor for the Respondent: HopgoodGanim Lawyers

ORDERS

WAD 477 of 2017
BETWEEN:

TROY ELLIS

Applicant
AND:

SWAN TAXIS PTY LTD

Respondent

JUDGE:

KERR J

DATE OF ORDER:

21 DECEMBER 2017

THE COURT ORDERS THAT:

1.The application for extension of time and leave to appeal is dismissed.

2.The Applicant pay the Respondent’s costs to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

KERR J:

  1. Mr Ellis commenced proceedings in the Federal Circuit Court of Australia (the Federal Circuit Court) on 10 May 2017, seeking relief under the Disability Discrimination Act 1992 (Cth). The Respondent made an application that the proceedings be summarily dismissed as frivolous and vexatious. Mr Ellis sought leave to appear by telephone at the hearing of that application. His request was denied. Mr Ellis did not appear at the hearing. The proceedings were dismissed on 1 August 2017 pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) and reasons published on 2 August 2017. On 17 September 2017, Mr Ellis filed an application for extension of time and leave to appeal that decision with this Court.

    FEDERAL CIRCUIT COURT PROCEEDINGS

  2. The judgment of Street J sets out the background to the proceedings, and the circumstances of Mr Ellis’ request to appear by phone. Mr Ellis sent a facsimile to the court seeking leave to appear by telephone. That request was refused. Mr Ellis emailed the registry in response on 19 July 2017. That email is reproduced in his Honour’s reasons at [9]:

    You cannot deny me audio link at all and if it is refused and…

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Details
AGLC
Ellis v Swan Taxis Pty Ltd [2017] FCA 1542
Case
[2017] FCA 1542
Decision Date

CaseChat Overview and Summary

In the case of Ellis v Swan Taxis Pty Ltd, the applicant, Mr Ellis, sought an extension of time and leave to appeal a decision made by Street J. The primary issue was whether Mr Ellis had provided a satisfactory reason for the delay in filing his appeal and whether the proposed grounds of appeal had sufficient merits to warrant leave to appeal. The court was required to determine if the application for leave to appeal had any prospect of success and if there was any discernible error of law in the primary decision.

The court found that Mr Ellis's grounds for appeal were not rooted in any legal error made by Street J, but rather expressed dissatisfaction with the outcome and the fact that he was not granted leave to appear via phone. The court noted that Mr Ellis was aware of the requirement to make an application supported by an affidavit if he could not attend in person, but he failed to do so. The fact that he had been granted leave to appear by phone in other proceedings did not obligate Street J to do the same in this case. The court concluded that Mr Ellis's absence from the hearing, which he had been notified about, did not constitute an appealable error. Consequently, the court was not convinced that the proposed appeal had any merit, nor was there any other error of law in the decision.

As a result, the application for extension of time and leave to appeal was dismissed. The court further ordered that Mr Ellis pay the respondent’s costs, which are to be taxed if not agreed. This decision underscores the importance of adhering to procedural requirements and the limited scope for appealing based on dissatisfaction with the outcome.

Orders

Orders of the court

1. The application for extension of time and leave to appeal is dismissed.

2. The Applicant pay the Respondent’s costs to be taxed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The proposed grounds of appeal advanced by Mr Ellis in his application for extension of time and leave to appeal, affidavit, and draft notice of appeal set out at [10] to [12] above, do not allege any legal error in the decision of Street J. Rather, the grounds express a general dissatisfaction with the decision and focus on the fact that Mr Ellis was not granted leave to appear by phone and that the hearing proceeded in his absence.CONCLUSION It is clear from Mr Ellis’ response to emails from court staff that he understood that he would not be allowed to appear by phone unless he made an application supported by an affidavit establishing why he could not attend. Mr Ellis did not file any such affidavit and did not attend the hearing. His absence was a deliberate act. In these proceedings, Mr Ellis did not suggest otherwise. The fact that Mr Ellis had previously been granted leave to appear by phone by a different judge of that court in other proceedings, did not require Street J to also grant leave. The fact that the hearing proceeded in his absence, when he had been notified of the listing and the requirement that he attend in person, does not establish an appealable error in the decision. I am not convinced that, if an extension of time were granted, an application for leave to appeal would have any merit on the basis that Mr Ellis was denied the opportunity to participate in the hearing. Nor is there any other discernible error of law in the decision of Street J. I am not satisfied that the proposed appeal has any prospect of success. The application for extension of time and leave to appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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