Ellis v Target Australia Pty Ltd
[2019] FCCA 1820
•8 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
ELLIS v TARGET AUSTRALIA PTY LTD [2019] FCCA 1820
Catchwords:
HUMAN RIGHTS – Disability discrimination – access to premises – application in a case to dismiss application.
PRACTICE AND PROCEDURE – Application in a case to dismiss application – application for summary dismissal on the basis of no reasonable prospect of success – test for no reasonable prospect of success.
Legislation:
Australian Human Rights Commission Act 1986 (Cth), ss.46PH, 46PO, 46PR
Disability Discrimination Act 1992 (Cth), ss.5, 6
Federal Circuit Court Rules 2001 (Cth), rr.1.05, 1.06, 12.02, 13.10, schs.1, 3
Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Court of Australia Act 1976 (Cth), s.31A
Federal Court Rules 2011 (Cth), rr.16.02, 16.21, 26.01
Sex Discrimination Act 1984 (Cth)
Cases cited:
Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (No.3) [2015] FCA 1436; (2015) 331 ALR 512; (2015) 116 IPR 159
Australian Securities & Investments Commission v Cassimatis & Anor [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623
Betfair Pty Ltd v Racing New South Wales & Anor [2010] FCAFC 133; (2010) 189 FCR 356; (2010) 273 ALR 664
Butorac v WIN Corp Pty Ltd [2009] FCA 1503
C2C Investments Pty Ltd, in the matter of C2C Investments Pty Ltd v Leigh(No 3) [2012] FCA 680
Cantarella Bros Pty Ltd v Du Bois [2016] FCA 1115
Cavill Business Solutions Pty Ltd v Jackson [2005] WASC 138
Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245; (2007) 82 ALJR 303; (2007) 241 ALR 468; [2007] Aust Tort Reports 81-923
Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573; (2000) 105 IR 153
Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8; (2017) 343 ALR 632; (2017) 14 ABC(NS) 516
Dowling v Commonwealth Bank of Australia [2008] FCA 59
Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118; (2010) 63 AILR 101-302
Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92; (2010) 62 AILR 101-252
Fortron Automotive Treatments Pty Ltd v Jones (No.2) [2006] FCA 1401
Fuller v Toms & Ors [2012] FCA 27; (2012) 247 FCR 440Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337
Lee v Smith & Ors (No.2) [2007] FMCA 1092; [2007] EOC 93-465
Lion-Dairy & Drinks Pty Limited v Sinclair Knight Merz Pty Limited [2013] FCA 869Manday Investments Pty Ltd v Commonwealth Bank of Australia (No.3) [2012] FCA 751
Modra v Victoria [2012] FCA 240; (2012) 205 FCR 445; (2012) 291 ALR 429
Myatt v State of Queensland (Queensland Police Service) [2016] FCA 133
Oldham v Capgemini Australia Pty Ltd & Anor [2015] FCA 1149; (2015) 241 FCR 397
Oldham v Capgemini Australia Pty Ltd & Anor (No.2) [2016] FCA 1101
Pickering v Centrelink [2008] FCA 561
Polar Aviation Pty Ltd & Anor v Civil Aviation Safety Authority & Ors [2012] FCAFC 97; (2012) 203 FCR 325
Porter v OAMPS Ltd [2005] FCA 232; (2005) 215 ALR 327
Purvis v New South Wales (Department of Education and Training) & Anor [2003] HCA 62; (2003) 217 CLR 92; (2003) 78 ALJR 1; (2003) 202 ALR 133; (2003) 77 ALD 570
Qualify Me Pty Ltd v Get Me Qualified Australia Pty Ltd [2016] FCA 192
Radisich v McDonald [2010] FCA 762; (2010) 198 IR 24
Rana v Commonwealth of Australia [2013] FCA 189
Re Morton, Ex parte v Mitchell Products Pty Ltd (1996) 21 ACSR 497
Reynolds v JP Morgan Administrative Services Australia Ltd & Anor (No.2) [2011] FCA 489; (2011) 193 FCR 507; (2011) 280 ALR 612
Richardson v Oracle Corporation Australia Pty Ltd & Anor [2014] FCAFC 82; (2014) 223 FCR 334; (2014) 244 IR 277; (2014) 312 ALR 285
Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195
Schokker v Commissioner of Taxation (No.2) [2000] FCA 1734; (2000) 106 FCR 134; (2000) 181 ALR 597
Sims v Jooste QC [2013] WASCA 245
Sims v RM Capital Pty Ltd & Anor [2014] FCCA 2977
Sims v Suda Ltd (No.2) [2015] FCA 281
Singh v Owners Strata Plan No 11723 (No.3) [2012] FCA 1121; (2012) 207 FCR 390
Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233
Takemoto v Moody's Investors Service Pty Limited [2014] FCA 1081
Thorpe v Commonwealth of Australia (No.3) (1997) 71 ALJR 767; (1997) 144 ALR 677
Walker v State of Victoria [2012] FCAFC 38
Zaghloul v Woodside Energy Ltd (No.2) [2013] FCA 947
Applicant: TROY ELLIS
Respondent: TARGET AUSTRALIA PTY LTD
File Number: PEG 462 of 2016
Judgment of: Judge Antoni Lucev
Hearing date: 13 June 2017
Date of Last Submission: 13 June 2017
Delivered at: Perth
Delivered on: 8 July 2019 REPRESENTATION
Applicant: In person by telephone
Counsel for the Respondent: Ms A Rawson
Solicitors for the Respondent: Gary Smith, Barrister and Solicitor ORDERS
(1)That the applicant’s Statement of Claim filed 22 February 2017 be struck out, and be permanently suppressed on the Court file, and not be able to be viewed by any person, save by leave of the Court.
(2)That the respondent’s Application in a Case filed 21 April 2017 for summary dismissal of the proceedings be dismissed.
(3)That the applicant have leave to file and serve a further Statement of Claim by 1 October 2019.
(4)The matter be adjourned to a directions hearing before a Judge of the Court at a time and a date to be fixed.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTHPEG 462 of 2016
TROY ELLIS Applicant
And
TARGET AUSTRALIA PTY LTD Respondent
REASONS FOR JUDGMENT
Introduction
1.By way of an application in a case filed on 21 April 2017 (“Application in a Case”) the respondent, Target Australia Pty Ltd (“Target”), seeks the following relief against the applicant, Mr Troy Ellis (“Mr Ellis”):
a)that the Statement of Claim filed 22 February 2017 (“Statement of Claim”) be struck out and removed from the Court file pursuant to r.16.21 of the Federal Court Rules 2011 (Cth) (“FC Rules”);
b)that the proceedings be summarily dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”); and
c)that Mr Ellis pay costs.
2.The Originating Application (“Originating Application”), filed by Mr Ellis on 4 October 2016, was brought pursuant to the Court’s jurisdiction under s.46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”). In the Originating Application Mr Ellis alleges that Target unlawfully discriminated against him contrary to the Disability Discrimination Act 1992 (Cth) (“DD Act”) as he was unable to safely access and manoeuvre around the Target retail store located in the Westfield Carousel Shopping Centre, Cannington, Western Australia (“Target Carousel Store”) on his mobility scooter or “gopher”.
3.The materials before the Court in respect to the Application in a Case include:
a)the affidavit of Mr Troy Ellis affirmed 22 February 2017 (“Ellis Affidavit”);
b)the Statement of Claim filed 22 February 2017;
c)the affidavit of Gary Thomas Smith sworn 20 April 2017 (“Smith Affidavit”); and
d)written outlines of submissions filed by Target and Mr Ellis on 21 April 2017 and 28 May 2017 respectively.
Background
4.The background to the Originating Application and the Application in a Case is as follows:
a)on 2 January 2016 Mr Ellis alleges he visited the Target Carousel Store and was unable to manoeuvre his gopher around the tight shelves and on many occasions thought the shelves were going to fall on him and he would be injured;
b)Mr Ellis lodged a complaint via email with the Australian Human Rights Commission (“AHRC”) in the evening of 2 January 2016 (“Complaint”);
c)on 24 and 28 March 2016 Mr Ellis again visited the Target Carousel Store in his gopher and alleges he encountered the same issues with access being “dangerous and congested”;
d)by email dated 29 March 2016 Mr Ellis effectively sought to amend his Complaint to the AHRC to include these new incidences of alleged disability discrimination (“Amended Complaint”);
e)from 18 March 2016 to 2 May 2016 the AHRC facilitated conciliation discussions between Mr Ellis and Target, however, on 6 May 2016 the Amended Complaint was terminated pursuant to s.46PH(1)(i) of the AHRC Act on the basis that there was no reasonable prospect of the Amended Complaint being resolved by conciliation;
f)the Originating Application was filed out of time, and on the Originating Application Mr Ellis sought an extension of time while also seeking final relief as follows:
1. APOLOGY IN WRITING.
2. FULL DISABILITY ACCESS AND SAFETY INSTALLED AT PREMISES.
3. $1 MILLION COMPENSATION FROM PUBLIC LIABILITY INSURER, FOR ENDANGERING MY LIFE, STRESS, INDIGNITY, TIME, STRIPPED OF MY HUMAN RIGHTS, AS WELL AS EMOTIONAL HARM.
g)on 13 October 2016 Target filed a Response to the Originating Application opposing all the orders sought by Mr Ellis on the grounds that the Originating Application was out of time and that it fails to adequately state and particularise the alleged discrimination;
h)on 22 February 2017 Mr Ellis, pursuant to orders of the Court, filed his Statement of Claim, which is summarised at [5]-[7] below. The Court notes that the Ellis Affidavit was filed on the same day as the Statement of Claim and contains two paragraphs as follows:
1. STATEMENT OF MY CLAIMS IS CONTINUED ON THE STATEMENT OF CLAIM.
2. MEDICAL REPORTS OF 2016 INCLUDED IN STATEMENT OF MY CLAIM.
i)the Statement of Claim is numbered to commence at paragraph 3 and the Court infers that the two paragraphs of the Ellis Affidavit are intended to be part of the Statement of Claim, however the “MEDICAL REPORTS OF 2016” are not annexed to the Statement of Claim or the Ellis Affidavit and are otherwise not before the Court;
j)on 22 March 2017 Target’s lawyers sent an email to Mr Ellis in the following terms (omitting formalities):
I refer to your Statement of Claim filed at the Federal Circuit Court on 24 February 2017 in the above matter and confirm that I act for Target Australia Pty Ltd.
We consider the Statement of Claim, as it is currently pleaded, has no reasonable prospect of success because it:
1. Fails to identify which section(s) of the Disability Discrimination Act 1992 (Cth) you seek to rely on;
2. fails to identify when the alleged discrimination took place;
3. fails to identify how the alleged discrimination arises out of the alleged disabilities;
4. raises immaterial or irrelevant issues in paragraphs 3, 4, 5, 6 and 8 to 45 inclusive;
5. fails to confine the issues or state the case with any reasonable particularity;
6. is vexatious and an abuse of process.
Having regard to the above, I invite you to amend your Statement of Claim or file a substituted Statement of Claim. In the event that you do not file an amended or substituted Statement of Claim within a reasonable period of time, my client will apply to the Court for orders that your Originating Application to the Federal Circuit Court dated 4 October 2016 be dismissed or your Statement of Claim be struck out.
k)on 28 March 2017 Target’s lawyers sent another email to Mr Ellis indicating that they had not received a response to the 22 March 2017 email, and further indicating that the Ellis Affidavit had not been served on Target. Mr Ellis replied by sharing an electronic file with Target’s lawyers containing the Statement of Claim, but not the Ellis Affidavit, together with the message “there you go dopey!”; and
l)on 21 April 2017 the Application in a Case was filed by Target.
Statement of Claim
5.The Statement of Claim is 11 pages long and comprises 46 numbered paragraphs (albeit that many of the numbered paragraphs do in fact contain more than one paragraph).
6.The only parts of the Statement of Claim which might be relevant to a cause of action under the DD Act are:
a)the first two paragraphs of [7] of the Statement of Claim which provide as follows:
7. The CANNINGTON store of TARGET has an issue with disability access and disability access for people in a disability gopher, as I was, on the many times in question, in a disability gopher, when I twice encountered CHRISTMAS, EASTER & VALENTINES DAY SEASONAL SECTIONS all cluttered walkways, with items on the ground and tight corridors in the store, where I had trouble getting in and out of the store, without banging into the tables and shelves and putting myself in extreme danger, as well as the added and unnecessary stress emotionally and inconveniently.
On one occasion I bashed into a shelf trying to negotiate a tight corner and the heavy shelf wobbled so violently that I had extreme stress and shock fears of it collapsing on me, I then panicked and the gopher went out of control. I could have been killed easily or taken a child with me.
b)at [8] of the Statement of Claim where there is reference to a breach of a duty of care (presumably relying upon what is said at [7] of the Statement of Claim);
c)what might be seen as a claim for relief at [23] of the Statement of Claim insofar as it alludes to a Judge making orders including an apology and compensation;
d)the Statement of Claim at [31] insofar as it asserts that there is not an ability to enter “the premises” which is presumably a reference to the Target Carousel Store;
e)the Statement of Claim at [32] insofar as it refers to damages for emotional harm and suffering; and
f)the references to Mr Ellis’ alleged disabilities, alleged to be Becker’s Muscular Dystrophy, chronic pain and PTSD – depression at [46] of the Statement of Claim,
but noting that even within those paragraphs there is significant material which is irrelevant, and also scandalous (within the meaning of the authorities set out at [27] below).
7.The Statement of Claim is a gallimaufry of allegations, statements and conclusions which are variously irrelevant, scandalous, frivolous and vexatious, and likely to cause prejudice, embarrassment or delay. In that regard, the Court notes that the remaining paragraphs of the Statement of Claim deal, without going through them seriatim, with matters such as:
a)comparisons with other disability discrimination cases Mr Ellis has put before this Court and the AHRC, including references to settlements, mediated and otherwise: at [4]-[6] and [30];
b)a lack of compassion for disabled people by large corporations: at [9];
c)an allegation that Mr Ellis’ complaints have been ignored by Target Australia and “Wesfarmers” (Target Australia seemingly being a part of the Wesfarmers group of companies): at [10] and [25];
d)general comments about retailers, and the opportunity for the taking of a class action by disabled persons against them: at [12];
e)a comparison of Mr Ellis’ personal physical and mental traits and the traits of disabled people, and commentary on how disabled people are treated in the community and in the legal system, and comparing their treatment generally to that of Aboriginal Australians: at [13]-[14], [19]-[26], [28]-[29], [33] and [37]-[40];
f)general comments about the broad nature of Mr Ellis’ claim, and the fact that it is designed to create a precedent for federal disability hatred laws: at [15]-[18]; and
g)references to the laws of the Bible, and Australia’s involvement with the United Nations, and United Nations rulings on the treatment of disabled persons: at [41]-[43].
8.Target’s outline of submissions at [11]-[41] sets out seriatim detailed objections to each of the paragraphs of the Statement of Claim, and in general terms the Court finds that those objections are appropriate and ought to be upheld insofar as they relate to the striking out of the paragraphs of the Statement of Claim. That includes those paragraphs which the Court has identified above as containing some relevant material, but which are, in any event, otherwise not properly pleaded.
Submissions
9.Before dealing with the submissions the Court notes that it accepts that rr.16.02 and 16.21 of the FC Rules have application in these proceedings by reason of r.1.05 and Sch.3, Pt.2 of the FCC Rules: see also [35] below.
Target’s submissions
10.Target contended that the Statement of Claim was in breach of r.16.02 of the FC Rules as:
5.1. it is not divided into consecutively numbered paragraphs, each of which, as far as practicable, deal with a separate matter;
5 .2. it is not as brief as to the nature of the case permits;
5.3. it does not specifically identify the issues that the Applicant wants the Court to resolve;
5.4. it does not state the relevant material facts on which the Applicant relies that are necessary to give the Respondent fair notice of the case to be made against the Respondent at trial;
5.5. the Applicant does not state the provisions of any statute relied upon.
11.Section 46PR of the AHRC Act provides that the Court is not bound by technicalities and legal form. Rule 1.06 of the FCC Rules allows the Court to dispense with any of the FCC Rules to the extent it considers necessary. Having regard to what has been said at [6]-[7] above, and to what is said at [34]-[35] below in relation to substantive issues concerning the Statement of Claim, the Court need not further consider the obvious defects in the formatting and paragraphing of the Statement of Claim.
12.Target, more substantively, contends that the Statement of Claim:
a)contains large volumes of scandalous, frivolous, vexatious, ambiguous material, and other material which is likely to cause prejudice, embarrassment or delay in the proceedings;
b)fails to disclose a reasonable cause of action; and
c)is otherwise an abuse of the process of the Court.
13.Target essentially took issue with each paragraph of the Statement of Claim (except perhaps for [46]) on one of the foregoing bases. It further noted that the Statement of Claim appears to have gone beyond the Amended Complaint made to the AHRC to include allegations about:
a)an incident on Valentine’s Day at the same Target store;
b)defamatory conduct;
c)bullying behaviour;
d)goods and services; and
e)numerous unspecified complaints and issues,
which Target appears to submit are not within the jurisdiction of the Court to consider under s.46PO(3) of the AHRC Act.
14.The submissions made in support of the application for summary dismissal are as follows:
a)the Statement of Claim does not specifically identify the issues that Mr Ellis wants the Court to resolve, nor does it state the relevant material facts on which he relies that are necessary to give fair notice of the case to be made against Target if the matter proceeds to a final hearing;
b)Mr Ellis has failed to state the provisions of any statute he relies upon and the Statement of Claim in the present form is entirely inadequate in that it fails to disclose a reasonable cause of action as it does not identify the alleged discrimination and how the alleged discrimination is based on the alleged disabilities; and
c)the Statement of Claim contains large volumes of scandalous, frivolous, vexatious and ambiguous material, and other material which is likely to cause prejudice, embarrassment or delay, and is otherwise an abuse of the process of the Court.
15.At hearing Target submitted that if the Court was to allow Mr Ellis an opportunity to re-plead his Statement of Claim then a referral for pro-bono assistance may be appropriate as it is otherwise very hard to discern what the case is that Target has to meet.
16.In Target’s submissions at [36] it states as follows:
Paragraph 34 of the SOC refers to a summary dismissal however the Respondent has not made such an Application therefore this paragraph is irrelevant.
To the extent that the content of the Statement of Claim at [34] is relevant, and the Court is of the view that it is not relevant, [36] of Target’s submissions would appear to be meant to say that Target had not made an application in a case for summary dismissal at the time the Statement of Claim was filed.
Mr Ellis’ submissions
17.Mr Ellis filed submissions referring to particular paragraphs of Target’s submissions that he took issue with. Most of those submissions are unhelpful and of no assistance. Rather, they contain unnecessary commentary and offensive remarks expressing Mr Ellis’ disagreement with Target’s submissions. Further, a large amount of Mr Ellis’ submissions repeated verbatim what was already stated in the Statement of Claim.
18.Mr Ellis’ submissions, both oral and written, and his Statement of Claim also indicate that he is under a misconception of the onus of proof in the substantive proceedings. Mr Ellis states:
THERE IS NOT ONE SINGLE THREAD OF EVIDENCE OR FACT TO INDICATE WHY MY CLAIM IS NOT VALID.
At hearing Mr Ellis stated “Target… have not said one thing that actually indicates to me that I’m not right”. It is for Mr Ellis to prove that his claim of disability discrimination is valid, and to procure evidence to support that. It is not for Target to prove that he was not discriminated against, or that the aisle configurations do not discriminate against persons with a disability.
19.It appears from Mr Ellis’ submissions and the Statement of Claim that the issue he has with Target is the lack of “DISABLED ACCESS” in the Cannington store to which he stated “…disabled people were indeed 100% not welcome, as we are not able to able to [sic] enter the premises”. At hearing Mr Ellis confirmed that the Court correctly understood the “gist” of his claim, namely that the extent of Mr Ellis’ disability is such that he is required to use a gopher, and he claims that because of the configuration of the aisles and displays he is unable to manoeuvre or access the aisles safely as an ambulant able-bodied person would be able to do.
20.Mr Ellis made a number of statements at the hearing on matters that were entirely irrelevant to the issues he was required to address. Otherwise, he submitted that:
a)he does not believe doing another statement of claim would be relevant or fair and he does not know why he should even bother saying or doing another thing;
b)whatever Target are asking for in an amended statement of claim, he does not think there is too much more he is going to be able to say or add other than what is already pleaded;
c)there is nothing in the Statement of Claim Mr Ellis finds offensive, it is honest and factual as to what has happened to him and continues to happen to him and therefore should not be struck out or dismissed; and
d)he opposes the summary dismissal application as he believes he does “have reasonable prospects of success, has identified the goods and services and has disclosed a basis for a claim in fact and law”.
Summary dismissal
FCC Rules, r.13.10
21.The Court will first consider if the Originating Application ought to be summarily dismissed pursuant to r.13.10 of the FCC Rules, which 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.
Principles
22.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 FC Rules 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.
23.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.
24.In Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014 at [15] per Judge Lucev (and the Federal Court cases there cited) the Court referred to and summarised the principles the Federal Court had developed in respect of the phrase “no reasonable prospect of success” as follows:
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.
25.With respect to r.13.10(b) of the FCC Rules, a claim will be considered “frivolous” where, notwithstanding attempts being made to discern a cause of action, one is still not arguable or the proceeding is without substance, groundless or fanciful: Pickering v Centrelink [2008] FCA 561 at [27] per McKerracher J. In Rana v Commonwealth of Australia [2013] FCA 189 at [42]-[43] per Mansfield J the Federal Court stated when referring to the term “vexatious”:
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…
26.To satisfy r.13.10(c) of the FCC Rules in relation to abuse of process Target bears a heavy onus. As explained by the Full Court of the Federal Court in Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8; (2017) 343 ALR 632; (2017) 14 ABC(NS) 516 at [66] per Allsop CJ, Dowsett and Besanko JJ:
Abuse of process occurs when a party seeks to use court processes in a way which is likely to cause manifest unfairness to another party or otherwise to bring the administration of justice into disrepute.
27.In relation to scandalous material the Court notes that:
a)in C2C Investments Pty Ltd, in the matter of C2C Investments Pty Ltd v Leigh(No 3) [2012] FCA 680 at [5]-[6] per Yates J the Federal Court provided an overview of the approach to scandalous material:
5. As a matter of general approach, it does not follow from the fact that scandalous matter has been stated in a document or affidavit filed in the Court that the matter is “scandalous” within the meaning of these rules. The question is really whether the scandalous matter, so stated, is extraneous to the issues raised in the proceeding on which evidence could properly be brought forward: Millington v Loring (1880) 6 QBD 190 at 195; 196-197. If the scandalous matter is extraneous, then, generally speaking, it should be struck out: see, for example, Wu v Avin Operations Pty Ltd (No 2) [2006] FCA 792; Kowalski v Mitsubishi Motors Australia Ltd [2009] FCA 1289. This is but an example of the Court remedying an abuse of its process. However, if the matter is relevant to the issues in the proceeding, such that evidence of it could properly be given, it would not normally be struck out under these rules. In short, the statement of a scandalous matter in a filed document or affidavit will not be struck out simply because it is scandalous.
6. Whether a matter can be characterised as scandalous depends on whether it would be perceived to be such according to generally recognised and accepted community standards at the time of the application. The assessment is an objective one. It does not rest simply on the idiosyncratic perceptions of the person challenging the statement of the matter in the document or affidavit. Still less is a matter scandalous because the person objecting to it disagrees with its content.
b)in Cavill Business Solutions Pty Ltd v Jackson [2005] WASC 138 at [25] per Hasluck J the Supreme Court of Western Australia stated:
25. The learned author observes at par 20.19.8 that the mere allegation of a scandalous fact does not render the pleading liable to be struck out as scandalous, for material which is degrading and therefore scandalous will not be struck out unless it is also irrelevant. Scandal consists in the allegation of anything which is unbecoming to the dignity of the Court to hear or is contrary to good manners or which charges some person with a crime not necessary to be shown in the cause: to which may be added that any unnecessary (not relevant to the subject) allegation bearing purely upon the moral character of an individual is also scandalous.
c)in Zaghloul v Woodside Energy Ltd (No.2) [2013] FCA 947 (“Zaghloul (No.2)”) the Federal Court dealt with an application which alleged, in effect, that the applicant’s solicitor and Senior Counsel had been involved in negotiations with the respondent to obtain monies unlawfully, and had used his consent to transfer the proceedings from the Federal Court’s Australian Capital Territory Registry to the Western Australian Registry as a successful bargaining chip, or as the applicant put it, he “was, once again, used as a fair game to extract money from the Respondent”. The Federal Court found the allegation to be unsupported by evidence, and to be scandalous: Zaghloul (No.2) at [52]-[53] per Gilmour J; and
d)in Sims v Suda Ltd (No.2) [2015] FCA 281 (“Sims (No.2)”) the Federal Court found that unsupported and unsupportable allegations of fraud alleged to constitute a criminal offence were made by Mr Sims about two individuals, but which were not capable of constituting either fraud or misleading and deceptive conduct, were scandalous: Sims (No.2) at [44] and [47] per Gilmour J.
28.The Court also observes that:
a)Target, 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 (“Cassimatis”) 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 should, or at least 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:
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.
See also: Butorac v WIN Corp Pty Ltd [2009] FCA 1503 at [19] per Buchanan J; and
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 (1996) 21 ACSR 497 at 513-514 per Sackville J.
29.The Court notes that:
a)in Walker v State of Victoria [2012] FCAFC 38 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…
30.In circumstances where an applicant is seeking to bring a claim under the DD Act, the matters required to be identified by Mr Ellis with sufficient specificity when reading his pleadings as a whole include:
a)identification of Mr Ellis’ alleged disability or disabilities and the extent of such disability or disabilities and the incapacities that arise therefrom;
b)the conduct said to have been committed by Target that constitutes discrimination, and specifically what it is alleged Target has done, when it was done, where it was done, and how each of those factual matters complained about is said to constitute discrimination based upon the alleged disability;
c)whether it is alleged that the discrimination is direct or indirect: DD Act, ss.5 and 6;
d)for the purposes of discrimination under s.5 of the DD Act both the circumstances in which it is said that Mr Ellis has received less favourable treatment and details of the relevant comparators; and
e)for the purposes of discrimination under s.6 of the DD Act, the facts which are said to constitute a requirement or condition applicable to Mr Ellis, which are alleged to not be reasonable.
Myatt v State of Queensland (Queensland Police Service) [2016] FCA 133 at [65] per Rangiah J; Purvis v New South Wales (Department of Education and Training) & Anor [2003] HCA 62; (2003) 217 CLR 92; (2003) 78 ALJR 1; (2003) 202 ALR 133; (2003) 77 ALD 570.
31.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 has various disabilities, namely Becker’s Muscular Dystrophy, chronic pain and a form of depression;
b)there was an access issue, of some kind, when he endeavoured to manoeuvre his gopher in the Target Carousel Store premises in an attempt to access and make use of the facilities in the store to access the goods on display, on various dates in January and March 2016; and
c)he has suffered physical and emotional injury as a consequence of his inability to enter the premises of the Target Carousel Store.
32.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. In that regard:
a)Mr Ellis identifies various alleged disabilities, and at least, (Becker’s Muscular Dystrophy, chronic pain, a form of depression) from which it is alleged he suffers;
b)to some degree the incapacities that Mr Ellis alleges arise from his alleged disabilities are set out, albeit loosely, in the Statement of Claim, including the reference therein to mobility issues that cause him to be prone to falls and “debilitating leg and body weakness”: Statement of Claim at [46], which can be inferred from his use of a gopher. In any event, the extent of any disability relied upon and the incapacities arising might be the subject of further evidence (the Ellis Affidavit appeared to refer to as having annexed “Medical Reports of 2016” but is not in the materials). The Court should be cautious in dismissing an application summarily or striking out pleadings where factual and evidentiary deficiencies can be overcome by ordering the provision of particulars or the furnishing of affidavits, which in this case would have to come from both Mr Ellis and expert medical professionals: Lion-Dairy & Drinks Pty Limited v Sinclair Knight Merz Pty Limited [2013] FCA 869 at [15] per Griffiths J; and
c)the conduct said to constitute the disability discrimination is broadly discernible as an alleged inability to safely manoeuvre and access goods within the Target Carousel Store, albeit the particulars of that conduct are certainly not sufficiently articulated or properly particularised. Mr Ellis appears to point to the AHRC Complaint as evidencing the conduct said to constitute the disability discrimination. The AHRC Complaint generally forms no part of the proceeding in this Court at all, and is neither a form of originating process, pleading nor particulars of a pleading, although its existence is a pre-condition to, and a constraint upon, the Court’s jurisdiction under the AHRC Act, and as such its function within the records of the Court is a limited one: Reynolds v JP Morgan Administrative Services Australia Ltd & Anor (No.2) [2011] FCA 489; (2011) 193 FCR 507; (2011) 280 ALR 612 at [21] and [23]-[24] per Rares J; Oldham v Capgemini Australia Pty Ltd & Anor [2015] FCA 1149; (2015) 241 FCR 397 at [28] per Mortimer J; Oldham v Capgemini Australia Pty Ltd & Anor (No.2) [2016] FCA 1101 at [14] and [27]-[28] per Mortimer J.
33.The Court has concluded that, if Mr Ellis were to properly plead his case he has some prospect of success. The Originating Application ought not, therefore, be summarily dismissed pursuant to r.13.10 of the FCC Rules.
Strike out
34.It is fair to observe that whilst the Originating Application and Statement of Claim seemingly relate to a claim of disability discrimination occurring at the Target Carousel Store, the Statement of Claim presently does not specifically allege what Target has done or not done, does not properly assert how the alleged disability discrimination arises, and does not properly or fully set out or particularise any of the relevant matters in relation thereto. And although damages are ultimately a matter for the Court, there is nothing by way of particulars to justify what is a very significant claim for damages in federal human rights proceedings. 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.
35.The Statement of Claim in its present form is wholly unsatisfactory, and must therefore be struck out in its entirety under r.16.21(1)(a)-(e) of the FC Rules, applied pursuant to r.1.05(2) of the FCC Rules, having regard to the principles with respect to striking out a pleading or portions of a pleading under r.16.21 of the FC Rules as set out in Polar Aviation Pty Ltd & Anor v Civil Aviation Safety Authority & Ors [2012] FCAFC 97; (2012) 203 FCR 325 (“Polar Aviation”) at [43] per Perram, Dodds-Streeton and Griffiths JJ, and Radisich v McDonald [2010] FCA 762; (2010) 198 IR 244 (“Radisich”) at [20] per Gilmour J. Mr Ellis appeared to dispute the application of the FC Rules to these proceedings as indicated by his written submissions in which he wrote “I DISAGREE 100%” when referencing the respective paragraphs of Target’s submissions which explained why the FC Rules were applicable in these circumstances. However, by virtue of r.1.05(2) and sch.3, pt.2, its.8 and 11 of the FCC Rules the provisions of r.16.21 of the FC Rules are applicable in this Court, as has already been observed by the Court: see [9] above.
36.In relation to the question of issues raised by the Statement of Claim being beyond the jurisdiction of the Court to consider because they were not the subject of the Complaint: see [13] above, it is unnecessary to consider that issue in light of the Court’s conclusion at [35] above that the Statement of Claim ought to be struck out in its entirety, save to observe that the proposition put as to want of jurisdiction and the reason therefor is correct: see AHRC Act, s.46PO(3); Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573; (2000) 105 IR 153 at [37]-[41] per Katz J; Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118; (2010) 63 AILR 101-302 at [46]-[48] and [50] per Marshall, Rares and Flick JJ.
Re-pleading
37.In Thorpe v Commonwealth of Australia (No.3) [1997] HCA 21; (1997) 71 ALJR 767; (1997) 144 ALR 677, ALJR at 774-775 per Kirby J it was said that:
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. The guiding principle is doing what is just. Courts, particularly today, strive to uphold efficiency and economy in the disposal of proceedings before them. But they also remember that pleadings are a means to the end of justice according to law. Pleadings are the servants, not the masters of the judicial process.
38.In Takemoto v Moody’s Investors Service Pty Limited [2014] FCA 1081 at [89]-[90] per Flick J the Federal Court emphasised the need for caution before refusing a party to re-plead.
39.The Court thus has the discretion to afford an opportunity to a party whose pleadings have been struck out to re-plead their case. In determining whether any deficiency may be cured by amendment to the pleadings the Court ought to consider the history of the matter, including any previous opportunities to amend the pleadings: Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195 at [59]-[60] per Greenwood J. In Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245; (2007) 82 ALJR 303; (2007) 241 ALR 468; [2007] Aust Tort Reports 81-923 at [99] per Gummow, Hayne and Heydon JJ the High Court referred to the defendant in that matter remaining defiant there was nothing wrong with the pleadings as a factor in refusing leave to re-plead. Where a deficient claim may be cured by leave to re-plead, it will generally not be appropriate to find that a proceeding has no reasonable prospects of success: Betfair Pty Ltd v Racing New South Wales & Anor [2010] FCAFC 133; (2010) 189 FCR 356; (2010) 273 ALR 664 at [55] per Keane CJ, Lander and Buchannan JJ; Fortron Automotive Treatments Pty Ltd v Jones (No.2) [2006] FCA 1401 at [20] per French J.
40.Importantly, however, the pleading deficiencies set out above are remediable, and the Court has no doubt that an arguable claim might be able to be pleaded. Mr Ellis should not be denied the opportunity of making a second attempt to draft a statement of claim in proper form. In that regard, the Court notes that he is a litigant in person, that disability discrimination claims can be difficult 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 iterations of a statement of claim.
41.Mr Ellis was offered an opportunity by Target, in the email dated 22 March 2017, to amend his Statement of Claim. That email specifically detailed the flaws in the Statement of Claim and what Mr Ellis was required to identify. Mr Ellis did not respond to that email. In his written submissions, and at the hearing Mr Ellis maintained the position that none of his Statement of Claim should be struck out. Whilst Mr Ellis did not take advantage of the opportunity to re-plead his Statement of Claim afforded by Target, and submitted that changes to the Statement of Claim were not necessary, the Court has found otherwise, and will order that the Statement of Claim be struck out. The Court is nevertheless of the view, for the reasons set out above: see [31]-[32] above, that there is sufficient material before the Court to warrant granting Mr Ellis leave to re-plead the Statement of Claim, and Mr Ellis is, therefore, to be given an opportunity to re-plead, and leave to file a further Statement of Claim by a specific date.
42.Orders striking out the Statement of Claim pursuant to r.16.21(1)(a)-(e) of the FC Rules and granting leave to Mr Ellis to file a further Statement of Claim by 1 October 2019 will be made accordingly.
Pro bono assistance
43.Target made the sensible suggestion that if Mr Ellis were to be given leave to re-plead then consideration be given to ordering a Registrar of the Court to attempt to arrange pro-bono legal assistance for Mr Ellis. It is fair to observe that if, as here, there may be a genuine cause of action, it may also be that Mr Ellis requires the assistance of a lawyer in the drafting of a further Statement of Claim to facilitate the cause of action being put in proper terms: compare Sims v Jooste QC [2013] WASCA 245 at [19] per Pullin and Newnes JJA; Sims v RM Capital Pty Ltd & Anor [2014] FCCA 2977 at [70] per Judge Lucev. This, however, does not require an order of the Court because the pro bono referral is now an administrative act, and does not require further explanation or an order for referral to be made in these proceedings: Schokker v Commissioner of Taxation (No.2) [2000] FCA 1734; (2000) 106 FCR 134; (2000) 181 ALR 597; Fuller v Toms & Ors [2012] FCA 27; (2012) 247 FCR 440 at [94] per Barker J. The referral process will however take time, as will the process of consultation between Mr Ellis and any lawyer or lawyers who accept the referral. For that reason the Court’s order for the filing of a further Statement of Claim will provide a period of three months before the further Statement of Claim is required to be filed. The Court will therefore request a Registrar of this Court attempt to arrange pro-bono legal assistance for Mr Ellis pursuant to r.12.02 of the FCC Rules (Cth).
Removal of Statement of Claim from Court file
44.Target have also sought that an order that the Statement of Claim be removed from the Court file. The Court can make such an order where the pleadings are struck out pursuant to r.16.21(1) of the FC Rules: FC Rules, r.16.21(2). In particular, Mr Ellis makes a number of spiteful and completely unfounded remarks and allegations against Target and the legal representatives representing Target: see for example, Statement of Claim at [9], [32], [37] and [43]. In circumstances where the Statement of Claim is in fact replete with such scandalous material, it is appropriate for the Court to exercise the power under r.16.21(2) of the FC Rules. However, in circumstances where the matter is entirely managed on the Court’s electronic file management system and there is no hard copy of a document to be removed from the file per se, it is more appropriate to simply order that the document in question be permanently suppressed and not be able to be viewed by any person save by leave of the Court: Cantarella Bros Pty Ltd v Du Bois [2016] FCA 1115 at [12]-[13] per Rares J; Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (No.3) [2015] FCA 1436; (2015) 331 ALR 512; (2015) 116 IPR 159 at [46]-[48] per Perram J.
Further programming
45.Neither party addressed the fact that the Originating Application was filed some 151 days after the date of issue of the Notice of Termination by the AHRC. Mr Ellis had 60 days in which to bring the Originating Application to this Court, and therefore is 91 days out of time: see AHRC Act, s.46PO(2). This is an issue which will need to be addressed sooner rather than later, but given that the merit of the proposed application is one of the factors to be considered in determining whether to grant an extension of time: Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315, FCR at 348-349 per Wilcox J, it is appropriate that Mr Ellis be given an opportunity to file a further Statement of Claim so that the Court is in the best possible position to deal with the extension of time application.
Conclusion and orders
46.The Court has concluded that:
a)the Statement of Claim filed 22 February 2017 is to be struck out, and be permanently suppressed on the Court file, and not be able to be viewed by any person, save by leave of the Court;
b)Target’s Application in a Case filed 21 April 2017 for summary dismissal of the proceedings is to be dismissed;
c)a Registrar of this Court is to attempt to arrange pro-bono legal assistance for Mr Ellis pursuant to r.12.02 of the Federal Circuit Court Rules 2001 (Cth);
d)Mr Ellis is to have leave to file and serve a further Statement of Claim by 1 October 2019 (allowing time for any pro-bono assistance to be rendered); and
e)the matter is to be adjourned to a directions hearing before a Judge of the Court at a time and a date to be fixed,
and, save for the pro-bono referral, there will be orders accordingly.
47.The Court will hear the parties as to costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 8 July 2019
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