Ellis v The Hoyts Corporation Pty Ltd
[2018] FCCA 557
•8 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v THE HOYTS CORPORATION PTY LTD | [2018] FCCA 557 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a case for application to be dismissed or struck out – whether disability identified – whether discrimination alleged because of disability – whether no reasonable prospect of success – whether certain material scandalous, vague, embarrassing or irrelevant. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), s.46PO Disability Discrimination Act 1992 (Cth), ss.5, 6 Evidence Act 1995 (Cth), s.131 Federal Circuit Court of Australia Act 1999 (Cth), s.17A Federal Circuit Court Rules 2001 (Cth), Part 2, Schedule 3, rr.1.05, 12.02, 13.10 Federal Court of Australia Act 1976 (Cth), s.31A Federal Court Rules 2011 (Cth), rr.16.21, 26.01 Occupational Safety & Health Act 1984 (WA) |
| Cases cited: Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (No 3) [2015] FCA 1436; (2015) 331 ALR 512; (2015) 116 IPR 159 C2C Investments Pty Ltd, in the matter of C2C Investments Pty Ltd v Leigh (No. 3) [2012] FCA 680 Ellis v Kanyana Wildlife Rehabilitation Centre Inc [2017] FCCA 89 Ellis v Left Bank Holdings [2017] FCCA 90 Justice Katzmann (“Pleadings and Case Management in Civil Proceedings in the Federal Court of Australia” College of Law Judges’ Series, 5 November 2015) |
| Applicant: | TROY ELLIS |
| Respondent: | THE HOYTS CORPORATION PTY LTD |
| File Number: | PEG 596 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 15 June 2017 |
| Date of Last Submission: | 15 June 2017 |
| Delivered at: | Perth |
| Delivered on: | 8 March 2018 |
REPRESENTATION
| For the Applicant: | In person (by telephone) |
| Counsel for the Respondent: | Mr B Winburn-Clarke |
| Solicitors for the Respondent: | SRB Legal |
ORDERS
That the applicant’s Statement of Claim filed 26 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.
That the applicant have leave to file and serve an Amended Statement of Claim by 24 April 2018.
In relation to costs:
(a)the respondent to file and serve submissions on costs (including as to quantum) by 16 March 2018;
(b)the applicant to file and serve submissions on costs (including as to quantum) by 23 March 2018,
with the submissions to be limited to a maximum of 5 pages, and the issue to be determined on the papers.
Matter otherwise be adjourned to 3.00pm on 27 April 2018 for further directions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 596 of 2015
| TROY ELLIS |
Applicant
And
| THE HOYTS CORPORATION PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction – application in a case
An application in a case was filed by the respondent, The Hoyts Corporation Pty Ltd (“Hoyts Corporation”), on 7 April 2017.
The application in a case relates to the Statement of Claim filed 26 February 2017 by the applicant, Troy Ellis (“Mr Ellis”) which purports to allege disability discrimination by Hoyts Corporation against Mr Ellis, in relation to the provision of cinema seating. The application in a case seeks orders that:
a)the Statement of Claim be struck out pursuant to r.16.21 of the Federal Court Rules 2011 (Cth) (“FC Rules”), and be removed from the Court file;
b)pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) the proceedings be dismissed to the extent that they do not relate to the size of the seating in the disabled area of the relevant cinema; and
c)Mr Ellis pay Hoyts Corporation’s costs of this application, and the reserved costs of Court attendances on 1 April 2016, 26 August 2016, 24 January 2017 and 31 March 2017.
Background
Given the nature of the orders sought as to both strike-out and dismissal, and as to costs, it is necessary to set out the background of the matter, particularly as it led to the filing of the Statement of Claim.
The originating application in these proceedings was filed on 29 December 2015 and alleged disability discrimination. The allegation of disability discrimination was wholly unparticularised, but as this Court has observed on previous occasions that may occur (and particularly does so in cases involving litigants in person) because the Application – Human Rights form used in this Court does not necessarily require an applicant to set out their claim of discrimination in a manner which discloses its substance: Ellis v Kanyana Wildlife Rehabilitation Centre Inc [2017] FCCA 89 at [11]-[12] per Judge Lucev (“Kanyana Wildlife (No 1)”); Ellis v Left Bank Holdings [2017] FCCA 90 at [4] per Judge Lucev.
Hoyts Corporation filed a Response on 10 February 2016 opposing the orders sought, and seeking that the application be dismissed, and indicating in its grounds of opposition that the application did not identify which section of the Disability Discrimination Act 1992 (Cth) (“DD Act”) Mr Ellis alleged had been infringed by Hoyts Corporation and that Hoyts Corporation was unable to identify the legal basis for the disability discrimination allegedly suffered by Mr Ellis until particulars of the claim were provided.
At a first directions hearing before the Court on 9 March 2016 Mr Ellis (who appeared in person by telephone) sought that the matter be referred to mediation. Hoyts Corporation opposed that on the basis that the time and effort to do so was unnecessary in circumstances where they proposed to file an application in a case to strike-out or dismiss the application. The Court made orders that:
1. The respondent file any application in a case and any supporting affidavit and outline of submissions by 30 March 2016.
2. The applicant file and serve an outline of submissions in response by 23 April 2016.
3. The matter be listed for hearing 12 May 2016 at 9.30am.
On 1 April 2016 a consent order was entered in the following terms:
1. The orders made on 9 March 2016 be vacated.
2. The hearing listed for 12 May 2016 at 9:30am be vacated.
3. The matter be referred for mediation before a Registrar of this Court on a date to be fixed by that Registrar.
4. If the matter does not resolve at mediation then there be a further directions hearing at a time to be fixed by the Court.
5. There be liberty to apply.
6. Costs be reserved.
On 19 April 2016 Mr Ellis filed a document headed Submitting notice on a Federal Court of Australia form, annexed to which was a typewritten “Outline of Submissions” (“Mr Ellis’ April 2016 Outline of Submissions”). Paragraphs 1 to 9 set out various alleged factual matters which might constitute disability discrimination under the DD Act if properly pleaded and particularised. Thereafter, Mr Ellis’ April 2016 Outline of Submissions descends into a diatribe against “lawyers”, “corporates” and “foreign owned Australian” companies” and compares the treatment of disabled Australians to that of Aboriginal Australians: Mr Ellis’ April 2016 Outline of Submissions at [10]-[14]. Several pages of submissions in a similar vein follow, and whilst it is unnecessary to set out those submissions in detail or to summarise the whole of them, the following paragraphs give some indication of the nature of those submissions:
CORPORATES ARE TERRORISTS, WHO CAUSE THEIR OWN BRAND OF INHUMANITY AND VIOLENCE HOWEVER THEY USE LEGITIMATE EXCUSES AS THEY DO IT WITH A MONTE BLANC AND NOT AN AK-47. THE CORPORATES ARE SPENDING A FORTUNE ON LAWYERS FIGHTING ME, INSTEAD OF SOLVING THE DISABLED DISCRIMINATION ISSUES,HUMAN RIGHTS ABUSE, TAX RIGHT OFFS, CHARITY, SPONSORSHIP AND COMMUNITY SERVICE BUDGETS. HOW IS WHAT I AM ASKING FOR ANY DIFFERENT TO THESE VAST COSTS?
THE POLITICIANS, CORPORATES AND LAWYERS DO WHAT THEY WANT TO OUR SACRED EARTH AND HUMANITY.YOU ONLY HAVE TO PICK UP A PAPER TO SEE THE POVERTY AND BRUTALITY TOWARDS ALL DISABLED PERSONS IN AUSTRALIA EVERY DAY, WITH AUSTRALIA NOW REGARDED AS ONE OF THE WORST HUMAN RIGHTS ABUSIVE NATIONS ON EARTH.
CORPORATES USE VAST WEALTH, LEGAL AND POLITICAL PROTECTION AND REFUSE TO TAKE INITIATIVE AND DO WHAT IS RIGHT AND NEEDED FOR ALL OF HUMANITY, NOT JUST FOR OBSCENE SLEAZE, EGOS AND WEALTH. THE INTERNATIONAL AND AUSTRALIAN DISABILITY DISCRIMINATION LAWS ARE A DEPLORABLE JOKE.THE CODES AND LAWS DO NOT SAY THAT IT IS ILLEGAL OR LEGAL, MORAL OR IMMORAL, ETHICAL OR UNETHICAL TO DO BETTER.
THE DISABLED ARE SIMPLY A NUISANCE TO THE LAWYERS, CORPORATES, GOVERNMENTS AND THE TAKE IT FOR GRANTED ABLE BODIED. THEIR APPROACH TO US IS NO DIFFERENT TO WHAT NAZI GERMANY WANTED TO DO WITH US.WE DIE DUE TO LACK OF CARE AND NEGLECT, SUICIDE AND VIOLENCE,SO WHAT IS THE DIFFERENCE IN TORTURE, EXPERIMENTATION, MURDER, OR GENOCIDE TACTICS?
THESE CORPORATES AND LAWYERS ARE NOT ACTING LIKE TRUE BLUE AUSTRALIANS. THEY ARE AN INSULT TO OUR ABORIGINAL ELDERS, ANCESTORS, PIONEERS, EXPLORERS AND OUR EUROPEAN, INTELLECTUAL, FOREFATHERS; OUR PAST FIGHTS FOR LIBERTY AND FREEDOM, FAIR GO, OR TO GIVE A DAMN ABOUT THE BATTLERS AND THE PERSECUTED. THEY ARE A DEMONIC FRONT AND AN AFRONT TO THE U.N., THE CROWN, MAGNA CARTA AND THE CONSTITUTION.
DISABLED AUSTRALIANS ARE BEING TREATED WITH THE SAME UNEDUCATED, IGNORANT CONTEMPT AND GENOCIDE AS ABORIGINALS. THIS IS NOT MUCH DIFFERENT TO THE SAME VILIFICATION, DISCRIMINATION, HATE CRIMES, GENOCIDE AND HOLOCAUST DENIALS AND ANTl-SEMITICISM THAT THE JEWISH PEOPLE SUFFER.
MY CLAIMS ARE BASED ON NO MORE THAN COWARDLY HUMAN RIGHTS VIOLATORS, WHO PICK ON THOSE THEY SEEM TO THINK CANNOT FIGHT BACK AGAINST EVIL AND COWARDICE. THESE LEGAL VILLIANS ARE TRYING TO STATE IAM ABUSIVE AND MAD. THEY PLACE MONEY BEFORE MORALS, PROFITS BEFORE PRINCIPALS AND NO HUMILITY FOR HUMANITY.
Mediation was conducted by a Registrar of this Court on 21 June 2016. That mediation did not resolve the matter.
The parties next appeared before the Court on 26 August 2016 (with Mr Ellis appearing by telephone). During the course of that directions hearing reference was made to Mr Ellis’ April 2016 Outline of Submissions, and the fact that Mr Ellis had not, at that stage, been directed to file a Statement of Claim. The Court, having regard to the judgment of the Full Court of the Federal Court in Hinton v Alpha Westmead Private Hospital [2016] FCAFC 107; (2016) 242 FCR 1; (2016) 344 ALR 253; (2016) 152 ALD 444, suggested that Mr Ellis ought to be given a proper opportunity to prepare and file a properly particularised Statement of Claim. The Court discussed with the parties, and, ultimately with Mr Ellis’ agreement, determined to order that Mr Ellis be referred to a Registrar of the Court for referral for possible legal assistance pursuant to r.12.02 of the FCC Rules. The Court therefore made orders in the following terms:
1. The applicant be referred to a Registrar of this Court for legal assistance and a referral certificate issue pursuant to r.12.02 of the Federal Circuit Court Rules 2001 (Cth).
2. The applicant file and serve a particularised statement of claim by 26 November 2016.
3. Costs of today be reserved.
It would appear no pro-bono assistance was able to be obtained. Mr Ellis did not comply with Order 2 of the Court’s Orders of 26 August 2016, but when the matter came before the Court again on 24 January 2017 the time for compliance with Order 2 of the Court’s Orders of 26 August 2016 was extended to 3 March 2017, and the matter was adjourned to a further directions hearing on 31 March 2017.
On 26 February 2017 Mr Ellis filed the Statement of Claim.
Principles
Before considering the terms of the Statement of Claim and whether the application should be summarily dismissed or the Statement of Claim, or parts thereof, struck-out, it is convenient to set out the principles with respect to summary dismissal and strike-out.
Dismissal
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.
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 at [58]-[60] per Hayne, Crennan, Kiefel and Bell JJ (“Spencer”) 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 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 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 George v Fletcher (Trustee) [2010] FCAFC 53 at [75] per Ryan and Logan JJ; White Industries Aust Ltd & Anor v Federal Commissioner of Taxation & Anor [2007] FCA 511; (2007) 160 FCR 298 at [50]-[54] per Lindgren J; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; (2008) 167 FCR 372; (2008) 246 ALR 465; (2008) 103 ALD 505; [2008] ATPR 42-231 at [45] per Rares J; Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15] per Heerey J; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] per Gilmour J.
The Court’s power to summarily dismiss an application is discretionary, and Hoyts Corporation in making the summary dismissal application, bears the onus of persuading the Court to make such an order: Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 at [46] per Reeve J.
Strike out
Rule 16.21 of the FC Rules provides as follows:
(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
(2) A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1) (a), (b) or (c) or is otherwise an abuse of the process of the Court.
Rule 1.05 of the FCC Rules provides that it is intended the practice and procedure of this Court be governed principally by those rules, however if the rules are insufficient or inappropriate the Court may apply the FC Rules.
Schedule 3, Part 2 of the FCC Rules, sets out the provisions of the FC Rules which apply to “general Federal Law proceedings”.
“General Federal Law proceedings” are defined in the FCC Rules to include proceedings other than family law or child support proceedings. Mr Ellis’ application is a general Federal Law proceeding.
By virtue of the above, r.16.21 of the FC Rules relating to pleadings and striking out of pleadings is applicable to these proceedings.
As to whether a matter in a pleading is scandalous the Court observes as follows:
a)in Cavill Business Solutions Pty Ltd v Jackson [2005] WASC 138 at [25] per Hasluck J it was said 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.
b)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 observed as follows:
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.
c)in Zaghloul v Woodside Energy Ltd (No 2) [2013] FCA 947 (“Zaghloul”) 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 at [52]-[53] per Gilmour J;
d)in Sims v Suda Ltd (No 2) [2015] FCA 281 (“Sims (No 2)-2015”) the Federal Court found that unsupported and unsupportable allegations of fraud alleged to constitute a criminal offence made by Mr Sims in relation to both the late Mr Jooste and Mr Stewart in those proceedings, and which were not capable of constituting either fraud or misleading and deceptive conduct, were scandalous: Sims (No 2)-2015 at [44] and [47] per Gilmour J; and
e)in MacPherson v Kerr, Ex Parte Lewis (1893) 19 VLR 23 (“McPherson”) the deponent of an affidavit believed that a contract would have been cancelled if a solicitor had not interfered and commenced litigation not in the interests of the solicitor’s client. The allegation was one which did not have anything to do with the proceedings. The Victorian Supreme Court struck the allegation out as scandalous observing that:
… it is about as serious a charge (not criminal) as could well be made against a solicitor to say that he commenced litigation not in the interests of his client.
McPherson at [25] per Hodges J.
It is relevant to observe that a pleading will be embarrassing where the pleading is “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him”: Priest v New South Wales [2006] NSWSC 12 at [34] per Johnson J.
Summary Dismissal
It is convenient for the Court to first deal with the issue of whether the application ought to be summarily dismissed.
The matters required to be established by Mr Ellis in this disability discrimination claim include:
a)identification of Mr Ellis’ alleged disability or disabilities;
b)the extent of Mr Ellis’ disability or disabilities and the incapacities that arise therefrom;
c)the conduct said to have been committed by Hoyts Corporation that constitutes discrimination, and specifically what it is alleged Hoyts Corporation 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
d)whether it is alleged that the discrimination is direct or indirect: DD Act, ss.5 and 6;
e)for the purposes of discrimination under s.5 of the DD Act:
i)the circumstances in which it is said that Mr Ellis has received less favourable treatment; and
ii)details of the relevant comparators; and
f)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.
Each of the above matters must be set out with a sufficient degree of specificity so that Hoyts Corporation knows the case which it is required to meet.
The current Statement of Claim as filed on 26 February 2017, is entirely inadequate and should be struck out.
The application should not, however, be summarily dismissed because, albeit dimly, the elements of a possibly arguable disability discrimination case can be discerned from the materials presently before the Court. In that regard:
a)various disabilities (Becker’s Muscular Dystrophy, chronic pain and depression) from which it is alleged Mr Ellis suffers are set out in the Statement of Claim at [59];
b)to some degree the incapacities that Mr Ellis alleges arise from his alleged disabilities are set out at [59] in the Statement of Claim, and ultimately the extent of any disability relied upon and the incapacities that arise from that ought no doubt be sought to be proved by expert evidence from specialist medical practitioners and allied health professionals (but the nature of Mr Ellis’ disabilities and the extent of any incapacity arising from them is not proven by the existing medical documents which have been included in the existing Statement of Claim, and which appear wholly unrelated to the circumstances of this application as it involves Hoyts Corporation);
c)the conduct said to constitute the disability discrimination and which was the subject of the complaint to the Australian Human Rights Commission (“AHRC”), namely the adequacy of disabled seating inside one of the cinemas at the Hoyts Corporation cinema complex at Carousel Shopping Centre, Cannington, might also be discernible on a detailed examination of the present voluminous materials, but not in a manner sufficiently articulated or properly particularised;
d)Hoyts Corporation concedes in its submissions that the first four bullet points of the Statement of Claim at [9] potentially set out conduct which, if properly particularised, might give rise to disability discrimination, and that the last two bullet points, although mixed with irrelevant and scandalous material, might support a claim of disability discrimination or victimisation arising therefrom; and
e)it is fair to observe that apart from the fact that the application seemingly relates to a claim of disability discrimination occurring at the Hoyts Corporation cinema complex at the Cannington Carousel Shopping Centre, and seemingly relates to access to disability seating (although an enormous number of other matters are raised) the Statement of Claim presently does not specifically allege what Hoyts Corporation has done, does not allege at all when it was done, does not properly assert how those matters necessarily constitute disability discrimination, and in particular does not allege whether the discrimination is direct or indirect for the purposes of ss.5 and 6 of the DD Act, or any of the relevant matters in relation thereto. Each of these matters are matters which if properly attended to and properly pleaded, might give rise to an arguable case of disability discrimination. Although the Statement of Claim in its present form is, for reasons set with more particularity below, and some of which are adverted to above, wholly unsatisfactory and therefore to be struck out, Mr Ellis should not be denied the opportunity of making a second attempt to draft a proper Statement of Claim. 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.
In that regard, 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…
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.
In Federal Civil Litigation Precedents (LexisNexis Butterworths) (“FCL Precedents”) “Pleadings” commentary authored by Nathan Moshinsky QC, (as Justice Moshinky then was) 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 Australian Human Rights Commission Act 1986 (Cth) (“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.
For the reasons set out above, the Court will not summarily dismiss Mr Ellis’s application.
Strike out
Outline
The Statement of Claim (“SOC”) comprised 32 pages, but in outline is as follows:
a)seven pages of medical documentation dating from September and October 2016, and seemingly directed to Mr Ellis’s capacity to attend Court dates in the latter half of 2016, but which is irrelevant for present purposes, and will be struck out on that basis; and
b)25 pages which are headed up as “STATEMENT OF CLAIM”, and which are divided into paragraphs 3-60, plus a “STATEMENT OF DISABILITY DISCRIMINATION CLAIMS” (“Statement”) which is not paragraphed, but which occupies most of the final five pages of the SOC.
The paragraphs of the SOC and the Statement are dealt with below.
Paragraph 3
At [3] Mr Ellis states that ignorance is not a defence to the DD Act. Paragraph 3 of the SOC is irrelevant as ignorance is not pleaded as a defence, and will therefore be stuck out.
Paragraphs 4-5
At [4]-[5] there are allegations of victimisation (“with flim flam and hearsay comments of lame ass crap”), slander and defamation by Hoyts Corporation, and reference to other matters Mr Ellis has pursued against other corporate entities for disability discrimination, and assertions that Hoyts Corporation’s management were advised many times about the “issues in question” prior to Mr Ellis lodging a formal complaint with the AHRC.
The first two paragraphs of paragraph 4 of the SOC are irrelevant. The third sentence in paragraph 4 relates to Target, an unrelated and irrelevant matter.
In paragraph 5 of the SOC reference is made to resolutions “out of court” which are probably confidential and ought not be contained within the document: Evidence Act 1995 (Cth), s.131
Paragraph 5 otherwise refers to unspecified advice provided "many times, about many of the same issues" which is vague, and does not notify Hoyts Corporation of the case it is required to meet.
Paragraphs 4 and 5 of the SOC will be struck out.
Paragraphs 6-8
At [6]-[8] there are a number of assertions concerning Hoyts Corporation and its lawyers alleging “a secretive perjury and harassment campaign toward me and behind this courts back”, and referring to the lawyers as “psychopathic with narcissistic power, evil vulgarity and obscene egocentricity”.
Paragraphs 6, 7 and 8 of the SOC are irrelevant and plainly scandalous and will be struck out.
Paragraphs 9-10
At [9]-[10] Mr Ellis alleges disability access failures, which are also alleged to be breaches of the “OH&S & DUTY OF CARE”, including the following:
a)a key was required to operate the lift to go to the Lux Cinemas, which had to be requested and waiting for it restricted Mr Ellis freedom of movement and dignity;
b)disabled seating at Lux Cinema, and the Xtreme Cinema, is “tacked on” outside of the cinema so as to “separate” the disabled, and are cheaply and badly designed to the extent he could not get up and the Fire Department was called to assist him causing extreme stress and indignity, and were positioned with poor vision of the screen requiring Mr Ellis and his mother to stretch to see over the bar in front of the seats;
c)no apology or refund was offered by the manager for the trauma, anger, sadness, embarrassment, physical and emotional exhaustion and stress suffered by having his dignity stripped at the cinema;
d)falls risks are increased as there is food and drink spilt over the floors and access to disabled toilets is hindered as the doors are heavy and staff do not respond when able bodied use these;
e)no seats are provided outside the cinema entrances for patrons to sit on, and staff do not accommodate those whom are disabled by allowing them into the cinema to sit “and if I try to go and sit down in the cinema, some little asshole, a quarter of my age barks to tell me to get out because they are cleaning up”; and
f)at [9] Mr Ellis refers to being victimised by Hoyts Corporation saying that:
· Banning me for life, from all HOYTS CINEMAS is for nothing more than VICTIMISATION, DISABILITY HATRED, hearsay, political correctness gone mad and a belief I am not a good person, or fit to be in their garbage, overpriced and dirty cinemas, for mainly working class skanks, bogans and peasants and troublemakers, however the disabled guy must go only though.
· I was extremely stressed and treated like garbage by HOYTS CORPORATION, so whatever lame ass crap I’m accused of saying or doing by DISGUSTING [name of person and law firm deleted], is nothing more than an EVIL LITTLE WITCH HUNT, ORCHESTRATED BY CRIMINAL CHILDREN FROM [name of law firm deleted] and the HOYTS CORPORATION, to set me up and discredit me and my claim.
In regard to the SOC at [9]:
a)there is conduct referred to (particularly in the first four bullet points) which might, if properly particularised, give rise to a claim of discrimination, but which, as presently pleaded are devoid of proper particulars;
b)claims of victimisation might be able to be made if the Hoyts Corporation has victimised Mr Ellis in relation to his disability claims, but the pleading is presently so vague and ambiguous, and the claims made so mixed with other irrelevant, embarrassing and scandalous material, as to render the pleading embarrassing, and liable to be struck out; and
c)the majority of the SOC at [9] is irrelevant, in that it does not relate to the subject matter of the disability claimed before the AHRC (for example, the fact that food and drink refuse is spilt in the foyer and is a slip and fall risk, or that Hoyts Corporation did not allegedly have enough staff to properly clean the cinemas) and should therefore be struck out.
Paragraph 10 of the SOC alleges a breach of a duty of care owed pursuant, presumably, to the Occupational Safety & Health Act 1984 (WA), which is vague and ambiguous and should be struck out.
Paragraphs 9 and 10 of the Statement of Claim as presently pleaded will be struck out.
Paragraphs 11-17
At [11]-[15] there are allegations of a lack of care, compassion, ignorance of disabled persons and hardship that Mr Ellis faces as a paying guest of Hoyts Corporation, it being alleged Hoyts Corporation is more concerned with costs and profits than the physical and emotional wellbeing of disabled patrons, and asserts at [15] that “their arrogantly hateful and violently abuse hearts” having “destroyed my ability to function when corporations make me feel like trash physically and then emotionally”.
At [16]-[17] Mr Ellis makes assertions concerning his character and previous matters attesting “I DO NOT LIE OR FUDGE MANY FACTS USUALLY” and says that these proceedings are about setting a precedent and not “THAT I AM JUST AFTER HOYTS FOR NO VALID REASON.”
Paragraph 17 of the SOC also refers to confidential settlements, which is improper, and those details should be struck out.
Paragraphs 11-17 inclusive of the SOC are irrelevant and embarrassing and will be struck out.
Paragraphs 18-19
At [18]-[19] Mr Ellis rejects any suggestion of cost orders against him and says he is constantly subject to the same unequal treatment which is confirmed by his previous cases and other reports and media outlets, the latter being irrelevant.
Paragraph 19 of the SOC alleges there is no disabled access, which appears to be both vague and inconsistent with the allegation at paragraph 9 of the SOC that a lift has been provided.
Paragraphs 18 and 19 of the SOC are vague, irrelevant and embarrassing and will be struck out.
Paragraphs 20-28
At [20]-[28] there are a number of general statements as to alleged systemic abuse, harsh treatment and discrimination of disabled persons and Aboriginal Australians within Australian society, and it is contended that this cannot be understood unless it has been lived with. At [28] Mr Ellis concludes that the able bodied can go about knowing the duty of care and public liability will protect them, however disabled persons are pushed aside due to no access or access at risk of injury.
There is a general assertion running through paragraphs [24]-[28] of there being no entry or access for disabled persons, but this is not related specifically to the Hoyts Corporation cinema complex at the Carousel Shopping Centre, but put in general terms relating to disabled Australians, or declaratory terms in statements or phrases such as:
THERE IS NO DISABLED ACCESS KNOWLEDGE AT THE ORGANISATION. THE WORD IS DISCRIMINATION. INACCESSIBLE AND GROUNDS – LOOK IT UP IF THE MEANING ESCAPES YOU! NO DISABLED ACCESS.
at [24].
There is a distinct abuse and character assassination going on here toward myself as a disabled person, no different to ABORIGINAL AUSTRALIANS abuse and discrimination. NO DISABLED ACCESS!
at [26].
The allegations of no disabled access do not sit comfortably with other allegations made in the SOC relating to the provision of a lift and specific disabled seating in the cinema, and in any event appear to go outside of the original complaint to the AHRC which was as to the nature of the seating in a particular cinema, and as such are arguably matters which are not the same, or the same in substance, or arising out of the same acts, omissions or practices of the subject that were the subject of the terminated complaint, for the purposes of s.46PO(3) of the AHRC Act: see Kanyana Wildlife (No 1) at [27]-[44] per Judge Lucev (and in particular the case law from the Federal Court cited at [28]-[31]).
Paragraphs 20-28 inclusive of the SOC are vague and irrelevant and embarrassing and will be struck out.
Paragraph 29
At [29] it is said that:
It seems very evil that the HOYTS CORPORATION, [name of legal firm deleted] and their LAWYERS have the nerve or the court allowance to ask one single thing of me especially when the facts are there, no disabled access + disability, means DISABILITY DISCRIMINATION, POINT BLANK!
The allegation of disability and discrimination in [29] is unparticularised, and put in a form which is vague and embarrassing, and [29] of the SOC will be struck out.
Paragraphs 30-33
At [30]-[33] there are further broad statements concerning discrimination against disabled persons in Australia, which include references to a book written about disability discrimination in the United Kingdom entitled “Scapegoat – why we are failing the disabled”, the use of the Courts to achieve justice, liberty and compassion for those less fortunate, further allegations of systemic discrimination, violence, abuse, humiliation and hate crimes being “rampant against the disabled in Australia”, and an allegation that Hoyts Corporation and its lawyers have no excuse for allowing discrimination and then bullying Mr Ellis.
Paragraphs 30-33 of the SOC are irrelevant, otherwise vague and embarrassing, and additionally at [33] scandalous, and will be struck out.
Paragraph 34
At [34] reference is again contained to mediation, out of court confidential settlements and the failure of Hoyts Corporation to settle these proceedings, which is improper, and [34] will be struck out.
Paragraph 35
Paragraph 35 of the SOC is a submission: it does not plead facts, and is otherwise inconsistent with the plea at [9] and [35], and [35] will be struck out.
Paragraph 36
At [36] Mr Ellis refers to the emotional harm he is suffering “as a result of stress and torture of a court case”. Those damages are not compensable and the content is therefore irrelevant.
At [36] comments were also made as to the morality of Hoyts Corporation and its lawyers, which allegations are embarrassing, if not scandalous.
Paragraph 36 of the SOC will be struck out.
Paragraph 37
At [37] there is a submission about duty of care and public liability which is irrelevant, and [37] of the SOC will be struck out.
Paragraph 38
At [38] Mr Ellis dismisses and rejects any claim or action for summary dismissal, and describes the issue as a moral and ethical one “under the watchful eye and compassionate hand of God”.
Paragraph 38 is irrelevant, vague and embarrassing, and will be struck out.
Paragraph 39
At [39] Mr Ellis asserts that he does have reasonable prospects of success, and says he has identified “the goods and services and … disclosed a basis for a claim in fact and law” and then goes on to criticise Hoyts Corporation and its lawyers for “not caring or having a duty of care as the venue was inaccessible to me”.
In a very broad sense [39] endeavours to assert a claim of disability discrimination, by reference to goods and services and an inaccessible venue, but does not particularise the claims, which are vague and self-serving. It follows that [39] will be struck out.
Paragraphs 40-58
At [40]-[58] Mr Ellis makes a variety of statements, assertions and submissions, including the following:
a)that he has “received a health boost from a HIGHER POWER”: at [40];
b)that Hoyts Corporation and its lawyers are lacking in morality and reasoning: at [41];
c)that his claim is not scandalous, frivolous or vexatious, and that Aboriginal Australians and disabled Australians are treated the same, and that “the LAWYERS” have helped cause his grief and stress: at [42];
d)that “PUBLIC LIABILITY INSURANCE is a party to the claim”: at [43];
e)that Hoyts Corporation and its lawyers are bringing the administration of justice into disrepute: at [44];
f)that Australian society is systemically disability discriminative and “DISABILITY HATE CRIMINALS”: at [45];
g)the case is about godly compassion, morals and principles: at [46], and that the laws of the Bible are the only laws of men: at [47];
h)submissions concerning the role of the United Nations in relation to the disabled and that Hoyts Corporation and its lawyers have “blatantly defiled” principles in relation to the treatment of the disabled: at [48];
i)a submission that he is “a disabled man in agony, not a veggie pie” and that another corporate entity (Wesfarmers) needs to look in the mirror: at [49]; and
j)at [50]-[58] various claims, assertions and declarations concerning disability hatred and disability discrimination against disabled Australians, alleged abuse by Hoyts Corporation and its lawyers, specific assertions about the conduct of Hoyts Corporation’s lawyers which are plainly scandalous (in particular at [52]-[58]), and which do not bear repetition for present purposes in these Reasons for Judgment.
It follows from the above that [40]-[58] of the SOC will be struck out as being irrelevant and embarrassing, and in relation to [52]-[58] as being scandalous as well.
Paragraph 59
Paragraph 59 potentially sets out the details of various disabilities, and insofar as it relates to those disabilities might not ordinarily be struck out, or at the very least could be re-pleaded to properly plead the disabilities and their consequences for Mr Ellis.
Paragraph 60
At paragraph 60, Mr Ellis April 2016 Outline of Submissions is reproduced (if not verbatim, then almost so) in a further 34 sub-paragraphs. It was Mr Ellis’ April 2016 Outline of Submissions, and its inadequacy, that led to him being given the opportunity to prepare and file the Statement of Claim presently under consideration. The purpose of Mr Ellis filing a Statement of Claim was not to enable him to repeat verbatim, or almost verbatim, Mr Ellis’ April 2016 Outline of Submissions, and for essentially the same reasons as relate to [40]-[58] of the SOC, [60] is either irrelevant and embarrassing, or scandalous. It follows that [60] of the SOC will be struck out.
Statement
The Statement consists of an argumentative submission, unrelated to the specific claims made in relation to Hoyts Corporation in these proceedings. The tenor of the Statement can be ascertained from the paragraphs set out at [8] above which are repeated in the Statement. The Statement essentially suffers from the same vices as paragraphs [40]-[58] of the SOC. It follows that the Statement will also be struck out.
Removal of SOC from the file
Hoyts Corporation also seeks the removal of the SOC from the Court file. In the current electronic court file environment there is no paper document to be removed, and rather than ordering that the electronic documents be redacted, in circumstances where the SOC is replete with scandalous material, it seems more appropriate to simply order that it be permanently suppressed and not be able to be viewed by any person save by leave of the Court: see Cantarella Bros Pty Ltd v Du Bois [2016] FCA 1115 at [12]-[13] per Rares J and 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.
Conclusion and orders
The Court has concluded that, for the reasons set out above, the SOC is to be struck out, but with Mr Ellis having leave to file and serve an Amended SOC by 24 April 2018, and that the matter otherwise be adjourned to a further directions hearing at 3.00pm on 27 April 2018.
As to costs, the Court notes the summary of the procedural history of the matter set out at [3]-[12] above. It is not immediately apparent to the Court as to why Hoyts Corporation ought to receive the costs of, for example, the directions hearing of 9 March 2016 or the consent order of 1 April 2016. Subject to anything to be said by Mr Ellis, there would appear to be little doubt that on the ordinary principle that costs follow the event, Hoyts Corporation ought to have its costs of the directions hearing on 31 March 2017 and the current application in a case. The question arises whether those costs ought to be awarded on an indemnity basis: see Ellis v Silver Vision Pty Ltd (No 2) [2017] FCCA 151; [2017] 318 FLR 111 at [45]-[50] per Judge Lucev (and cases there cited). In the circumstances, the Court has determined that it will order that each party file short written submissions of no more than five pages with respect to costs, and that the issue of costs be determined on the papers.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 8 March 2018
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