Ellis v The Hoyts Corporation Pty Ltd (No.2)
[2018] FCCA 1574
•15 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v THE HOYTS CORPORATION PTY LTD (No.2) | [2018] FCCA 1574 |
| Catchwords: PRACTICE AND PROCEDURE – Where orders made in a party’s absence – application may be made to set aside orders. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), Sch.1, Pt.1, rr.13.03C, 16.05 |
| Cases cited: Ellis v Silver Vision Pty Ltd (No.2) [2017] FCCA 151 |
| Applicant: | TROY ELLIS |
| Respondent: | THE HOYTS CORPORATION PTY LTD |
| File Number: | PEG 596 of 2015 |
| Judgment of: | Judge Lucev |
| Hearing date: | 27 April 2018 |
| Date of Last Submission: | 27 April 2018 |
| Delivered at: | Perth |
| Delivered on: | 15 June 2018 |
REPRESENTATION
| Applicant: | No appearance by or for the applicant |
| Counsel for the Respondent: | Mr B Winburn-Clarke |
| Solicitors for the Respondent: | SRB Legal |
ORDERS (as made 27 April 2018)
That in relation to the costs the subject of the Court’s orders of 8 March 2018, the applicant pay the respondent’s costs in the sum of $5,500 by 27 May 2018.
That pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) the application be dismissed.
That in relation to costs other than those the subject of order 1, the applicant is to pay the respondent’s costs of $3,534 by 27 May 2018.
That the reasons for judgment in relation to orders 1-3 be published from Chambers at a later date.
| 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
The applicant in these proceedings is Mr Troy Ellis (“Mr Ellis”). Mr Ellis filed an originating application in this Court on 29 December 2015 (“Application”) alleging disability discrimination by the respondent, The Hoyts Corporation Pty Ltd (“Hoyts Corporation”). On 27 April 2018 the Court dismissed the matter and made the following orders:
1. In relation to the costs the subject of the Court’s orders of 8 March 2018, the applicant pay the respondent’s costs in the sum of $5,500 by 27 May 2018.
2. Pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) the application be dismissed.
3. In relation to costs other than those the subject of order 1, the applicant is to pay the respondent’s costs of $3,534 by 27 May 2018.
4. The reasons for judgment in relation to orders 1-3 be published from Chambers at a later date
These reasons for judgment are those referred to in order 4 above.
Background
It is unnecessary for the Court to traverse in detail the background of this matter which has been detailed in a previous judgment: see Ellis v The Hoyts Corporation Pty Ltd [2018] FCCA 557 at [3]-[12] per Judge Lucev (“Ellis-Hoyts No 1”).
The orders made upon delivery of Ellis-Hoyts No 1 were as follows (“Ellis-Hoyts No 1 Orders”):
1. 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.
2. That the applicant have leave to file and serve an Amended Statement of Claim by 24 April 2018.
3. 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.
4. Matter otherwise be adjourned to 3.00pm on 27 April 2018 for further directions.
Mr Ellis was not present when judgment was delivered and the orders were made in Ellis-Hoyts No.1 on 8 March 2018. The Court had attempted to contact Mr Ellis on the mobile telephone number he provided on three occasions, however, Mr Ellis did not answer the Court’s calls. As a matter of prudence the Court also called the matter outside three times, however, Mr Ellis did not appear. The Court made the Ellis-Hoyts No 1 Orders notwithstanding Mr Ellis’ absence. The Court proceeded to email Mr Ellis later on 8 March 2018, attaching an electronic copy of the Ellis-Hoyts No 1 and a sealed copy of the Ellis-Hoyts No 1 Orders.
In accordance with order 3(a) of the Ellis-Hoyts No 1 Orders, Hoyts Corporation filed an outline of submissions on 7 April 2018. Mr Ellis failed to file any outline of submissions, and he did not file any amended statement of claim in accordance with orders 2 and 3(b) of the Ellis-Hoyts No 1 Orders.
At the adjourned directions hearing on 27 April 2018 the Court attempted to contact Mr Ellis on three occasions on his mobile telephone number, however, these calls were not answered. Again, as a matter of prudence, the Court also called the matter outside three times, however Mr Ellis did not appear. In light of Mr Ellis’ non-appearance and failure to comply with the Ellis-Hoyts No 1 Orders, Hoyts Corporation moved for the costs of the Ellis-Hoyts No 1 matter in the quantum sought of $5,500. Those costs included those that had been incurred by virtue of commencing the action the subject of Ellis-Hoyts No 1, and an amount of indemnity costs based on the findings made in Ellis-Hoyts No 1.
Order 1
In the Court’s view, for reasons which follow hereunder, the quantum of costs awarded in order 1 was a fair and accurate sum, and failing Mr Ellis having provided any outline of submissions to contest the claim the Court was minded to grant Hoyts Corporation the amount sought. Despite Mr Ellis’s absence, and because Mr Ellis was a self-represented litigant, the Court has, however, carefully considered the quantum Hoyts Corporation claimed.
Hoyts Corporation sought costs for the wasted attendances at three directions hearings, at which orders were made reserving costs:
a)on 26 August 2016 Mr Ellis was given leave to obtain pro bono legal advice on the proper manner to plead his Application, but he did not do so, and further failed to file a statement of claim as the orders directed;
b)on 24 January 2017 the Court granted an extension of time for Mr Ellis to file his statement of claim, that statement of claim ultimately being held not to be “proper and adequate”: Ellis-Hoyts No 1; and
c)on 31 March 2017 the parties attended the directions hearing to obtain programming orders in light of Hoyts Corporation seeking to strike-out Mr Ellis’ statement of claim.
In light of the ultimate disposition of the proceedings, and in any event, the costs of each of those directions hearings were costs to which Hoyts Corporation were entitled.
Hoyts Corporation was successful in the application to strike-out Mr Ellis’ statement of claim: Ellis-Hoyts No 1. As the successful party, costs should follow the vent therefore Hoyts Corporation is entitled to the costs of, and incidental to, the strike out application the subject of Ellis-Hoyts No 1. In light of the circumstances and the manner in which Mr Ellis conducted the proceedings, Hoyts Corporation sought a lump sum of $5,500 to be paid on an indemnity basis.
Hoyts Corporation referred to the principles regarding indemnity costs as summarised in Ellis v Silver Vision Pty Ltd (No.2) [2017] FCCA 151 at [45]-[48] per Judge Lucev:
[45] A court may order indemnity costs in circumstances which show some element of improper, or at least unreasonable, conduct by a party: Colgate Palmolive Company & Anor v Cussons Pty Limited [1993] FCA 536;(1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 28 IPR 561; FCR at 233 per Sheppard J (“Colgate-Palmolive”), and in those circumstances an order for indemnity costs may reflect the Court's disapproval of the conduct of the unsuccessful party: Fazio v McNally [2014] WASCA 79 at [ 48] per Pullin and Newnes JJA. Where, for example, a party was offered the opportunity to withdraw without costs, and warned that a costs application would be made if the opportunity was not taken up, and where the party did not take that offer up “but instead counter-attacked with venom in the subsequent affidavit”indemnity costs were awarded: Lance v QAV Pty Ltd [2013] WASC 13 at [21] - [22] per McKechnie J.
[46]As the Full Court of the Federal Court observed in Manolakis at [9] per Spender, Graham and Tracey JJ:
Nor do courts exist to allow the frustrations of self-represented litigants to be relieved by the making of abusive or contemptuous tirades directed at those whom they perceive to have wronged them, judicial officers who may have decided not to find for them, or judges whose duty it is to hear them, when such litigants sense that the expressions of their grievances are not being favourably received by the court.
[47] This Court has determined that serious allegations scandalously made about the conduct of legal practitioners, including lawyers for parties involved in the litigation, warrant an award of indemnity costs: Sims v Jooste & Ors (No.4) [2016] FCCA 2641 at [89]- [93] per Judge Lucev.
[48] The discretionary categories in respect of which indemnity costs may be awarded are not closed and other elements of litigious misconduct may be relevant in considering an award of indemnity costs: Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, French J, 3 May 1991) at page 8 per French J.
In Ellis-Hoyts No 1 the Court struck out Mr Ellis’ statement of claim, and notes that 24 paragraphs of Mr Ellis’ statement of claim were struck out on grounds of being scandalous, and in particular because there were disrespectful and unwarranted remarks disparaging Hoyts Corporation’s lawyer. The entirety of Mr Ellis’ statement of claim was considered by the Court to be vague, irrelevant and embarrassing. In those circumstances it was appropriate for Hoyts Corporation to seek indemnity costs, and in the Court’s view the quantum sought was a fair and accurate lump sum. There was therefore an order that Mr Ellis pay the costs of Ellis-Hoyts No 1 in the sum of $5,500.
Order 2
On 27 April 2018 Mr Ellis was unable to be contacted on the telephone number he has provided to the Court for “all court appearances”. Mr Ellis:
a)was provided by email on 8 March 2018 with the Ellis-Hoyts No 1 Orders expressly stating the listing date of 27 April 2018 for further directions; and
b)sought in an email to Chambers dated 10 March 2018 that the Ellis-Hoyts No 1 Order be sent to him again, which they were.
In the above circumstances the Court was satisfied it should exercise the discretion to dismiss the proceeding pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), and an order was made accordingly.
Order 3
In light of the Court dismissing the application pursuant to r.13.03C(1)(c) of the FCC Rules, it is trite that costs should follow the event and therefore a further costs order was made in respect of matters other than Hoyts Corporation’s strike-out application. Pursuant to Pt.1 of Sch.1 of the FCC Rules the Court determined that the following individual amounts had been incurred by Hoyts Corporation:
a)for opposing the application until the first Court date on 9 March 2016, the sum of $2,936, plus $299 for an appearance at that first Court date;
b)a further directions listing on 15 July 2016 incurring a hearing fee of $299; and
c)attendance at the directions listing on 27 April 2018 again incurring a hearing fee $299.
The Court confirms the costs incurred for the directions listings the subject of order 1 are not included in order 3, and the total sum of the further costs for the proceedings amount to $3,534. Accordingly, order 3 was made.
Set-aside application
The Court notes, having made the orders referred to at [1] above in Mr Ellis’ absence, that pursuant to r.16.05(2)(a) of the FCC Rules Mr Ellis may seek to have those orders set aside upon further application to the Court. As to the criteria to be considered on such a set-aside application see MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530 at [7] per Ryan J; Singh v Official Trustee in Bankruptcy [2008] FMCA 521 at [19] per Lucev FM.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 15 June 2018
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