Ellis v Virgin Australia Airlines Pty Ltd
[2018] FCCA 1535
•14 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v VIRGIN AUSTRALIA AIRLINES PTY LTD | [2018] FCCA 1535 |
| Catchwords: PRACTICE AND PROCEDURE – Application for adjournment – consideration of factors relevant to adjournment. |
| Legislation: Australian Human Rights Commission Act1986 (Cth), s.46PO Criminal Code Act1995 (Cth), Schedule, s.474.17 Disability Discrimination Act 1992 (Cth), ss.5, 6 Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42 Federal Circuit Court Rules 2001 (Cth), Part 12, rr.1.03, 13.03B, 13.10 |
| Cases cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 Ellis v Silver Vision Pty Ltd trading as Arirang Korean BBQ Restaurant & Café [2018] FCA 333 Ellis v Rottnest Lodge (1989) Pty Ltd trading as Rottnest Lodge [2017] FCCA 84 Ellis v Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust T/A Rottnest Express & Ors (No 2) [2017] FCCA 960 |
| Applicant: | TROY ELLIS |
| Respondent: | VIRGIN AUSTRALIA AIRLINES PTY LTD |
| File Number: | PEG 22 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 23 April 2018 |
| Date of Last Submission: | 23 April 2018 |
| Delivered at: | Perth |
| Delivered on: | 14 June 2018 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the Respondent: | Mr AJ Power |
| Solicitors for the Respondent: | HWL Ebsworth Lawyers |
ORDERS
To the extent that there was an adjournment application before the Court by reason of Mr Ellis’ 3 April 2018 Email, that application for an adjournment be dismissed.
Pursuant to rr.13.03B(1)(a) and 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) the Originating Application filed 9 January 2017 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 22 of 2017
| TROY ELLIS |
Applicant
And
| VIRGIN AUSTRALIA AIRLINES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction – Application in a Case
The respondent, Virgin Australia Airlines Pty Ltd (“Virgin Australia”) by an Application in a Case filed 30 January 2018, seeks an order that the Originating Application filed by the applicant, Troy Ellis (“Mr Ellis”) on 9 January 2017, be wholly dismissed pursuant to r.13.03B of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) for failure to comply with an order of the Court. In the alternative, Virgin Australia seeks an order under r.13.10 of the FCC Rules that the proceeding be dismissed on the basis that Mr Ellis has no reasonable prospect of successfully prosecuting it.
Factual and procedural background
The factual and procedural background to the Application in a Case is as follows:
a)on 12 January 2017, the applicant filed the Originating Application, out of time, against the respondent alleging unlawful discrimination under s.46PO of the Australian Human Rights Commission Act1986 (Cth) (“AHRC Act”);
b)following various directions hearings and interlocutory steps time for the filing of the Originating Application was extended by order 1 of the Court’s orders of 25 October 2017 (“Court’s October 2017 Orders”);
c)the Court’s October 2017 Orders also ordered that the applicant “…file and serve his Statement of Claim setting out the basis for his claim by 22 December 2017”;
d)Mr Ellis served filed a Statement of Claim on 28 November 2017, and served it on Virgin Australia’s solicitors the following day: affidavit of Ankush Chauhan affirmed 30 January 2018 (“Chauhan January 2018 Affidavit”) at [8] and Annexure D;
e)on 17 January 2018, the solicitors for Virgin Australia wrote to Mr Ellis (“Virgin Australia’s January 2018 Letter”) informing him that Virgin Australia regarded the Statement of Claim to be deficient, because it pleaded no cause of action in discrimination against Virgin Australia: Chauhan January 2018 Affidavit at [9] and Annexure E;
f)Virgin Australia’s January 2018 Letter also put Mr Ellis on notice that Virgin Australia intended to file an Application in a Case to have the proceedings summarily dismissed on the basis that there was no reasonable prospect of it being successfully prosecuted due to the deficiencies in the Statement of Claim: Chauhan January 2018 Affidavit at Annexure E;
g)by an email to Virgin Australia’s solicitors sent 22 January 2018 (“Mr Ellis’ January 2018 Email”) Mr Ellis replied to Virgin Australia’s solicitors: Chauhan January 2018 Affidavit at [10] and Annexure F;
h)by email on 3 April 2018 Mr Ellis wrote to the Associate to the presiding Judge in this matter seeking a six month adjournment of the proceedings (“Mr Ellis’ 3 April 2018 Email”): affidavit of Ankush Chauhan affirmed 18 April 2018 (“Chauhan April 2018 Affidavit”) at [8] and Annexure E;
i)on 6 April 2018 the Deputy Associate to the presiding Judge advised Mr Ellis that if he wished to have the matter stayed for six months he would be required to contact Virgin Australia and provide consent orders to the Court, or if Virgin Australia did not consent he would be required to file an Application in a Case with supporting affidavit (the Deputy Associate’s email was copied to the solicitors for Virgin Australia): Chauhan April 2018 Affidavit at [8] and Annexure E;
j)on 6 April 2018 Virgin Australia’s solicitors sent an email to Mr Ellis indicating that they “will not consent to the matter being stayed for six months and will oppose any application that is made”: Chauhan April 2018 Affidavit at [9] and Annexure F;
k)on 13 April 2018 Mr Ellis responded to the email from Virgin Australia’s solicitors (“Mr Ellis’ 13 April 2018 Email”): Chauhan April 2018 Affidavit at [10] and Annexure G;
l)no Application in a Case with a supporting affidavit seeking a stay or adjournment of any kind was filed by Mr Ellis; and
m)on the day of the hearing, 23 April 2018, there were at least four endeavours to contact Mr Ellis by telephone on the number that he has provided to the Court to enable him to appear by telephone in interlocutory proceedings, and those endeavours were unsuccessful. When the matter was called outside the Court there was no appearance by Mr Ellis: Transcript, page 3.
Set out below is the content of the Statement of Claim, Virgin Australia’s January 2018 Letter, Mr Ellis’ January 2018 Email and Mr Ellis’ 13 April 2018 Email.
Statement of Claim
Mr Ellis’ Statement of Claim filed on 28 November 2017 is in the following terms:
1. My pleadings are that I have been DISCRIMINATED against on DISABILITY grounds by VIRGIN AUSTRALIA, through their VIRGIN AUSTRALIA DOMESTIC AIRLINE SERVICE.
2. I am entitles to damages, as the entire Australian community, government and corporate sectors have known for countless decades that the disabled have full inclusion and access laws to protects us, yet the failures continue and UNIVERSAL ACCESS is just not available at AIRPORTS and VIRGIN AUSTRALIA aircraft.
3. VIRGIN AUSTRALIA has also been very dishonest in many of their dealings with HREOC, the PERTH FEDERAL COURT and in the PERTH FEDERAL COURT MEDIATION in regards to my knowledge of laws and their lacking of disabled access, as I had to ask the lawyers over and over again, until I left the mediation in disgust, the very same question that remains unanswered to this day, “where do people in mobility scooters and wheelchairs place themselves on VIRGIN AUSTRALAIN planes” where the answer is right in the front of the static chairs, where I was told that I could not sit, which is obviously a white wash of swill and legal UH-OH he has got us there and UH-OH he has proven we are wrong and negligent, so let's try all sorts of angles, lies, cover ups, avoiding questions and stalling motions to defame and discredit MR ELLIS.
4. The RULE OF LAW, have all been thrown in the bin by VIRGIN AUSTRALIA too, with this complete lack of compassion, care and safety for the most vulnerable and poorly treated in the Australian community, the DISABLED COMMUNITY, who are always so systemically ignored, as even stated by CENTRELINK themselves earlier in 2017.
5. The fact that the walking disabled have to be ferried across tarmacs and miles to planes through busy airports in a push wheelchair that takes away my dignity and can have me so stressed and exhausted before reaching the plane, that it causes me to feel anxiety all the way on the trip and gives me bad memories of a trip too. Sure they give me a wheel down but there has to be an easier way to transport me to and into a plane, in this day of high security, technology, innovation and talks of disability access, discrimination, UNIVERSAL ACCESS and litigation.
6. DISABLITY ACCESS for me just getting into the airplane is dangerous and cumbersome for someone in my disabled condition of BECKERS MUSCULAR DYSTROPHY.
7. The best response to my complaint by VIRGIN AUSTRALIA was why not spend millions on countless advertisements, marketing and deck out the planes with expensive fit outs, so now I hardly fly, which has taken away my liberty to attend recreation events wherever and whenever I chose, which is a joke, as my original HREOC complaint never even spoke of flash new technology, furniture or carpeting.
8. I seek $1MILLION in compensation, a public apology and an explanation for why nothing has been done about rectification of this complaint with HREOC.
9. I would still entertain the possibly of a negotiation, however I doubt in my experience of these matters that this will happen to my satisfaction.
10. It does become harder for me to remember every single matter that has upset me when using VIRGIN AUSTRALIA as the years have gone by, with more memories and issues coming to my mind as this court case progress, however I believe I have mentioned the most pressing issues.
11. VIRGIN AUSTRALIA has pig headedly stuck to their guns over my HREOC complaint and have done nothing, so here we are now in court because of them, not because of me.
Virgin Australia’s January 2018 Letter
Virgin Australia’s January 2018 Letter is relevantly as follows:
We refer to your Statement of Claim filed on 26 November 2017 and which our office received service of on 29 November 2017.
We confirm that the Order of His Honour Judge Lucev dated 25 October 2017 ('Judge Lucev's order'), requires Virgin to file and serve its Defence to the Statement of Claim by 31 January 2018.
Virgin considers the Statement of Claim filed on 26 November 2017 to be deficient, as it pleads no cause of action in discrimination against Virgin, and does not set out a proper basis for a claim to which Virgin can respond.
Virgin is therefore not able to serve its Defence in response to the Statement of Claim as it is currently pleaded, by the date required in Judge Lucev's order (being on or before 31 January 2018). In the circumstances, Virgin reserves its right to file and serve its Defence until such time as the deficiencies in the Statement of Claim are rectified.
We otherwise put you on notice that pursuant to Rule 13.10 of the Federal Circuit Court Rules 2001 (Cth), Virgin intends to file an Application in a Case to have the matter summarily dismissed, on the basis that there is no reasonable prospect of the claim being successfully prosecuted due to the deficiencies in the Statement of Claim.
Virgin Australia’s January 2018 Letter was signed by Ankush Chauhan, a senior associate with HWL Ebsworth Lawyers, the solicitors for Virgin Australia.
Mr Ellis’ January 2018 Email
Mr Ellis’ January 2018 Email is as follows:
YOU ARE SO FULL OF SHIT, I HAVE GIVEN MY STATEMENT, SO TRY IT YOU FOREIGN CRIMINAL AND I WILL DECLARE THAT VIRGIN IS NOT FOLLOWING THE COURT ORDERS AND DEMAND THAT THE CASE BE JUDGED IN MY FAVOUR.
BE WARNED YOU HALF WIT, IF THIS FARCE CONTINUES, I WILL FUCK VIRGIN ALL THE WAY TO THE HIGH COURT AND I WILL OUT RICHARD BRANSON TO THE INTERNATIONAL MEDIA AS NOT AS GOOD AS HE PRETENDS TO BE, SEEMING AS VIRGIN INTERNATIONAL DOES NOT HAVE THE BALLS TO PICK UP THE PHONE OR TALK TO ME ABOUT VIRGIN AUSTRALIAN CRIMES.
THE TIME HAS COME FOR YOU LAWYERS AND FOREIGNERS TO BE JAILED FOR BEING CRIMINALS AND BULL SHIT ARTISTS TO THE REAL AUSTRALIANS WHO ARE GOING WITHOUT AND BEING FUCKED OVER WHILE GOING WITHOUT.
Mr Ellis’ 13 April 2018 Email
Mr Ellis’ 13 April 2018 Email is as follows:
FUCK OFF YOU SLIMY FOREIGN RAG HEAD AND GET THE FUCK OUT OF M COUNTRY.
I CANNOT WAIT UNTIL THE SOON TO HAPPEN CIVIL WAR OR REVOLT STARTS, AS I WILL TELL THE PATRIOT REBELS WHO TO THROW OUT OF HIGH RISES AROUND THE COUNTRY.
YOU ARE ONE OF THE ENEMIES OF AUSTRALIA I WILL FORWARD ON.
Dismissal for non-compliance
The test for dismissal for non-compliance was set out by this Court in Ellis v Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust T/A Rottnest Express & Ors [2017] FCCA 88 at [26]-[32] and also at [37] and [44] per Judge Lucev (delivered on 24 January 2017) as follows:
26. Rule 13.03B(1)(a) of the FCC Rules requires the Court to objectively assess all of the circumstances and to determine if the non-compliance is sufficiently serious, at this stage, to warrant dismissal of the application for default in failing to comply with orders of the Court: Wintle v RUC Cementation Mining Contractors Pty Ltd [2012] FMCA 140 at [21] per Lucev FM (“Wintle”). In Wintle at [21] per Lucev FM the then Federal Magistrates Court (“FM Court”) took into account in objectively assessing all of the circumstances (and in determining to give Mr Wintle a further opportunity to put his claim in proper order):
a) that it was the first occasion on which Mr Wintle had not complied with orders of the FM Court;
b) that Mr Wintle was self-represented;
c) a submission (to which “some regard” was had) that Mr Wintle did not understand what was required of him by the relevant orders; and
d) the “exceptional caution” exercised when determining whether to dismiss claims containing allegations of unlawful discrimination (and citing in that regard Oorloff & Anor v Lee & Ors [2004] FMCA 893 at [49] per Walters FM and Portuguese Cultural and Welfare Centre Inc v Australian Media and Communications Authority [2011] FMCA 144; (2011) EOC 93-600 at [116] per Lucev FM).
27. This Court has more recently observed that the exercise of the discretion to dismiss for non-compliance with a Court’s orders is not commonplace, and further, that orders under r.13.03B(1) of the FCC Rules ought to be exceptional: Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159 at [20] and [28] per Judge Lucev.
28. In Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388; (1990) 98 ALR 200; [1991] ATPR 41-082 (“Lenijamar”) the Full Court of the Federal Court established principles concerning applications to dismiss a proceeding based on non-compliance with court orders.
29. In Lenijamar the Full Court of the Federal Court considered the discretionary power to make orders under then O.10 r.7 of the then Federal Court Rules 1976 (Cth) (“1976 FC Rules”). That order was in substantially the same terms as r.13.03B(1) of the FCC Rules. After making some general observations about the scope of O.10 r.7 of the 1976 FC Rules, the majority of the Full Court of the Federal Court in Lenijamar FCR at 396 per Wilcox and Gummow JJ cautioned that:
We would not wish our observations to cause respondents to apply for dismissal of proceedings simply because there has been a non-compliance with a direction by the applicant, even though it does not cause or indicate a continuing problem in preparing the matter for an early trial.
30. The majority of the Full Court of the Federal Court in Lenijamar observed that whilst it was undesirable to exhaustively outline the circumstances in which the power under O.10 r.7 of the 1976 FC Rules would be appropriately exercised, two situations were obvious candidates for the exercise of the power: Lenijamar FCR at 396 per Wilcox and Gummow JJ.
31. The first situation outlined in Lenijamar arises where there has been a history of non-compliance by an applicant to indicate an inability or unwillingness to cooperate with the Court and the other party or parties in bringing the matter to a hearing within an acceptable period: Lenijamar FCR at 396 per Wilcox and Gummow JJ. Importantly, there is:
no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court’s judgement as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule.
Lenijamar FCR at 396 per Wilcox and Gummow JJ.
32. The second situation outlined in Lenijamar arises where, whatever an applicant’s state of mind or resources, the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent: Lenijamar FCR at 396 per Wilcox and Gummow JJ.
37. Although this is a claim which does not have to be “pleaded” in the traditional sense, it remains the case that there must be a sufficient degree of specificity of the material facts so as to define the issues and inform the FPA in advance of the case that they have to meet: Chang v CST Minerals Lady Annie Pty Ltd [2015] FCA 620 at [19]-[21] per Mortimer J (albeit a case in the context of pleadings in a sex discrimination case). The filing of the Factual Summary, or the filing of submissions and evidence in relation to the extension of time application, might have sufficed in this regard, but by reason of Mr Ellis’ non-compliance with the relevant orders, there is no sufficient degree of specificity of the material facts so as to define the issues and inform the FPA in advance of the case that they have to meet. Mr Ellis’ response to this is that the FPA “had enough evidence in my Human Rights Commission reports”, by which the Court assumes he means his complaint to the AHRC. The answer to Mr Ellis’ suggestion that the FPA ought to look at the AHRC complaint is that the AHRC complaint does not form part of the Originating Application (even when attached to the Originating Application), and generally forms no part of the proceeding in this Court at all, but is rather a pre-condition to, and a constraint upon, the exercise of the Court’s jurisdiction under the AHRC Act, that jurisdiction being limited to the nature of the AHRC complaint as it was at the time of the termination of the AHRC complaint by the AHRC: Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573; (2000) 105 IR 153; Reynolds v JP Morgan Administrative Services Australia Ltd (No. 2) [2011] FCA 489; (2011) 193 FCR 507; (2011) 280 ALR 612 at [20]-[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. Resort cannot therefore be had to the AHRC complaint to determine what the material facts of the disability discrimination alleged in these proceedings might be.
44. Mr Ellis’ failure to comply with the Court’s orders to date has to be considered in the context of s.42 of the Federal Circuit Court Act 1999 (Cth), which requires the Court to “endeavour to ensure that the proceedings are not protracted”: Wang v Botany View Hotel [2014] FCCA 850 at [23] per Judge Emmett (“Wang”), and the general requirement to endeavour to act expeditiously: Wang at [23] per Judge Emmett. The proceedings have already become unnecessarily protracted by reason of Mr Ellis’ failure to comply with the Court’s orders to date, and would be further protracted, at least in relation to the FPA, if the proceedings were to continue against the FPA. It would, for example, be necessary to make further orders with respect to the filing of a Factual Summary and the filing and service of submissions and evidence, and evidence in reply, in relation to the extension of time application listed for 17 March 2017, and there would be a serious question as to whether that interlocutory hearing could proceed. The delays which have already occurred, and any further delays, are serious issues for consideration in a Registry where there is a single Judge sitting and in which in 2016 650 applications were lodged.
Summary dismissal
The test for the summary dismissal of an application on the basis that there is no reasonable prospect of success arising from the Statement of Claim was set out in Ellis v Kanyana Wildlife Rehabilitation Centre Inc [2017] FCCA 89 (“Kanyana”) (delivered on 24 January 2017) where at [22]-[26] per Judge Lucev the Court observed as follows:
Legislative provisions
22. 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.
23. 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 Federal Court Rules 2011 (Cth) (“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 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.
24. 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.
25. 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.
26. The Court’s power to summarily dismiss an application is discretionary, and Kanyana Wildlife 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.
Other cases involving Mr Ellis in this Court
The Court can take judicial notice of the fact that Mr Ellis has filed a significant number of cases in this Court. It is necessary to refer to some of those cases which have been the subject of judgments of the Court because of a submission made by Virgin Australia that Mr Ellis understood what was required of him, but simply chose not to do what was required, in relation to filing a Statement of Claim which properly set out his case.
In Ellis v FJM Property Pty Ltd [2016] FCCA 808 (delivered on 13 April 2016), on an application by the respondent to be represented other than by a lawyer, the Court observed at [50] per Judge Lucev as follows:
50. In the Court’s view FJM Property’s failure to engage a lawyer may have already resulted in inefficiencies in the running of this case. For example, a lawyer presenting the matter for FJM Property, and taking the point presently taken by FJM Property that it is not the owner or operator or otherwise involved in “The Garden” would not only have dealt with the issues giving rise to the Court having found that this is a complex case, as set out above, but would have also been likely to have sought to have the matter summarily dismissed on the basis that the originating application discloses no reasonable cause of action because:
a) no facts are alleged which could form the basis for a cause of action under the DD Act, and most notably, there is no allegation as to when, where or how it is said that Mr Ellis was discriminated against in attempting to access, or make use of the facilities at, “The Garden”; and
b) no legal basis, or proper factual basis, for the alleged discrimination is set out properly, or at all, in the originating application.
In Ellis v Left Bank Holdings Pty Ltd [2017] FCCA 90 (“Left Bank Holdings”) (delivered on 24 January 2017) the Court ordered Mr Ellis to file and serve a Statement of Claim setting out the basis of his claim against the respondent in those proceedings. In the judgment in Left Bank Holdings at [17]-[19] per Judge Lucev the Court observed as follows:
17. Any statement of claim filed by Mr Ellis must set out the fact of any disability that he has upon which he relies for the purposes of these proceedings, and the extent of that disability so far as it is relevant to these proceedings, and the existence and identity of any assistance dog or animal that he uses in relation to the disability.
18. The Court notes that Mr Ellis is required to set out the disability relied upon in relation to the alleged discrimination, and to specify why it is that the alleged discrimination was because of his disability: Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92; (2003) 78 ALJR 1; (2003) 202 ALR 133; (2003) 77 ALD 570; [2004] EOC 93-305; Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 101 ALD 459; [2008] EOC 93-493 at [90]-[91] per French and Jacobson JJ (“Gama”). Although the Originating Application contains a reference to Mr Ellis having depression, this is not in the context of the events alleged to constitute the discrimination by Left Bank Holdings, and it is not apparent that it is this disability that is relied upon in relation to the alleged discrimination.
19. The Court also notes that Mr Ellis bears the onus of proof generally in relation to his claim: Ferrus v Qantas Airways Ltd [2006] FCA 812; (2006) 155 IR 88 at [48] per Collier J; Vassollo v Jetswan Pty Ltd [2010] FMCA 708 at [20] per Lloyd-Jones FM (“Jetswan”) (and cases there cited), save where a person against whom indirect discrimination is alleged has to prove that a requirement or condition imposed which must be complied with by the person alleging discrimination is reasonable: DD Act, s.6; Jetswan at [20] per Lloyd-Jones FM (and cases there cited). The Originating Application is devoid of relevant material facts as to what occurred to constitute the alleged discrimination on the ground of disability. Although this is a claim which does not have to be “pleaded” in the traditional sense, it remains the case that there must be a sufficient degree of specificity of the material facts so as to define the issues and inform Left Bank Holdings in advance of the case it has to meet: Chang v CST Minerals Lady Annie Pty Ltd [2015] FCA 620 at [19]-[21] per Mortimer J (albeit a case in the context of pleadings in a sex discrimination case). The Originating Application does not sufficiently specify the material facts so as to inform Left Bank Holdings of the case that it has to meet. The AHRC Complaint cannot be relied upon for these purposes as it forms no part of the Originating Application or any relevant pleading: see the authorities cited at [5] above.
In Kanyana at [48]-[49] per Judge Lucev the Court observed as follows:
48. There is a further reason as to why the Statement of Claim as presently pleaded has no reasonable prospect of success. That is because it does not disclose a case of disability discrimination by reason of the fact that it does not:
a) identify the applicant’s disability; or
b) identify how the alleged discrimination is based on the particular disability, that is that the applicant was discriminated against “because of” a disability.
The necessity to identify the relevant disability, and identify that the alleged discrimination is because of that disability is well established: DD Act, s.5(1) and (2); Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92; (2003) 78 ALJR 1; (2003) 202 ALR 133; (2003) 77 ALD 570; [2004] EOC 93-305; Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 101 ALD 459; [2008] EOC 93-493 at [90]-[91] per French and Jacobson JJ (“Gama”). In Gama a ground of appeal in relation to alleged disability discrimination was successful because Mr Gama made “no attempt … to identify a disability which allegedly caused the less favourable treatment”: Gama at [90] per French and Jacobson JJ, and the first instance court “did not identify the relevant disability nor the particular way in which the remarks constituted less favourable treatment because of the disability”: Gama at [91] per French and Jacobson JJ.
49. The failure of Mr Ellis to identify the disability from which he suffers in his Statement of Claim, and to identify how the discrimination was “because of” his disability, is fatal to the success of the Statement of Claim as presently pleaded. It follows that the Statement of Claim must be struck out on this basis also.
In Ellis v Silver Vision Pty Ltd (No 2) [2017] FCCA 151; (2017) 318 FLR 111 (“Silver Vision (No 2)”) at [18]-[20] per Judge Lucev (delivered on 10 February 2017) the Court referred to certain passages in Kanyana and Left Bank Holdings and went on to make orders dismissing the application pursuant to r.13.03B(1)(a) of the FCC Rules for non-compliance with earlier orders of the Court.
In Ellis v Rottnest Lodge (1989) Pty Ltd trading as Rottnest Lodge (No 2) [2017] FCCA 190 (“Rottnest Lodge (No 2)”) (delivered on 17 February 2017) the Court made an order extending time for the filing of an originating application. In Rottnest Lodge (No 2) at [10]-[12] per Judge Lucev the Court set out relevant passages from Left Bank Holdings and Kanyana. Having determined to grant the extension of time the Court made observations concerning various matter including pleadings, and in Rottnest Lodge (No 2) at [49] per Judge Lucev said as follows:
49. Finally, the Court observes that proper pleadings: Shurat Hadin, Israel Law Center v Lynch (No 2) [2014] FCA 413 at [35]-[37] per Robertson J, as well as evidence to identify the relevant disability, its extent and its relationship to the alleged discrimination: Gama at [90]-[91] per French and Jacobson JJ, still need to be filed in these proceedings. In the circumstances, this may be an appropriate case for a referral of Mr Ellis for legal assistance under r.12.02 of the FCC Rules. That is a matter which can be addressed at the next directions hearing.
In Ellis v Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust T/A Rottnest Express & Ors (No 2) [2017] FCCA 960 (“Wadjemup Trading (No 2)”), delivered on 17 May 2017, the Court granted an oral application for an extension of time in which to file an originating application made by Mr Ellis. In so doing at Wadjemup Trading (No 2) at [17] per Judge Lucev the Court observed as follows:
17. There is otherwise no indication in the materials before the Court as to Rottnest Island Authority’s alleged discriminatory conduct. Or, whether the discrimination is direct or indirect. Importantly in a disability discrimination case, there is no indication as to what disability Mr Ellis suffers from, or when and where, and in respect of what matters the alleged discriminatory conduct occurred. Mr Ellis has not set out of the less favourable treatment alleged or any alleged comparators (for the purposes of direct discrimination under s.5 of the DD Act), or the facts which constitute a requirement or condition which is not reasonable in the circumstances of the case and which is likely to have the effect of disadvantaging a person with the relevant disability (for the purposes of indirect discrimination under s.6 of the DD Act). Although this is a claim which does not have to be “pleaded” in the traditional sense, it remains the case that there must be a sufficient degree of specificity of the material facts so as to define the issues and inform the Rottnest Island Authority in advance of the case that they have to meet: Chang v CST Minerals Lady Annie Pty Ltd [2015] FCA 620 at [19]-[21] per Mortimer J (albeit a case in the context of pleadings in a sex discrimination case). No reliance can be placed by Mr Ellis on the AHRC complaint because the AHRC complaint does not form part of the Originating Application (even when attached to the Originating Application), and generally forms no part of the proceeding in this Court at all, but is rather a pre-condition to, and a constraint upon, the exercise of the Court’s jurisdiction under the AHRC Act. This Court’s jurisdiction is limited to the nature of the AHRC complaint as it was at the time of its termination by the AHRC: Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573; (2000) 105 IR 153; Reynolds v JP Morgan Administrative Services Australia Ltd (No 2) [2011] FCA 489; (2011) 193 FCR 507; (2011) 280 ALR 612 at [20]-[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. Resort cannot therefore be had to the AHRC complaint to determine what the material facts of the disability discrimination alleged in these proceedings might be.
In Ellis v Green Tower Pty Ltd Trustee for the Green Tower Trust (Trading as Hopscotch Garden Centre and Tearooms) [2017] FCCA 1390 (“Green Tower”) (delivered on 22 June 2017) the Court dismissed an application by Mr Ellis to set aside an earlier order dismissing his originating application for non-appearance. In so doing the Court, as it was obliged to do, considered the merit of the originating application which had been dismissed and made specific reference to:
a)the necessity in a claim of disability discrimination to identify the disability said to be the reason for less favourable treatment, citing the judgment of the Full Court of the Federal Court in Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 101 ALD 459; [2008] EOC 93-493 (“Gama”): Green Tower at [57] per Judge Lucev;
b)the judgment of the Federal Court in Gill v iiNet Limited [2015] FCA 1029 (“Gill”) where the Federal Court found at [17] per North J that the applicant had had three opportunities to articulate a claim, and that it was “unjust and unfair to expect that the respondent continue to attend the proceedings in the Court for a claim which is not put forward in a way which either conforms to the requirements of the Rules or makes any sense”: Gill at [17] per North J, set out in Green Tower at [58] per Judge Lucev;
c)on an application, out of time, for leave to appeal against the interlocutory decision in Gill the Federal Court found that there was no proper Statement of Claim sought to be filed with the Federal Court and therefore Mr Gill had failed to comply with the relevant order requiring him to file a Statement of Claim: Gill v iiNet Limited [2016] FCA 1273 (“Gill-Leave to Appeal”) at [39] per Kenny J, referred to in Green Tower at [61] per Judge Lucev; and
d)the importance of bearing in mind that Mr Ellis bore the onus of proof generally: Green Tower at [62] per Judge Lucev.
In Green Tower at [63]-[64] per Judge Lucev the Court then observed that:
63. In this case, at the time of the May 2016 Hearing there was:
a) no statement nor any evidence as to the disability alleged to be suffered by Mr Ellis, and, therefore, no means of determining whether he suffered from a disability as defined in s.4(1) of the DD Act;
b) no evidence as to how any disability that Mr Ellis suffered related to the discrimination alleged;
c) no statement of whether the discrimination alleged arose under s.5 of the DD Act (as direct discrimination) or s.6 of the DD Act (as indirect discrimination), and consequently no setting out of the less favourable treatment alleged or any alleged comparators (for the purposes of direct discrimination under s.5 of the DD Act), or the facts which constitute a requirement or condition which is not reasonable in the circumstances of the case and which is likely to have the effect of disadvantaging a person with the relevant disability (for the purposes of indirect discrimination under s.6 of the DD Act);
d) no sufficient degree of specificity of the material facts so as to define the issues and inform Green Tower in advance of the case that it may have to meet: Chang v CST Minerals Lady Annie Pty Ltd [2015] FCA 620 at [19]-[21] per Mortimer J; Shurat Hadin, Israel Law Centre v Lynch (No 2) [2014] FCA 413 at [36]-[37] per Robertson J; Gill at [16]-[17] per North J;
e) no medical or allied health professional evidence of a kind required to establish the nature of any disability that Mr Ellis has, or the extent of that disability, and its relationship to the discrimination allegedly suffered: Gama at [89]-[92] per French and Jacobson JJ (for practical examples of the kind of evidence required see the evidence of psychiatric illness alleged to give rise to a phobia preventing a person from sitting examinations in Sklavos v Australasian College of Dermatologists [2016] FCA 179 at [28]-[83] per Jagot J, and in relation to, amongst other things, access to school premises, at [132] (as to the adequacy of toilet facilities); [210] (as to the size of disabled car bays); and [225] (as to the steepness of ramps) per Judge Lucev in Burns v Director-General of the Department of Education (No 2) [2015] FCCA 1769, a case in relation to alleged discrimination against a profoundly disabled child).
64. In all of the above circumstances, there was no prospect that any order other than to dismiss the application would have been made at the May 2016 Hearing because there was no evidence of Mr Ellis’ disability, the nature of the disability, or the effect of that disability in relation to the circumstances alleged to have occurred in or about Green Tower’s premises, and that was the case whether Mr Ellis attended personally or by phone.
In Ellis v Swan Taxis Pty Ltd [2017] FCCA 1795 (“Swan Taxis”) (delivered 2 August 2017), the Court dismissed Mr Ellis’ originating application on the basis of Mr Ellis’ non-appearance. In Swan Taxis at [3] per Judge Street the Court observed that:
3. The applicant's application seeking relief for alleged disability discrimination is completely wanting in any proper identification of any differential treatment or conduct engaged in allegedly on the basis of the applicant's disability. The applicant's complaint, at its highest, concerns alleged erroneous information in respect of the hire cost and rate for use of a multipurpose taxi that can carry wheelchair people. That erroneous information in relation to the pricing did not reflect any conduct revealing any issue of alleged contravention of the Disability Discrimination Act 1992 (Cth).
The Court went on in Swan Taxis at [6] per Judge Street to indicate that the affidavit evidence and submissions put on by Mr Ellis in that case “identified no basis upon which there could be said to be any arguable issue of contravention of the Disability Discrimination Act 1992 (Cth)”.
In Ellis v Kanyana Wildlife Rehabilitation Centre Inc [2017] FCCA 2028 (“Kanyana - Set Aside Application”) (delivered on 9 August 2017) the Court dismissed an application by Mr Ellis to set aside the dismissal of his application arising from the orders made in Kanyana.
In Kanyana - Set Aside Application the Court, having referred to the judgment in Kanyana, observed as follows at [24]-[25] per Judge Smith:
24. As his Honour explained at [48] and [49], the statement of claim does not disclose a case of disability discrimination, by reason of the fact that it does not identify the applicant's disability, or identify how the alleged discrimination is based on the particular disability. That is, that the applicant was discriminated against because of a disability. In my view, for those two reasons, there was never any reasonable prospect of success in them, and so gives rise to the power of the Court to summarily dismiss the proceedings under s 17A of the Act.
25. Unlike the original statement of claim, there is now an allegation of certain conditions said to have been suffered by Mr Ellis. To that extent, the current state of the pleadings is different to those which were before Judge Lucev. Nevertheless, there remains the fact that there is no stated connection between that disability and the discrimination said to have been engaged in by the respondent. That is a fatal flaw in the proceedings. Without such a connection, the proceedings cannot succeed.
Each of the nine judgments of this Court referred to at [9]-[23] above were delivered within a period of 20 months prior to Mr Ellis filing his Statement of Claim in these proceedings.
Consideration
There is some degree of overlap in considering whether the Originating Application ought to be dismissed for non-compliance pursuant to r.13.03B(1)(a) or summarily dismissed pursuant to r.13.10(a), or both, of the FCC Rules, given that the former relates to an order in respect to which Mr Ellis was ordered to file a Statement of Claim “setting out the basis for his claim”, and the latter concerns whether or not there is a reasonable prospect of success on the Statement of Claim as filed.
On no reasonable reading of the Statement of Claim filed by Mr Ellis can it be said that it discloses any cause of action in discrimination. The Court particularly notes that in the Statement of Claim there is:
a)no plea as to when and where the alleged discrimination under the Disability Discrimination Act 1992 (Cth) (“DD Act”) actually took place;
b)no pleading as to the extent of the disability that Mr Ellis might have, and its relationship or connection to the disability discrimination allegedly suffered;
c)no statement as to how the alleged discrimination arises, and whether it is under s.5 of the DD Act (direct discrimination) or s.6 of the DD Act (indirect discrimination), and no setting out of the less favourable treatment alleged or any alleged comparators (for the purposes of direct discrimination under s.5 of the DD Act), or the facts which constitute a requirement or condition which is not reasonable in the circumstances of the case and which is likely to have the effect of disadvantaging a person with the relevant disability (for the purposes of indirect discrimination under s.6 of the DD Act); and
d)no specificity of the material facts so as to define the issues and inform Virgin Australia in advance of the case that it has to meet.
Mr Ellis has failed to observe the most basic of legal requirements for prosecuting his claim, even after being made aware in other matters in this Court that, at the very least, he needs to articulate a claim in some proper and meaningful way. Mr Ellis’ involvement as a party in other matters in this Court demonstrates he has, or ought to have, a sufficient understanding of what is required of him in preparing the Statement of Claim. Rather than reflecting on the need for specificity in his claim for discrimination and doing something about it by making some attempt to articulate his complaints of discrimination, the Statement of Claim contains a litany of generalised complaints against Virgin Australia and a series of unsupported demands. It is not the case that Mr Ellis does not know what he should state in his Statement of Claim. Even though he is unrepresented, he ought to nonetheless know that he should have filed a Statement of Claim setting out the basis for his claim in discrimination. The Court also observes that Mr Ellis has previously had applications in this Court dismissed for non-compliance with orders of the Court: see [9] and [15] above.
In the above circumstances, the Statement of Claim:
a)is no proper Statement of Claim because it has failed to comply with the relevant order requiring the filing of a Statement of Claim setting out the basis for Mr Ellis’ claim: Gill-Leave to Appeal at [39] per Kenny J; and
b)has no reasonable prospect of success as presently pleaded.
In relation to whether Mr Ellis ought to be given leave to re-plead the Court has had regard to the history of litigation involving Mr Ellis’ claims of disability discrimination in this Court as set out at [9]-[24] above, and to Mr Ellis’ conduct in these proceedings.
The history of Mr Ellis’ extensive litigation in this Court reveals that the Court has on numerous occasions set out for Mr Ellis what is required to be inserted in a Statement of Claim. It suffices to observe that on no occasion that the Court is aware of has Mr Ellis successfully resisted an application to strike out a Statement of Claim that he has drafted, and no case has gone forward to hearing based on a Statement of Claim in proper form. The Court is aware that on a number of occasions Mr Ellis has been afforded the opportunity of a referral for pro bono assistance under Part 12 of the FCC Rules, but, for whatever reason, no pro bono assistance has been forthcoming, and in particular, none has been forthcoming in relation to the drafting of a Statement of Claim in any of the matters in which Mr Ellis is engaged. If Mr Ellis has genuine causes of action then it appears that he requires the assistance of a lawyer before they will emerge: 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. The Court simply has no confidence that were Mr Ellis to be allowed to re-plead his Statement of Claim that the further Statement of Claim would be drafted in a manner such as to disclose a proper cause of action. For that reason, the Court takes the view that leave to re-plead ought not be granted, and the Originating Application ought to be dismissed.
The Court now turns to Mr Ellis’ conduct in this matter. Mr Ellis’ conduct towards the lawyers for Virgin Australia in these proceedings has been reprehensible. The language and attitude manifested by Mr Ellis’ January 2018 and 3 April 2018 Emails is such that it is a factor to which some weight must be given when considering whether to allow the matter to be re-pleaded. There can be no doubt, that as the Court observed in Ellis v Rottnest Lodge (1989) Pty Ltd trading as Rottnest Lodge [2017] FCCA 84 (“Rottnest Lodge (No 1)”) Mr Ellis’ Emails “as unnecessary as it is, is arguably no worse than other material to which lawyers might sometimes be exposed in a variety of areas of civil law, albeit that such material is not usually directed at the lawyers concerned”: Rottnest Lodge (No 1) at [23] per Judge Lucev. In that case Mr Ellis had engaged in what the Court characterised as a “vile rant without much forethought”: Rottnest Lodge (No 1) at [21] per Judge Lucev whereby in an email addressed to a legal assistant at the solicitors for the respondent in those proceedings, he expressed the hope that the legal assistant would soon be killed, that she was a dumb and violent whore, that she should crash her luxury car into a wall at 200 kilometres an hour while drunk to see if she could survive, and suggested that the legal assistant undertake certain anatomical reconstructive surgery.
In awarding indemnity costs in Silver Vision (No 2) the Court had regard to an affidavit by Mr Ellis in which he disparaged the solicitor for the respondents in those proceedings by reference to that solicitor, plainly of Asian ethnicity, being “a true foreigner in my country”, “taking away my race rights” and that the lawyer and directors of the respondent company were “from foreign and incompatible regions of Earth and are acting outside of humanity”: Silver Vision (No 2) at [10] per Judge Lucev. In Silver Vision (No 2) the Court referred to a directions hearing in that matter where Mr Ellis had said of a lawyer appearing for the respondent that he was a “… dickhead … appearing for another smackface … [a] traitorous asshole working for smackfaces” and went on to refer to the respondent as “not even Australians”, before describing the lawyer as a “piece of shit”: Silver Vision (No 2) at [24] per Judge Lucev, before then asking whether the lawyer was one of the presiding Judge’s “gay lovers on the weekend”: Silver Vision (No 2) at [24] per Judge Lucev.
In Swan Taxis at [9] per Judge Street, the Court observed that a communication by Mr Ellis with the Chambers of the presiding Judge in that matter, in relation to his request for an audio-link, gave rise to a potential offence under s.474.17 of the Schedule to the Criminal Code Act 1995 (Cth) by reason of what the Court there took to be a threat of an allegation of corruption being levelled against the Court.
In Ellis v Silver Vision Pty Ltd Trading as Arirang Korean BBQ Restaurant & Café) (No 3) [2018] FCCA 1024 (“Silver Vision (No 3), an extempore judgment delivered on 24 April 2018, the day after the hearing of the present Application in a Case, Mr Ellis did appear by telephone in proceedings where an arrest warrant was sought by the respondent by reason of Mr Ellis’ failure to attend Court pursuant to a means inquiry summons that had been served upon him. In those proceedings Mr Ellis threatened to “have someone kill that fucker”, that being a reference to the lawyer for the respondent in those proceedings: Silver Vision (No 3) at [4] per Judge Lucev.
In Ellis v Silver Vision Pty Ltd trading as Arirang Korean BBQ Restaurant & Café [2018] FCA 333 at [5] per McKerracher J the Federal Court observed of Mr Ellis’s conduct, as follows:
It must be said, without presently descending to particulars, that whilst Mr Ellis has been very polite to me up to this point, he has launched scathing and vituperative attacks on his opponents and, particularly, the lawyers, even accusing them (usually) of criminal activity of an entirely unspecified nature. The invective he has unleashed in such attacks has been entirely unwarranted and raises serious questions as to whether the Court process is being appropriately used.
Mr Ellis’ conduct in the above matters (and the Court observes that there are other examples which could be given) is such that it, together with Mr Ellis’ conduct in these proceedings, leads the Court to the view that Mr Ellis ought not be given leave to re-plead, as to do so would be unfair to the lawyers involved in these proceedings who ought not have to be further exposed to the reprehensible conduct that they have already been exposed to in these proceedings. Mr Ellis’ conduct over a period of time in other proceedings in this Court leads the Court to the view that it is unlikely that his conduct will alter or change. Whilst it is not a decisive consideration, the conduct issue does lend weight to, and reinforces the view that the Court has otherwise arrived at, independently of the conduct issue, that leave to re-plead ought not be granted.
It follows from all of the matters set out above that the Originating Application ought to be dismissed.
Adjournment - Mr Ellis’ 3 April 2018 Email
Mr Ellis’ 3 April 2018 Email sought an adjournment of these proceedings. At hearing the Court indicated that it was not prepared to grant an adjournment, and that it would provide reasons for that refusal in due course: Transcript at page 3. The terms of the 3 April 2018 Email were relevantly as follows:
I have not been able to finalize anymore documents in any of the the time allotted by the court, as I have been far too unwell, suffering catastrophic falls and injuries, while in transit to the eastern states and have been made homeless by the state of WA, kicked out of a government house for simply taking out a legal challenge on the WA GOVERNMENT.
The court surely has powers to now adjourn all of my federal court cases and wait until I am housed, have adequate medical aid and can set up reasonable at home computer systems so that I can function in the real world.
These issues are the result of the very things that JUDGE LUCEV has been warned would start happening to me if the court does not allow the disabled to be acknowledged as ignored almost all of the time in society, then punished if we complain or fight back to regain our lives and liberty lost.
I am eventually taking out a law suit on HREOC itself, as it is a weak body that puts the disabled last and I can prove it too. This is truly a sick country and it is time that HREOC head office was in Canberra and not Sydney, as that city is a complete and inhumane dump for the disabled and this allegedly prestigious office deserves a better Federal location.
Surely the JUDGE has powers to stand up for natural justice and my liberty and allow an adjournment of this and other cases to be frozen for at least another 6 months or until I can write to the court and state when I am in a stable life, if I am alive at the end of this month, if I have been left unable to continue court cases in the confines of realism and if my only case at present is simply trying to survive violence
and health collapse being forced into the street to fend for myself and look after my ailing disabled health.
I cannot possibly lodge any official court forms about what I have stated above, as I just do not have the ability to do so at this stage.
The Court exercises a broad discretion in relation to whether or not it adjourns: Myers v Myers [1969] WAR 19 at 21 per Jackson J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [9]-[10] per Judge Lucev. The primary consideration remains the interests of the administration of justice, and the Court also takes into account issues associated with case management and wastage of public resources, and refers generally to the principles set out by the High Court in that regard in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14. In this case:
a)Mr Ellis was invited to file an Application in a Case supported by an affidavit to seek an adjournment if he did not obtain consent orders for adjournment, but did not do so;
b)there was therefore no proper application for an adjournment before the Court and no evidence of the matters to which Mr Ellis adverted in the 3 April 2018 Email;
c)Mr Ellis was plainly capable of the preparation and forwarding of documents electronically, as can be seen by reference to his 13 April 2018 Email: see [8] above, an email sent to Virgin Australia’s solicitors mid-way between the time at which he sent the 3 April 2018 Email and the 23 April 2018 hearing;
d)Mr Ellis was plainly capable of appearing by telephone to make an oral application for adjournment even if he had not filed an Application in a Case for adjournment supported by an affidavit, as he appeared in this Court in the proceedings giving rise to the judgment in Silver Vision (No 3) the day after the hearing of the Application in a Case in these proceedings, but Mr Ellis did not appear in these proceedings, and has provided no reason as to why he could not appear by telephone (as he did in the Silver Vision (No 3) proceedings) and seek to put his adjournment application orally;
e)adjournment of the present Application in a Case for dismissal of the Originating Application would have resulted in a significant delay, as it is likely that the Application in a Case would have been re-listed in October 2018 when the Originating Application was listed for a four day trial, and which would have resulted in the adjournment of that four day trial until the Application in a Case was disposed of, with the consequence that the four day trial would have been adjourned until at least mid-2019 at the earliest, and possibly into 2020;
f)a delay of the order suggested above is contrary to the objects of the Federal Circuit Court of Australia Act 1999 (Cth) and FCC Rules: FCCA Act, ss.3 and 42; FCC Rules, r.1.03; and
g)finally, Mr Ellis’ conduct in these proceedings has been such that, for reasons set out above, the lawyers for Virgin Australia ought not have to be continued to be exposed to the type of conduct exhibited by Mr Ellis in these proceedings.
In all of the above circumstances, to the extent that there was an adjournment application by Mr Ellis before it, the Court did not grant an adjournment of these proceedings at the hearing on 23 April 2018.
Conclusions and orders
The Court has concluded that:
a)to the extent that there was an adjournment application before the Court by reason of Mr Ellis’ 3 April 2018 Email, that application for an adjournment be dismissed; and
b)pursuant to rr.13.03B(1)(a) and 13.10(a) of the FCC Rules the Originating Application filed 9 January 2017 be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 14 June 2018
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