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Ellis v Virgin Australia Airlines Pty Ltd

Ellis v Virgin Australia Airlines Pty Ltd

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Case Copied 14 June 2018 46 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

ELLIS v VIRGIN AUSTRALIA AIRLINES PTY LTD

[2018] FCCA 1535

Catchwords:
HUMAN RIGHTS – Respondents’ Application in a Case for dismissal of Application – principles – no cause of action in statement of claim – whether non-compliance with Court orders – whether any reasonable prospect of success – effect of prior Court observations in relation to pleading of alleged disability discrimination by the applicant in other cases – effect of applicant’s reprehensible conduct in this matter – effect of applicant’s conduct in other matters.

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 FJM Property Pty Ltd [2016] FCCA 808
Ellis v Green Tower Pty Ltd Trustee for the Green Tower Trust (Trading as Hopscotch Garden Centre and Tearooms) [2017] FCCA 1390
Ellis v Kanyana Wildlife Rehabilitation Centre Inc [2017] FCCA 89
Ellis v Kanyana Wildlife Rehabilitation Centre Inc [2017] FCCA 2028
Ellis v Left Bank Holdings Pty Ltd [2017] FCCA 90
Ellis v Silver Vision Pty Ltd (No 2) [2017] FCCA 151; (2017) 318 FLR 111
Ellis v Silver Vision Pty Ltd Trading as Arirang Korean BBQ Restaurant & Café) (No 3) [2018] FCCA 1024

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 Rottnest Lodge (1989) Pty Ltd trading as Rottnest Lodge (No 2) [2017] FCCA 190
Ellis v Swan Taxis Pty Ltd [2017] FCCA 1795
Ellis v Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust T/A Rottnest Express & Ors [2017] FCCA 88

Ellis v Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust T/A Rottnest Express & Ors (No 2) [2017] FCCA 960
Gill v iiNet Limited [2015] FCA 1029
Gill v iiNet Limited [2016] FCA 1273
Myers v Myers [1969] WAR 19
MZZZL v Minister for Immigration & Anor [2014] FCCA 1309
Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 101 ALD 459; [2008] EOC 93-493
Sims v Jooste QC [2013] WASCA 245
Sims v RM Capital Pty Ltd & Anor [2014] FCCA 2977

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 1535
Decision Date: 14 June 2018

CaseChat Overview and Summary

The applicant, Ellis, brought proceedings against the respondent, Virgin Australia Airlines Pty Ltd, alleging disability discrimination. The respondent applied for the dismissal of the application. The matter came before Judge Antoni Lucev in the Federal Court of Australia.

The primary legal issues before the Court were whether the applicant's application disclosed a cause of action, whether there had been non-compliance with Court orders, and whether the application had any reasonable prospect of success. The Court also considered the effect of prior observations made in relation to the applicant's pleading of disability discrimination in other cases, as well as the applicant's reprehensible conduct in the present matter and in other proceedings. The Court also considered an application for an adjournment made by the applicant.

In dismissing the application, the Court found that the statement of claim did not disclose a cause of action and that there was no reasonable prospect of success. The Court noted that the applicant had failed to comply with Court orders and that their conduct throughout the proceedings had been reprehensible. The Court also took into account the applicant's history in other litigation. The application for an adjournment was refused.

The Court ordered that the application be dismissed.

Orders