Ellis v Wadjemup Trading (No.3)
[2018] FCCA 3075
•16 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v WADJEMUP TRADING PTY LTD ATF WADJEMUP UNIT TRUST T/A ROTTNEST EXPRESS & ORS (No.3) | [2018] FCCA 3075 |
| Catchwords: PRACTICE AND PROCEDURE – Disability discrimination claim – application in a case to strike out statement of claim – alternative application in a case for summary dismissal of claim – whether failure to disclose a reasonable cause of action – whether pleading irrelevant or embarrassing – whether any reasonable prospect of success. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), ss.46PH, 46PO |
| Cases cited: Allstate Life Insurance Company v Australian & New Zealand Banking Group Ltd (1994) 217 ALR 226 Ellis v Rottnest Lodge (1989) Pty Ltd trading as Rottnest Lodge (No 2) [2017] FCCA 190 |
| Applicant: | TROY ELLIS |
| First Respondent: | WADJEMUP TRADING PTY LTD ATF WADJEMUP UNIT TRUST T/A ROTTNEST EXPRESS |
| Second Respondent: | FREMANTLE PORT AUTHORITY |
| Third Respondent: | ROTTNEST ISLAND AUTHORITY |
| File Number: | PEG 81 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 23 April 2018 |
| Date of Last Submission: | 23 April 2018 |
| Delivered at: | Perth |
| Delivered on: | 16 November 2018 |
REPRESENTATION
| For the Applicant: | No appearance |
| For the Third Respondent: | Mr A Mason |
| Solicitors for the Third Respondent: | State Solicitors Office |
ORDERS
The proceeding as against the third respondent be dismissed pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 81 of 2016
| TROY ELLIS |
Applicant
And
| WADJEMUP TRADING PTY LTD ATF WADJEMUP UNIT TRUST T/A ROTTNEST EXPRESS |
First Respondent
| FREMANTLE PORT AUTHORITY |
Second Respondent
| ROTTNEST ISLAND AUTHORITY |
Third Respondent
REASONS FOR JUDGMENT
Application in a Case
By an Application in a Case filed on 28 February 2018 the third respondent in these proceedings, the Rottnest Island Authority (“RIA”), applies for orders as follows:
1. The whole of the Statement of Claim dated 9 January 2018 be struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) on the bases that it does not disclose a reasonable cause of action and it contains embarrassing material.
2. Alternatively, the proceeding as against the Third Respondent be dismissed pursuant to r 13.10 of the Federal Circuit Court Rules 2001 (Cth).
3. Costs be awarded in favour of the Third Respondent.
The Application in a Case is supported by an affidavit made by Giselle Alexandra di San Marzano affirmed on 27 February 2018 and filed on 28 February 2018 (“di San Marzano Affidavit”).
The proceedings were commenced by an application filed pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) alleging unlawful discrimination, seemingly on the basis of discrimination contrary to the Disability Discrimination Act 1992 (Cth) (“DD Act”) (“Application”).
Factual and procedural background
The relevant factual and procedural background to this matter is as follows:
a)the Application has been dismissed against the first and second respondents, Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust T/A Rottnest Express (“Rottnest Express”) and Fremantle Port Authority (“FPA”) respectively, by reason of Mr Ellis’ failure to comply with orders of the Court: specifically, the Application was dismissed as against Rottnest Express on 16 June 2016, and as against the FPA on 24 January 2017;
b)on 20 December 2017 Mr Ellis was ordered to file a Statement of Claim against the RIA by 14 February 2018;
c)Mr Ellis filed a Statement of Claim against the RIA on 9 January 2018, and it is convenient to set out the paragraphs constituting it in full (and transcribed verbatim):
1. My pleadings are that I have been DISCRIMINATED against on DISABILITY grounds by the ROTTNEST ISLAND AUTHORITY, multitudes of wealthy mates with interests in ROTTNEST ISLAND and the WA GOVERNMENT AGENCIES attached to this initial court action.
2. This is one of a multitude of DISABILITY DISCRIMINATION COMPLAINTS that I have lodged with HREOC against WA GOVERNMENT AGENCIES, for DISABILITY DISCRIMINATION and if it was not for an INCOMPETENT PRO BONO LAWYER from VICTORIA, who I will soon lodge a complaint to the VICTORIA LEGAL BOARD for doing a shonky deal with the WA STATE SOLICITORS OFFICE, I would have taken the WA GOVER NMENT to FEDERAL COURT myself and would have demanded much more than the disgraceful $5500 I received in a CON ARTIST DEAL OUT OF COURT SETTLEMENT.
3. 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 and advanced safety features are just not available at ROTTNEST ISLAND across the board.
4. The ROTTNEST ISLAND AUTHORITY has been very dishonest in their dealings with HREOC in regards to my knowledge of laws and their lacking of disabled accessibility, safety and inclusion, 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.
5. The RULE OF LAW, have all been thrown in the bin by the ROTTNEST ISLAND AUTHORITY and the WA GOVERNMENT, as this government withholds multitudes of services from me, then use WA POLICE and MENTAL HEALTH ACT as a FLASE FLAG TORTURE WEAPON of power, fear and abuse whenever I fight back in words, then blame me for being a disabled person, as a means to VICTIMIZE me for not only taking on ROTTNEST ISLAND AUTHORITY, media, corporate fat cats, WA GOVERNMENT AGENCIES attached to this action and other cases heard in this court against this same government, as it is inhumane, incompetent and refuses to give me the NDIS for god's sake, as they lack compassion and safety for the most vulnerable and poorly treated in Australia, the DISABLED, who are systemically ignored by the entire society and the WA GOVERNMENT, as even stated by CENTRELINK themselves earlier in 2017.
6. It does become harder for me to remember every single matter that upset me when I visited ROTTNEST ISLAND, with more memories and issues coming to my mind as this court case progress, however I believe I have mentioned the most pressing issues.
7. There are easier ways, in this day of SOCIALIST, LEFT WING, PC BRIGADE, deluded double standards that are devoid of all spirit, logic, intellect, consideration, compassion and care of the GENERAL COMMUNITY, with MEDIA, CORPORATE, LEGAL & GOVERNMENT pushing PC DRIVEL to SCAPEGOAT the MIND CONTROLED, INSECURE, DUMB & PARANOID MASSES into SUBMISSION, covering up their own crimes, which destroys and undermines the lives of the majority in entirety of DISABLED, ABORIGINAL & ELDERLY AUSTRALIANS more, with DO IT OR ELSE VIOLENCE, to support MINORITIES, for reasons that defy GOD, INTELLECT & GOOD TASTE, such as the racist black, brown and yellow foreigners, disabled and family health budget losses for homosexuals and violent, abusive females, high security, technology, innovation and talks of disability access, discrimination, UNIVERSAL ACCESS and litigation.
8. DISABLITY ACCESS for me is dangerous and cumbersome for someone in my disabled condition of BECKERS MUSCULAR DYSTROPHY.
9. The best response to my complaint was for the ROTTNEST ISLAND AUTHORITY and WA GOVERNMENT was why not spend millions more on countless advertisements, marketing and plans for ROTTNEST ISLAND, to help wealthy corporates, foreigners, film stars, ditsy models and the able bodied first and foremost, which has taken away my liberty to go wherever and whenever I chose, which is a joke, as disabled access remains excluded.
10. I seek $1 MILLION in compensation, a public apology and an explanation for why nothing has been done about rectification of this complaint with HREOC.
11. I would still entertain the possibly of a negotiation or a mediation, however I doubt in my experience of these matters that this will happen to my satisfaction, however the WA GOVERNMENT is a leopard that has never changed its spots.
12. The WA GOVERNMENT 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.
d)on 15 January 2018 the RIA’s lawyers wrote to Mr Ellis concerning the Statement of Claim’s contents (“RIA Letter”): di San Marzano Affidavit at Attachment GDSM1. The RIA Letter was in the following terms:
I refer to the Statement of Claim received on 10 January 2018. I write to raise an objection to the contents of that document.
In my view the Statement of Claim in its current form is deficient in that it does not disclose any cause of action and contains irrelevant and embarrassing material.
I invite you to file an Amended Statement of Claim within the next 14 days (ie by COB 29 January 2018). Failing this, I anticipate receiving instructions to file an application to strike out the Statement of Claim and dismiss the action.
e)Mr Ellis’ responses to the RIA Letter: see di San Marzano Affidavit at Attachment GDSM2, comprise two emails sent at 4.05pm and 4.07pm on 15 January 2018 (“Mr Ellis’ Emails”) the terms of which were, respectively, as follows:
i)“CRAP IT DOES FOOL AND NO !!!!!!!”; and
ii)“THE ONLY THING THAT IS IRRELEVANT IS YOU BEING ALLOWED TO BE ALIVE IN THIS COUNTRY !!!!!”;
f)on 2 March 2018 the Court ordered that Mr Ellis file and serve an outline of submissions in respect to RIA’s Application in a Case, but Mr Ellis did not do so; and
g)on the hearing of the Application in a Case on 23 April 2018 Mr Ellis did not appear (endeavours to contact Mr Ellis on a telephone number provided by him having been unsuccessful immediately before the matter was called, and the matter having been called outside the courtroom).
Summary dismissal
In the circumstances it is convenient to deal firstly with the Application in a Case as it relates to summary dismissal of the Application.
The Court’s power of summary dismissal is derived from s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and r.13.10 of the Federal Circuit Court Rules 2001(Cth) (“FCC Rules”). Rule 13.10 of the FCC Rules provides as follows:
The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim;…
Rule 13.10 of the FCC Rules replicates part of s.17A of the 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; (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 the RIA 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 Reeves J.
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 as:
a)some of the cases refer to the relevant principles in relation to the summary dismissal of an application and striking out of a statement of claim; and
b)they are relevant to the question of whether or not leave to re-plead ought to be granted to Mr Ellis.
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 Ellis v Kanyana Wildlife Rehabilitation Centre Inc [2017] FCCA 89 (“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 Silver Vision Pty Ltd trading as Arirang Korean BBQ Restaurant & Café [2018] FCA 333 an application for extension of time for leave to appeal from Silver Vision (No 2) was dismissed.
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 matters 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 in 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 … 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.
An application for an extension of time for leave to appeal from Green Tower was dismissed by the Federal Court in Ellis v Green Tower Pty Ltd Trustee for the Green Tower Trust (Trading as Hopscotch Garden Centre and Tearooms) [2018] FCA 339 (“Green Tower Appeal”), and in which the Federal Court observed that the judgment in Green Tower was “undoubtedly correct”: Green Tower Appeal at [23] per McKerracher J.
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 made by Mr Ellis in that case “identified no basis upon which there could be said to be any arguable issue of contravention of” the DD Act.
In Ellis v Swan Taxis Pty Ltd [2017] FCA 1542 an application for extension of time for leave to appeal Swan Taxis was dismissed by the Federal Court.
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.
In Ellis v Kanyana Wildlife Rehabilitation Centre Inc [2017] FCA 1543 the Federal Court dismissed an application for an extension of time for leave to appeal from Kanyana – Set Aside Application.
The Court notes that each of the nine judgments of this Court referred to at [13]-[26] above were delivered within a period of 20 months prior to Mr Ellis filing his Statement of Claim in these proceedings.
A statement of claim requires a claimant to state the material facts on which the claim is based, so as to enable the respondent to know, with sufficient clarity, the case which it is required to meet. That is the fundamental objective of a pleading: Winters v Fogarty [2017] FCA 51 (“Winters”) at [15] per Bromberg J. At its highest, the Statement of Claim broadly states that:
a)"UNIVERSAL ACCESS and advanced safety features are just not available at ROTTNEST ISLAND across the board": Statement of Claim at [3];
b)disability access is "dangerous and cumbersome" for someone in Mr Ellis’ disabled state: Statement of Claim at [8]; and
c)"disabled access remains excluded": Statement of Claim at [9].
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 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 the RIA 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 the RIA (and others) and a series of general and 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 a litigant in person, he ought to nonetheless know, having regard to the observations made in the cases cited at [13]-[27] above, that he should have filed a Statement of Claim setting out the basis for his claim of discrimination.
In all respects, the Statement of Claim has failed to plead the facts relied on to found assertions of discrimination (and other improper conduct) on the part of the RIA. Further, it is plain that no reasonable amendment can cure these defects in the Statement of Claim.
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.
For the above reasons the Statement of Claim fails to disclose a cause of action, either at all, or with a reasonable prospect of success. The Court will therefore dismiss the Application pursuant to r.13.10(a) of the FCC Rules because Mr Ellis has no reasonable prospect of successfully prosecuting the Application.
Strike out
The RIA submits that the Statement of Claim should be struck out because it:
a)discloses no reasonable cause of action; and
b)is irrelevant and embarrassing.
The FCC Rules do not provide for a specific power to strike out pleadings, but if in a particular case the FCC Rules are insufficient, the Court may apply the FC Rules in whole or in part as necessary: FCC Rules, r.1.05(2), and, thus, this Court has power to strike out a pleading, or portions of a pleading, under r.16.21 of the FC Rules. Rule 16.21 of the FC Rules provides:
(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.
The relevant principles in relation to an application under r.16.21 of the FC Rules were outlined in Eggerth v EPI International Pty Ltd [2017] FCA 1547 at [3]-[5] per Derrington J, as follows:
a)the power in r.16.21 of the FC Rules to strike out a pleading or portions of a pleading is discretionary: Australian Competition & Consumer Commission v Pauls Ltd [2000] ATPR 41-747 (“Pauls Ltd”) at [10] per O'Loughlin J, cited in Radisich v McDonald [2010] FCA 762; (2010) 198 IR 244 (“Radisich”) at [20] per Gilmour J;
b)the power is one that should be used sparingly: Radisich at [20] per Gilmour J;
c)generally, the power will only be used in a plain and obvious case: Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; (2012) 203 FCR 325 (“Polar Aviation”) at [43] per Perram, Dodds‑Streeton and Griffiths JJ, adopting the reasons in Allstate Life Insurance Company v Australian & New Zealand Banking Group Ltd (1994) 217 ALR 226 at 236 per Beaumont J; and
d)ultimately, the question will turn on whether it is necessary to strike out a pleading in the interests of justice: John Holland Pty Ltd v The Maritime Union of Australia [2009] FCA 437 at [60] per Graham J.
A “reasonable cause of action” means one with some chance of success if regard is had only to the allegations in the pleadings relied upon by the claimant: Polar Aviation at [43] per Perram, Dodds-Streeton and Griffiths JJ. For the reasons set out at [30]-[34] above in relation to why there is no reasonable prospect of success arising from the Statement of Claim in its present form, it also follows that there is not a reasonable cause of action with some chance of success: indeed, on the basis of the present Statement of Claim Mr Ellis has no chance of success: see [34] above. The Statement of Claim should, therefore, be struck out as failing to disclose a reasonable cause of action: FC Rules, r.16.21(1)(e).
A pleading may be embarrassing and may be struck out pursuant to r.16.21(1)(d) of the FC Rules if it is susceptible to various meanings, contains inconsistent allegations, contains alternatives which are confusingly intermixed, contains irrelevant allegations which will tend to increase expense, or is unintelligible or vague: Winters at [16] per Bromberg J; Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192 at [21] per Markovic J; Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22] per Edmonds J.
The Statement of Claim, when read as a whole, is substantially unintelligible insofar as it purports to set up a cause of action. The allegations which, at their highest, are the closest to material facts which might support a cause of action are, nonetheless, incredibly vague. The Statement of Claim refers to "UNIVERSAL ACCESS and advanced safety features" and to "DISABILITY ACCESS" but does not further specify the nature of those matters.
The Statement of Claim also contains various allegations irrelevant to a cause of action in discrimination, such as alleged corruption in the Western Australian Government and its authorities, and the conduct of lawyers acting for the Western Australian Government, or the conduct of lawyers generally.
In the circumstances the Statement of Claim should be struck out as being embarrassing: FC Rules, r.16.21(1)(d).
If all that is irrelevant and embarrassing is stripped out of the Statement of Claim all that remains are isolated references to “UNIVERSAL ACCESS and advanced safety features” and to “DISABILITY ACCESS” being “dangerous and cumbersome” and “excluded”: see [29] and [40] above, but without further specification of the nature of those matters or indeed any hint, however general, as to what specifically is meant or being referred to. In the circumstances, this further confirms that the Statement of Claim should be struck out as failing to disclose a reasonable cause of action: FC Rules, r.16.21(1)(e).
The Statement of Claim should be struck out because it:
a)fails to disclose a reasonable cause of action: FC Rules, r.16.21(1)(e); and
b)is embarrassing: FC Rules, r.16.21(1)(d).
The power to strike out all out all or part of a pleading under r.16.21 of the FC Rules should only be exercised where it is clear that no reasonable amendment can cure the alleged defect: Polar Aviation at [42] per Perram, Dodds-Streeton and Griffiths JJ. This is such a case: see [32]-[34] and [38] above, and the Statement of Claim should be struck out in its entirety.
Whether leave to re-plead ought to be granted
The RIA submits that Mr Ellis should not be granted leave to re-plead his case because:
a)Mr Ellis has had an extensive amount of time, namely over two years, to prepare and articulate his case;
b)Mr Ellis has had a number of opportunities to appropriately articulate his case;
c)Mr Ellis has failed to comply with previous orders to plead his case;
d)Mr Ellis has refused prior invitations to re-plead his case;
e)this case is not one which could be properly described as "complex";
f)Mr Ellis has experience in commencing applications of this kind; and
g)the Statement of Claim filed by Mr Ellis includes "irrelevant facts and issues", which was the basis upon which this Court dismissed the Application as against the FPA.
In Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081 (“Takemoto”) the Federal Court said that whilst “caution should be exercised before striking-out a pleading, even greater caution should be exercised before refusing a party an opportunity to re-plead”: Takemoto at [87] per Flick J, and that a party will normally be permitted to re-plead, particularly where the cause of action concerned is complex and where prior opportunities have not been extended: Takemoto at [89]–[90] per Flick J.
In Nulyarimma & Ors v Thompson & Ors (1999) 96 FCR 153; (1999) 165 ALR 621 at [208] per Merkel J (with whom Wilcox and Whitlam JJ relevantly agreed), the Federal Court cited with approval the following observations made in Thorpe v Commonwealth (No 3) (1997) 71 ALJR 767; (1997) 144 ALR 677 (“Thorpe (No 3)”) at 774-775 per Kirby J:
Even if a party makes good its attack on another's pleading, a court will ordinarily permit the opponent to reframe the pleading so long as it is clear that there is point in doing so and that the further time and opportunity will have utility.
The following factors are relevant here.
The Application has been on foot for a substantial amount of time: namely almost three years since the Complaint was made to the Commission and over two years since an appeal was filed with this Court. In that time, the case is yet to proceed to a substantive hearing of any kind. The proceedings have already become unnecessarily protracted by reason of the Applicant's failure to comply with the Court’s orders to date: Ellis v Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust T/A Rottnest Express & Ors [2017] FCCA 88 (“Wadjemup Trading (No 1)”) at [44] per Judge Lucev, specifically, pursuant to orders of this Court on 2 June 2017, Mr Ellis was required to file and serve a statement of claim on the RIA by 30 June 2017 (“2 June 2017 Orders”). Mr Ellis failed to comply with that order: di San Marzano Affidavit at [9]. On 28 July 2017 order 1 (requiring the filing and service of a Statement of Claim) of the 2 June 2017 Orders was set aside, and the matter adjourned to 20 December 2017 for a directions hearing. On 20 December 2017 Mr Ellis was ordered to file a Statement of Claim by 14 February 2018, which Mr Ellis did, filing the Statement of Claim on 9 January 2018. This is, therefore, the third opportunity Mr Ellis has had in these proceedings to file a sufficient statement (or points) of claim: Gill at [17] per North J.
Mr Ellis refused to file an Amended Statement of Claim when invited by the RIA to do so in January 2018: see RIA Letter and Mr Ellis’ Emails. From Mr Ellis’ Emails it appears that Mr Ellis does not consider that the Statement of Claim is deficient in its current form.
Mr Ellis has also previously failed to comply with orders of the Court requiring him to state his case in relation to the FPA with sufficient factual and legal particularity: see orders 3 and 4 of the Court’s orders made 16 June 2016. This Court also expressed particular concern that Mr Ellis had failed to file and serve a Factual Summary on the FPA as the Factual Summary's purpose was to allow for an assessment of the Application's merits and the future conduct of the proceedings: Wadjemup Trading (No 1) at [45] per Judge Lucev.
In Wadjemup Trading (No 1), this Court, when dismissing the Application as against the FPA, found as follows:
a)at [38] per Judge Lucev:
The Court has considered Mr Ellis’ status as a self-represented litigant, and one, who (as the Court indicated in the course of oral submissions) although he has many applications alleging disability discrimination in this Court, had not at the time of the hearing of the Application in a Case, proceeded beyond an interlocutory stage in any of them, and, whether in the circumstances, the Court might allow a further period of time for compliance with the June 2016 Orders, before making a self-executing order: FCC Rules, r.13.03B(1)(c). The fact that Mr Ellis is a self-represented litigant does not, of itself, explain or excuse his failure to comply with the June 2016 Orders or the August 2016 Orders (and the other orders with which he has failed to comply).
b)at [41] per Judge Lucev:
There was also nothing else in the hearing of the Application in a Case which indicated to the Court that if it allowed a further opportunity for compliance, in relation to the June 2016 Orders and the August 2016 Orders, any Factual Summary or further submissions or evidence would deal with relevant facts and issues, and not other irrelevant facts and issues with which Mr Ellis seems preoccupied, such as alleged corruption in the Western Australian Government and its authorities, and the conduct of lawyers acting for the Western Australian Government, or the conduct of lawyers generally: Transcript, pages 5-11.
The "irrelevant facts and issues" referred to in Wadjemup Trading (No 1) at [41] per Judge Lucev continue to appear in the Statement of Claim now filed by Mr Ellis: see, for example, Statement of Claim at [1]-[2], [5], [7] and [9].
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 [13]-[27] above, and to Mr Ellis’ conduct in these proceedings.
Mr Ellis is familiar with the litigation process, having commenced many matters of a similar kind in this Court. 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 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 it appears that he requires the assistance of a lawyer before they will emerge: cf 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 the Statement of Claim that the further Statement of Claim would be drafted in a manner such as to disclose a proper cause of action.
This matter is one in which Mr Ellis has had time, and multiple opportunities, to formally file a statement or points of claim in proper form, and indications from the Court generally as to what is required in such a statement or points of claim. The Statement of Claim does not meet those requirements. When Mr Ellis’ failure to meet those requirements was, quite properly, brought to his attention by the RIA’s lawyers, with an invitation to have yet another opportunity to file an amended Statement of Claim meeting the relevant requirements, the invitation was dismissed by Mr Ellis in a manner which was both blasé and inappropriate.
Having regard to the matters set out at [50]-[57] above, the Court has concluded that leave to re-plead would lack utility: Thorpe (No 3), ALJR at 774-775 per Kirby J, and ought not to be granted.
Conclusion and orders
The Court has concluded that the RIA’s Application in a Case will be upheld, and that:
a)the Application has no reasonable prospect of success and should be dismissed pursuant to r.13.10(a) of the FCC Rules;
b)in the alternative to (a) above, the Statement of Claim should be struck out in its entirety pursuant to r.16.21(1)(d) and (e) of the FC Rules;
c)no leave to re-plead the Statement of Claim ought to be granted; and
d)there will, therefore, be an order that the Application be dismissed pursuant to r.13.10(a) of the FCC Rules.
The Court will hear the parties as to costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 16 November 2018
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