Ellis v Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust and Ors (No.2)
[2017] FCCA 960
•17 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELLIS v WADJEMUP TRADING PTY LTD ATF WADJEMUP UNIT TRUST & ORS (No.2) | [2017] FCCA 960 |
| Catchwords: PRACTICE AND PROCEDURE – Application for extension of time to file originating application – factors to be considered on an extension of time application – whether any explanation for delay – whether any prejudice to the respondent if extension is granted – whether applicant has an arguable case. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), ss.46PH, 46PO |
| Cases cited: ActewAGL Distribution v Australian Energy Regulator [2011] FCA 639; (2011) 195 FCR 142; (2011) 123 ALD 486 Ellis v Rottnest Lodge (1989) Pty Ltd Trading As Rottnest Lodge [2017] FCCA 84 Matthews v Hargreaves [2010] FMCA 840 |
| Applicant: | TROY ELLIS |
| First Respondent: | WADJEMUP TRADING PTY LTD ATF WADJEMUP UNIT TRUST TRADING AS ROTTNEST EXPRESS |
| Second Respondent: | FREMANTLE PORT AUTHORITY |
| Third Respondent: | ROTTNEST ISLAND AUTHORITY |
| File Number: | PEG 81 of 2016 |
| Judgment of: | Judge Lucev |
| Hearing date: | 17 March 2017 |
| Date of Last Submission: | 17 March 2017 |
| Delivered at: | Perth |
| Delivered on: | 17 May 2017 |
REPRESENTATION
| For the Applicant: | In person (by telephone) |
| Counsel for the Third Respondent: | Mr A Mason |
| Solicitors for the Third Respondent: | State Solicitor's Office |
ORDERS
That the applicant’s application, made orally, under s.46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) for an extension of time in which to file the Originating Application be granted, and that time for the filing of the Originating Application be extended to the actual time of filing on 24 February 2016.
That the matter be adjourned to a further directions hearing at 2.30pm on 2 June 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 81 of 2016
| TROY ELLIS |
Applicant
And
| WADJEMUP TRADING PTY LTD ATF WADJEMUP UNIT TRUST TRADING AS ROTTNEST EXPRESS |
First Respondent
| FREMANTLE PORT AUTHORITY |
Second Respondent
| ROTTNEST ISLAND AUTHORITY |
Third Respondent
REASONS FOR JUDGMENT
Introduction
Troy Ellis (“Mr Ellis”) electronically lodged an application with the Court on 24 February 2016 alleging unlawful discrimination because of his disability (“Originating Application”). Mr Ellis’ Originating Application was filed out of time, and he has orally applied for an extension of time within which to file it (“Extension of Time Application”): Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”), s.46PO(2). The Originating Application was re-filed on 21 March 2016.
Background
Much of the relevant background to the Originating Application and the present state of these proceedings was set out in Ellis v Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust T/A Rottnest Express & Ors [2017] FCCA 88 (“Wadjemup (No 1)”) at [5]-[9] and [13]-[25] per Judge Lucev as follows:
5. On 1 December 2015, a delegate of the President of the Australian Human Rights Commission (“AHRC”) terminated a disability discrimination complaint made to the AHRC by Mr Ellis against, amongst others, the FPA. [the Fremantle Port Authority (the second respondent)] The termination of Mr Ellis’ complaint by the delegate was pursuant to s.46PH(1)(i) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) on the basis that there was no reasonable prospect of the complaint being settled by the AHRC by conciliation. The delegate issued a notice of termination in accordance with s.46PH(2) of the AHRC Act (“Notice”).
…
6. Pursuant to s.46PO(2) of the AHRC Act, Mr Ellis was required to file the Originating Application with this Court or the Federal Court of Australia within 60 days of the date the Notice was issued, or within such further time as either of the courts concerned allow.
7. On 24 February 2016, Mr Ellis electronically lodged the Originating Application with this Court, seemingly out of time, and emailed the FPA at “[email protected]” attaching a Court-stamped copy of the Originating Application.
8. The grounds of the Originating Application and the orders sought therein are, in part, illegible. The final orders sought in Part A of the Originating Application appear to be as follows:
1. Final orders sought by the applicant
(a) Apology in writing.
(b) $1 million compensation from all entities in total.
(c) All access at Fremantle, on Rottnest Ferries, Rottnest Island+
Rottnest Lodge to be made 100% safe, no [not legible] risks + disabled easy transport to accommodation.
(d) All amenities + attractions to be made 100% accessible.
9. Part B – Grounds of Application in the Originating Application asked the question “What discrimination are you complaining of?” in response to which Mr Ellis has indicated “Disability Discrimination”. No further particulars are provided.
…
13. On 9 March 2016, this Court made orders (“March 2016 Orders”). Relevantly, orders 1 and 2 provided as follows:
1. The Applicant file and serve the First and Third Respondents with the originating application with (sic) in accordance with the Federal Circuit Court Rules 2001 (Cth) by 23 March 2016.
2. The applicant file an affidavit of service on the First and Third Respondents by 30 March 2016.
14. Mr Ellis failed to comply with the March 2016 Orders in that he did not serve the Originating Application on the first respondent, Wadjemup Trading Pty Ltd As Trustee For the Wadjemup Unit Trust trading as Rottnest Express (“Wadjemup Trading”), or file an affidavit of service on Wadjemup Trading: Ms Werren’s Affidavit at [7].
15. On 11 April 2016, the Court made orders (“April 2016 Orders”). Relevantly, order 1 provided as follows:
1. Time for compliance with order 2 of the Court orders of 9 March 2016 be extended to 30 Apri1 2016.
16. Mr Ellis failed to comply with the April 2016 Orders by reason of his failure to serve the Originating Application on Wadjemup Trading, or to file an affidavit of service on Wadjemup Trading: Ms Werren’s Affidavit at [9].
17. On 16 June 2016, the Court made orders (“June 2016 Orders”). Relevantly, the June 2016 Orders provided as follows:
1. By reason of the applicant’s non-compliance with order 1 of the Court’s orders of 11 April 2016 the application as against the first respondent be dismissed pursuant to r.13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
2. The applicant’s application for an extension of time be listed for hearing on a date to be fixed by the Court
3. Within 14 days of this Order, the applicant file and serve a Factual Summary which:
a. Articulates the acts or omissions of the second respondent that the applicant alleges amount to a breach of the Disability Discrimination Act 1992 (Cth); and
b. Provides further facts and particulars in relation to those alleged acts or omissions,
4. Within 14 days of this Order, the Applicant file and serve submissions and evidence in support of his application for an extension of time.
5. Within 28 Days of this Order, the Second Respondent file and serve submissions and evidence in reply.
18. Mr Ellis failed to comply with the June 2016 Orders: Ms Werren’s Affidavit at [12].
19. The August 2016 Orders were relevantly as follows:
1. The second respondent file and serve an outline of submissions in support of its application in a case by 2 September 2016.
2. The applicant file and serve an outline of submissions in opposition to the second respondent’s application in a case by 16 September 2016.
3. The second respondent’s application in a case be listed for hearing at 4pm on 30 September 2016, with leave to the applicant to appear by phone.
20. Mr Ellis also failed to comply with order 2 of the August 2016 Orders, in that he failed to file and serve an outline of submissions in opposition to the Application in a Case.
21. In this case, there is no question that Mr Ellis is in default, by reason of his failure to comply with orders 3 and 4 of the June 2016 Orders, and order 2 of the August 2016 Orders.
22. There has been no attempt by Mr Ellis to comply with orders 3 and 4 of the June 2016 Orders or order 2 of the August 2016 Orders. As at the date of the hearing of the Application in a Case, Mr Ellis’ failure to comply with orders 3 and 4 of the June 2016 Orders and order 2 of the August 2016 Orders was ongoing.
23. Mr Ellis’ failure to comply with orders 3 and 4 of the June 2016 Orders and order 2 of the August 2016 Orders are not the first occasions upon which Mr Ellis has not complied with the orders of the Court in these proceedings.
24. Mr Ellis has failed to comply with orders of the Court on four separate occasions as follows:
a) orders 1 and 2 of the March 2016 Orders;
b) order 1 of the April 2016 Orders;
c) orders 3 and 4 of the June 2016 Orders; and
d) order 2 of the August 2016 Orders.
It was the failure to comply with the April 2016 Orders (which followed on from the failure to comply with the March 2016 Orders) which led the Court to dismiss the Originating Application as against Wadjemup Trading on 16 June 2016: see [12]-[16] above.
25. It is therefore the case that Mr Ellis has failed to comply, either in whole or part, with every order that the Court has thus far made in these proceedings. At no stage has Mr Ellis sought any extension of time to comply with any of the orders with which he has not complied.
The Court dismissed the application as against:
a)the first respondent, Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust T/A Rottnest Express, on 16 June 2016 pursuant to r.13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) for non-compliance with the Court’s orders; and
b)the second respondent, the Fremantle Port Authority, on 24 January 2017 for the same reason: Wadjemup (No 1)at [47]-[48] per Judge Lucev.
Therefore, the only respondent still active in the proceedings is the Rottnest Island Authority, the third respondent.
Mr Ellis’ material in support of the Extension of Time Application
At Part E of the Originating Application with respect to the Extension of Time Application Mr Ellis has answered “yes” to the question “Do you need an extension of time?” and explained:
There was some anomilies that have caused a time delay that I have tried to resolve in a timely manner.
(Copied from Part E of the Originating Application without amendment)
Rottnest Island Authority’s position with respect to the Extension of Time Application
The Rottnest Island Authority has not filed any material in opposition to the Extension of Time Application. At a directions hearing on 16 June 2016, the Rottnest Island Authority indicated they neither opposed nor consented to an extension of time, but supported an order then sought by the Fremantle Port Authority for a factual summary outlining Mr Ellis’ claim to be filed. Such an order was subsequently being made, but only in relation to Mr Ellis’ claim against the Fremantle Port Authority, but was ultimately not complied with by Mr Ellis: Wadjemup at [17]-[18] per Judge Lucev.
At the hearing of the Extension of Time Application the Rottnest Island Authority reiterated its position of neither consenting to nor opposing the Extension of Time Application.
Extension of time – legislation
Section 46PO(2) of the AHRC Act:
a)provides that an application to this Court made under s.46PO(1) of the AHRC Act must be made within 60 days after the date of issue of the Termination Notice; and
b)empowers the Court to extend the time within which an application under s.46PO(1) of the AHRC Act can be made.
Factors – extension of time
The relevant factors to be considered on an extension of time application under s.46PO(2) of the AHRC Act are set out in Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449; (2007) 97 ALD 721 at [47] and [48] per Middleton J (“Bahonko (No 4)”) where the Federal Court observed as follows:
47. Under s 46PO(2), it is clear that the Court has a discretion to grant an extension of time. The principles to be considered when deciding whether to extend time for the filing of an application were described by Weinberg J in the decision of Bahonko v RMIT [2006] FCA 1325 at [21] to [24]. His Honour referred to the principles expounded by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which related to an application for an extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) … and held that the principles therein stated were applicable to s 46PO. I respectfully agree with Weinberg J that those principles are relevantly applicable to an application under the HREOC Act [now the AHRC Act].
48. The main three matters that need to be taken into account are:
• the explanation of the delay;
• any prejudice to the respondent; and
• whether the applicant has an arguable case.
See also Croker v TAFE Commission [2009] FCA 1024 (“Croker”); Matthews v Hargreaves [2010] FMCA 840 at [9] per Lucev FM (“Matthews”).
The Court’s discretion in relation to the extension of time factors is not fettered by the above factors: Seiler v Minister for Immigration, Local Government & Ethnic Affairs (1994) 48 FCR 83 at 97 per French J (“Seiler”); Mentink v Minister for Home Affairs [2013] FCAFC 113 at [36] per Griffiths J (with whom Edmonds J agreed: at [2]) (“Mentink”).
Applying the factors to the Extension of Time Application
Delay
The Australian Human Rights Commission (“AHRC”) terminated Mr Ellis’ complaint on 1 December 2015. Mr Ellis had until 31 January 2016 to file the Originating Application in this Court without requiring leave: AHRC Act, s.46PO(2). Mr Ellis filed his application 24 days out of time on 24 February 2016. Viewed in isolation this is a not insignificant delay.
As set out at [4] above Mr Ellis cites anomalies as the reason for the delay. Mr Ellis does not, however, explain what the anomalies were or how they prevented him from filing the Originating Application within time. The Court has perused the Electronic Court File (“ECF”) and notes that:
a)Mr Ellis attempted to lodge an originating application on 8 February 2016, but it was pended by the Perth Registry, and ultimately rejected;
b)the Originating Application was lodged on 18 February 2016, and was also pended by the Perth Registry, but seemingly after an amendment to include the Extension of Time Application was accepted for filing on 24 February 2016; and
c)a file note dated 25 February 2016 indicates that the Registry would not accept the originating applications sought to be filed by Mr Ellis unless an extension of time was applied for by ticking the “Yes” at Part E of the relevant form. That information was recorded on 18 February 2016 and appears in a note now on the ECF which forms part of the Court record.
Mr Ellis attempted to file an originating application on 8 February 2016, and again on 18 February 2016, before having the Originating Application accepted on 24 February 2016. Therefore, the application was filed 18 days late. The delay from 8 to 24 February 2016 is explained by the matters in the preceding paragraph. The delay between 31 January (the last day for filing) and 8 February 2016 is not, however, explained.
Although much of the delay is explained, the delay of seven days from the last day for filing and the first attempt at filing is not explained. Any unexplained delay weighs against extending time. Further, to the extent that there is a further delay after 8 February 2016, it appears to have been, at least in part, a consequence of Mr Ellis’ failure to initially make a necessary application to extend time. The delay and the explanation for it do not, in the circumstances, weigh in favour of an extension of time.
Prejudice to the Rottnest Island Authority
The Rottnest Island Authority has not identified or alleged any prejudice to it, and neither consents to nor opposes the Extension of Time Application. The absence of prejudice is not however a sufficient condition for granting an extension of time: Bahonko (No 4) at [53] per Middleton J; Croker at [19] per Edmonds J; Matthews at [16] per Lucev FM. The Court notes that the Rottnest Island Authority does suffer some prejudice in as much as it was entitled to consider Mr Ellis’ dispute with them finalised at the conclusion of the 60 day limitation period.
Arguable case
In assessing whether or not there is an arguable case on the Originating Application for the purposes of an interlocutory application, such as the Extension of Time Application:
a)it is necessary for the Court to recognise that its discretion is not fettered by the factors set out at [9] above: see [10] above, citing Seiler at 97 per French J; Mentink at [36] per Griffiths J (with whom Edmonds J agreed: at [2]);
b)it is necessary for appropriate caution to be exercised in assessing the merits: Mentink at [37] per Griffiths J and [57] per Pagone J, both citing Seiler at 98 per French J; and
c)the proper approach is that it is inappropriate for the purposes of assessing an arguable case to fully investigate the merits, although an obvious strength or weakness in Mr Ellis’ case will be a factor for or against the exercise of the discretion to extend time: ActewAGL Distribution v Australian Energy Regulator [2011] FCA 639; (2011) 195 FCR 142; (2011) 123 ALD 486 at [111] per Katzmann J (following Seiler at 98 per French J) cited in Mentink at [38] per Griffiths J.
The Court notes that Mr Ellis bears the onus of proof generally: 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). Mr Ellis’ submissions were short and general referring to the state of his health – a matter about which there is no evidence in these proceedings – and that it would be a “travesty of justice” if he were not to be heard.
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 the Court’s view there has been no deliberate failure or omission by Mr Ellis to file material relevant to the merits of his case. The Originating Application, which comprises a standard form required to be completed by an applicant: FCC Rules, rr.4.01(1) and 41.02A(1), is the only document that Mr Ellis has filed in these proceedings (albeit that it was filed twice), and is one which the Court has previously observed as having deficiencies in its standard form. In Ellis v Kanyana Wildlife Rehabilitation Centre Inc [2017] FCCA 89 at [11]-[12] per Judge Lucev the Court said as follows (there referring to the Originating Application as the “Application Form”):
The Application Form does not necessarily require an applicant to set out their claim of discrimination in a manner which discloses its substance. Part B – Grounds of Application does not require that an applicant set out the grounds of the application, as none of the questions under Part B – Grounds of Application in the Application Form require an applicant to set out their points of claim, or to set out the facts alleged. Rather, an applicant, taking the questions asked under Part B – Grounds of Application literally, can simply state the type of discrimination being complained about (eg disability, in this case – age, sex or race in other cases), tick the relevant box in relation to the relevant Act, and state the sections of that Act relevant to the claim. There is no provision which directs an applicant, or requires an applicant to, set out their points of claim or the alleged facts of their claim (as there is in relation to, for example, the Application Form which initiates proceedings under the Fair Work Act 2009 (Cth) in this Court).
The consequence of the nature of the Application Form and the lack of a requirement to file an affidavit, means that at first directions hearings in claims under federal discrimination legislation in this Court, it will often be necessary to direct that an amended Application Form be filed including points of claim, or to direct that a statement of claim or points of claim, or affidavit, be filed. In some cases, and this is one, the respondent therefore files an application in a case seeking that the application be struck out because no cause of action is revealed by the content of the Application Form. Whilst the nature of the Application Form, or the absence of an affidavit, might not be a difficulty where lawyers are acting, and annex points of claim or a statement of claim, it is a difficulty where a self-represented litigant does not do so, and where, as here, the Application Form is taken literally. It results in an applicant not disclosing the basis of the claim made with sufficient specificity, and, consequently, in unnecessary applications in a case being made, and unnecessary further directions for applicants to file statements of claim to be made, as has ultimately happened in this case. It would be simpler if applicants in human rights proceedings were required to file an application in the usual way.
Mr Ellis has not in fact been required to file any further pleadings or materials in relation to his claim against the Rottnest Island Authority, and bearing in mind the Court’s observations as to the deficiencies in the standard form used as the Originating Application in human rights proceedings in this Court, Mr Ellis can arguably have been said not to have had an opportunity to put his points of claim against the Rottnest Island Authority before the Court. In those circumstances, the Court cannot draw any conclusions as to Mr Ellis merits case, and it cannot therefore be said, at this stage, that his case against the Rottnest Island Authority has insufficient merit to succeed and that therefore an extension of time ought not to be granted. It would not be appropriate not to grant an extension of time where, as here, Mr Ellis has arguably not had an opportunity to put his points of claim before the Court.
It follows that there will be an order granting the Extension of Time Application, and under s.46PO(2) of the AHRC Act, for there to be an extension of time in which to file the Originating Application to the time of actual filing on 24 February 2016
Conclusion and orders
The Court has concluded that the applicant’s application, made orally, under s.46PO(2) of the AHRC Act for an extension of time in which to file the Originating Application is to be granted, and that time for the filing of the Originating Application be extended to the actual time of filing on 24 February 2016. There will be an order accordingly. Otherwise, the matter will be adjourned to a further directions hearing at 2.30pm on 2 June 2017.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 17 May 2017
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