Ellis v Wslo Pty Ltd

[2019] FCCA 1339

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELLIS v WSLO PTY LTD [2019] FCCA 1339

Catchwords:
HUMAN RIGHTS – Failure to provide adequate particulars – whether the applicant failed to comply with previous orders – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03B(1)(a)

Applicant: TROY ELLIS

Respondent: WSLO PTY LTD (TRADING AS WOKINABOX-INGLEWOOD)

File Number: MLG 2830 of 2018

Judgment of: Judge McNab

Hearing date: 25 March 2019

Date of Last Submission: 25 March 2019

Delivered at: Melbourne

Delivered on: 25 March 2019

REPRESENTATION

Applicant in Person

Counsel for the Respondent: Ms Milton

Solicitors for the Respondent: Legal Solutions Perth

ORDERS

1. Pursuant to rule 13.03B(1)(a), the Application filed 19 September 2018 be dismissed.

2. Any application for costs by the Respondent to be made in writing to the Chambers of Judge McNab.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2830 of 2018

TROY ELLIS

Applicant

And

WSLO PTY LTD (TRADING AS WOKINABOX-INGLEWOOD)

Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE AND REVISED FROM TRANSCRIPT)

1. Mr Ellis has made application to the Court by an application filed on 19 September 2018. By that application he seeks final orders being:

   (1) an apology in writing;

   (2) explanation of why there is no disabled ramp, with safety rails and adequate sized auto door for a mobility scooter without safety fears of injury;

   (3) at least five figures in compensation as a starting figure.

2. He seeks interlocutory orders that being:

   (1) to the have the case immediately to a trial of the case;

   (2) mediation offer, however payment must be at least be five figures or no mediation will take place;

   (3) no legal representation for the respondent, as I have no representation;

   (4) the first date of the Court hearing to be from December 2018 or 2019 as I will not be available due to personal and disability health commitments.

3. Mr Ellis appeared by telephone on 3 December 2018. Ms Milton, solicitor, appeared on behalf of the respondent, WSLO Pty Ltd trading as Wokinabox – Inglewood.

4. On that day, the Court made orders being:

   1. By 11 January 2019, the Applicant file and serve an affidavit which set out the facts and circumstances giving rise to his claims, including how any claim for compensation is calculated.

   2. The proceedings be listed for directions in the Federal Circuit Court of Australia at Melbourne on 4 March 2019 at 12:30pm (9:30 am Perth time).

5. Because of the business of the Court, the matter was called on at about 2:40 Melbourne time. Both parties appeared by telephone.

6. The applicant has filed an affidavit which was sworn on 8 January 2019. By that affidavit, at [3], he says that he is a disabled person who suffers from Becker’s muscular dystrophy, ‘extreme muscle weakness with falls, chronic pain and depression’. He exhibited a medical certificate from a medical practitioner that refers to Becker’s muscular dystrophy.

7. His doctor notes that Mr Ellis’ ongoing mental health issue is secondary to his physical disability.

8. A [5] of the affidavit, Mr Ellis states:

   Access to this business as a franchise business have neglected me as a disabled person and refused me safe access to this business, as there is a step with no ramp or rail, where able-bodied people can access without any mental or physical harm.

   That is read exactly.

9. At [6] Mr Ellis states:

   The compensation of apology is calculated on the basis of disability discrimination then added mental and physical burdens and traumas of complaining to HEROC and Federal Court action and then coping with humiliation and further insult to injury of my intelligence, when hearing the respondent with their lawyer telling lies that laws state that discrimination is allowed against me on disability grounds and does not have to provide disability access which is not true in law.

10. At [7] Mr Ellis states:

    Further calculations of the claim is the fact that I would have to endure more costs of travelling out of my way due to the inconvenience of that store not allowing me access under the law and into the future as I did indeed suffer at the time of this complaint. This would turn me into a prisoner of this business being forced to be at their mercy to spend my time and money and on travel costs going elsewhere than my local store or where I choose to go.

11. The affidavit goes on making general comments about Mr Ellis’ view of the law. At [10], he states:

    In the past I have defendants finalise this very same issue of disability inaccessibility by making access changes at their business and out of court settlements of up to and over $10,000 with one compensation payment being almost $20,000 in one case and another defendant offering me almost $20,000 in an out of court settlement which I refused at the time.

12. At [11], he also referred to suffering terror and trauma resulting from trying to access businesses such as this in his desperation.

13. The Court notes that this affidavit is in exactly the same form as an affidavit that was filed by the applicant in relation to a claim made by the applicant against a business known as the East Victoria Park Newsagency & Deli. This application was filed in this Court on 21 September 2018. The Orders sought are also similar to ones in this proceeding. The respondent has sought orders that the claim be dismissed on the grounds that there is defaulting compliance with the orders of the Court made on 3 December 2018.

14. It is said that there is no proper recital of the facts and circumstances giving rise to the claim or how the claim for compensation is calculated.

15. In relation to the lack of particularity, the applicant provided some details in his complaint to the Human Rights Commission. This comes before the Court by way of an email that was attached to his complaint to the Human Rights Commission. Mr Ellis states in this email that:

    Dear Disability Discrimination Commissioner,

    I am lodging a disability discrimination complaint against three entities –

    WIAB Marketing Proprietary Limited

    Entertainment Book

    City of Bayswater.

    They have no disability accessibility to the store and I could not use the vouchers from the Entertainment Book yet again and this is also the fault of the City of Bayswater who are serial abusers of me on disability grounds.

    I visited the Inglewood Wokinabox due to a voucher inside the disability discriminating supporting Entertainment Book that I had purchased and they were also refusing to refund me after lying in writing that they would.

    I visited this store on Friday, 8 September 2017 at 5 pm and could not go into the store as they had a step, no ramp, no safety rail to speak of, so I left, of course, after going out of my way that day to visit this store.

16. He goes on:

    I demand a public apology, large compensation settlement and resolutions out of court from all three of these entities as I am worn out with the trauma of disability discrimination in [Western Australia] systematically played out by corporate and Government WA.

17. It is noted that none of three entities which were named in the complaint to the Human Rights Commission are respondents to the application before the Court.

18. The affidavit does not detail when he visited the store and does not link the claim to compensation to the events, particularly the compensation to the events that he raises in his letter to the Human Rights Commission. The affidavits are in exactly the same terms save that at [5] he replaced ‘linked to the franchise group LUCKY7’ with ‘as a franchise business’ in this affidavit.

19. In addressing the Court, Mr Ellis made general complaints about the state of the businesses in Western Australia and Australia generally. In relation to Wokinabox he also raised complaints that he had never seen a person of Caucasian descent in the store. He made general comments about the corruption of corporations.

20. In my view, there has been no substantial compliance with the orders of 3 December 2018 that would enable the respondent to engage with the complaint.

21. In the course of addressing the Court, Mr Ellis said in open Court and without prompting that he was seeking a payment of $5000 in order to resolve the case and explained that he thought that was fair and reasonable and that is what the respondent should do.

22. As I said earlier, in my view, the applicant has not substantially complied with the orders and is in default of the orders of the Court of 3 December 2018. Given that he has had an opportunity to put his case or, alternatively, articulate his case within the course of addressing the Court this afternoon and has failed to do that with any clarity, the Court is of the view that it is appropriate that this application should be dismissed by reason of a failure to comply pursuant to rule 13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:  

Date:  20 May 2019