Ellis v Green Tower Pty Ltd Trustee for the Green Tower Trust

OVERVIEW 6 Mr Ellis brought a claim alleging disability discrimination as a result of a fall suffered at the respondent's (Green Tower) premises before the Federal Circuit Court. Mr Ellis failed to file an application for leave to appear and give evidence by telephone as previously ordered and subsequently failed to appear at the hearing. 7 The primary judge dismissed the matter for non-appearance pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth): see Ellis v Green Tower Pty Ltd Trustee for the Green Tower Trust (Trading as Hopscotch Garden Centre and Tearooms) [2017] FCCA 1390. Mr Ellis filed an application to set aside the dismissal order pursuant to r 16.05(2)(a) of the Rules, accompanied by a letter from Royal Perth Hospital indicating that he had presented at the Emergency Department. The primary judge concluded on that application that, although Mr Ellis was admitted to hospital, there was no evidence that his attendance at the hearing was precluded. No attempt had been made to contact the Federal Circuit Court seeking any adjournment. The letter from the hospital indicated that Mr Ellis remained well while he was admitted. In those circumstances, the primary judge found that there would be prejudice, including costs and delays to Green Tower, if the application to set aside judgment was granted (at [55]). His Honour found no arguable case on the merits of the substantive application where, at the time of the hearing, there had been no statement or evidence as to the disability alleged to be suffered, how any disability related to the discrimination alleged, no sufficient degree of specificity of material facts pleaded, and no medical evidence had been filed (at [63]-[64]). The primary judge found that there was no prospect that any order other than to dismiss the substantive application would have been made at the hearing and, accordingly, refused to set aside the dismissal (at [69]). 8 Mr Ellis contended before the Federal Circuit Court that the report from his medical practitioner could not have been brought to the attention of the primary judge and asserted that the primary judge failed to consider that the non-attendance was not Mr Ellis' failure, but rather, that his health was too compromised.

PROCEDURAL ASPECT 9 The proceeding before the Court is Mr Ellis' application for an extension of time to file a notice of appeal, filed 8 August 2017. The application has been referred to me for case management. The handwritten application is accompanied by a draft notice of appeal, the grounds of which are in these terms: 1. The health report from my GP […] in latter [sic] 2016 was ignored and never presented to [the primary judge] after I sent it to the [Federal Circuit Court]. I was told in latter [sic] 2016 that I needed to fill out a COURT ABSENTEE APPLICATION with AFFIDAVIT and to read and complete court papers and attend court dates, but even if I received any letters, they would not have been read, as my entire health was far too compromised to have been able to read or comprehend any stressful or serious court papers, either from the court or even from lawyers for that matter, even though I could attend to light home, medical, and life duties, functions and light court and governmental applications, I could not attend to high stress of actual court cases. 2. [The primary judge] did not consider that was not any failure of my part as I did try to write to the court and instruct them that my health was in chaos. 3. The lawyers used this to harm my DISABLITY [sic] DISCRIMINATION CLAIM and have it DISMISSED as these lawyers were acting deceitful and inhumane to use disabled ill health to attack me with it, and so they could simply win and have the case dismissed. 10 These grounds mirror similar grounds in other applications by Mr Ellis before me.

AFFIDAVIT IN SUPPORT 11 The affidavit of Mr Ellis in support of the application for an extension of time is in these terms and also mirrors affidavits in other proceedings before me: … 2. I was unwell and unfit for court in the latter half of 2016 and continuing into early 2017 and then into March 2017, due to disability associated physical, mental and emotional exhaustion, as advised by my GP […], to carry out any legal duties in the court orders of [the primary judge], in regards to any and all paperwork, court appearances and lodgements in the Perth Federal Circuit Court. 3. The reasons for late lodgement of this AFFIDAVIT, APPEAL and APPLICATION FOR AN EXTENSION OF TIME, is due to failing disability health, extreme stress, pressure and time restraints, to have to research and find out the best way to submit the correct information, without any professional legal knowledge or the support of legal clerks and legal secretaries, as essentially as an unwell disabled person pushed to breaking point by resourceful and cunning lawyers and their corporate clients, who surely would know the pressure of trying to survive as most of the disabled community are trying to do daily. 4. The never ending years of these cases dragging on have taken an immense toll on my entire physical and mental health, culminating in emotional outbursts in the Perth Federal Circuit Court in 2016 and 2017, that I have lost the ability to function at the best and acceptable levels of the court or even consider time frames or severe punishments I could suffer for court outbursts. I feel [the primary judge] understands the outbursts are acting out in a survival instinct, extreme fear and stress and of having such poor quality of life, due to disability and trying to fight for the same rights and justice as the able bodied community, being my only saving grace, or I would have been punished and died in jail. 5. The time frames to submit the constant streams of the same information over and over, to unscrupulous lawyers and corporate clients, is so overwhelming for one man's health and disability crisis, that I am not keeping up with the demands of [the primary judge], in regards of time frames, forms and paperwork, that I mostly do not understand at all.

THE PRIMARY JUDGMENT 12 The primary judgment is extensive and detailed, running to some 70 paragraphs. 13 After considering in detail the history of the matter, his Honour referred to r 16.05(2)(a) of the Rules and the cases thereon. 14 His Honour continued (from [25]) by discussing principles concerning the adequate reasons for non-appearance by persons with a disability. He discussed (at [26]-[29]) Mathews v MacDonnell [2011] FCA 825 per Logan J and Mathews v State of Queensland (No 2) [2014] FCCA 1658, before concluding (at [33]) that in disability discrimination cases before the Federal Circuit Court: a) the primary position is that an applicant is required to appear in person, even where they have a disability; and b) an appearance, other than in person, must be justified, and where the appearance other than in person is sought to be based upon the applicant's disability, there must be sworn medical evidence as to the existence of the disability and the reasons why the disability precludes the applicant from appearing in person. 15 His Honour then discussed (from [34]) cases generally dealing with applications to appear other than in person, including Picos v HealthEngine Pty Ltd [2014] FCCA 640. 16 The primary judge noted (at [44]) that no leave to appear other than in person was granted to Mr Ellis at any stage in these proceedings. 17 At ([45]-[52]), his Honour said: 45. The Court notes that although Mr Ellis was admitted to the Emergency Department at Royal Perth Hospital [(RPH ED]) there is nothing to indicate that his health might have precluded him from attending the May 2016 Hearing, if he had made contact with the Court and sought to have the hearing adjourned pending his ultimate discharge from hospital at 12 noon. On the evidence, Mr Ellis made no attempt to contact the Court to indicate that he would not be attending in person, or that he was ill and in hospital. In that regard the RPH ED Letter indicates that Mr Ellis: a) remained well whilst in the Emergency Department; b) there was no recurrence of pain whilst he was in the Emergency Department; c) that he had no associated nausea, vomiting, abdominal symptoms or urinary symptoms whilst in the Emergency Department; d) no analgesia had been required during his stay in the Emergency Department; e) that he was discharged home; and f) had had no falls recently. There is nothing in the above evidence which would indicate why Mr Ellis could not attend the May 2016 Hearing, or any adjourned hearing of the May 2016 Hearing if an adjournment had been sought to later on the day of that hearing. 46. Mr Ellis' oral submission suggesting that he might not have been well enough to pick up the phone or even remember what he was supposed to be doing on the day of the May 2016 Hearing: Transcript at p+ages [sic] 8-9, is simply not supported, and indeed is contradicted, by the evidence in the RPH ED Letter. 47. Ultimately, however, Mr Ellis' hospitalisation made no difference. He would not have appeared at the May 2016 Hearing in person in any event: his Application in a Case makes it plain that he perceives that he is entitled to appear by audio link, and had no intention of appearing other than by telephone. Mr Ellis' view is that his appearances in this Court "absolutely must be via AUDIO LINK" to his mobile telephone: Mr Ellis' Affidavit at [5] ... For reasons set out above: see [26]-[33] above, that is not the legal position. Nor is it a position justified by any evidence led by Mr Ellis in these proceedings. Notwithstanding the Court's December 2015 Order for Mr Ellis to file medical or expert's reports if he wished to appear other than in person, he did not do so, and nor were any medical or expert's reports filed for the purposes of justifying his non-attendance at the May 2016 Hearing. (emphasis added) 48. Mr Ellis' oral submission that because he was on a disability pension that proved that he had a disability cannot be sustained. The mere fact that he is in receipt of a disability pension proves only that fact. Even if the Court were to infer from the fact of his receipt of a disability pension that Mr Ellis had a disability, it still does not prove the nature of the disability, the extent of the disability, or why the disability precludes him from attending Court. Mr Ellis' further oral submission that, put broadly, it was unfair and costly to him to order that he provide medical evidence to the Court of his disability, is a submission which also cannot be sustained. There is no evidence as to the cost of providing any medical evidence. If, as he seemingly does, Mr Ellis asserts that he cannot attend Court by reason of his disability, and its nature and extent, then he must prove that to be the case, and the only means of proving that is for him to make an appropriate application and to provide sworn medical evidence to the Court in support thereof. Evidence of Mr Ellis' disability is essential to any assertion that he is unable to attend Court, and that evidence must properly address why it is that by reason of his disability, its nature and extent he is unable to attend Court: see [26]-33] [sic] above. It cannot be unfair to require Mr Ellis to prove the matters he asserts. Moreover, it would be unfair to Green Tower not to require him to prove such matters. 49. Appearances other than in person are not a right but an indulgence granted by the Court in appropriate circumstances: MacDonnell at [8] per Logan J; Medimobile at [18] per Judge Jarrett. Mr Ellis was given the opportunity pursuant to the December 2015 Order to satisfy the Court that, for the purposes of a final hearing, he should be allowed to appear by telephone. Mr Ellis did nothing to put the Court in a position to make such an order. Mr Ellis failed to grasp the opportunity he was given to apply for leave to appear by telephone. Mr Ellis made neither an application in a case nor filed any affidavits to support an application in a case to appear by telephone. In particular, there is no sworn medical evidence as to his disability and its extent, as there must be: MacDonnell at [6] per Logan J; State of Queensland (No 2) at [8] per Judge Jarrett; Picos at [58] per Judge Lucev, if an applicant is to prove a disability the extent or effect of which is to preclude the applicant from appearing before the Court in person. There was, therefore, nothing either by way of application or evidence before the Court at, or more particularly before, the May 2016 Hearing upon which an order for a telephone link hearing for the May 2016 Hearing could be made. Mr Ellis therefore had an opportunity to apply to appear by telephone and failed to do so, and had no right to appear other than in person. 50. Even if Mr Ellis had applied for an order for a telephone link hearing for the May 2016 Hearing it is unlikely that it would have been granted. It is evident from Mr John Brereton and Mr Chris Brereton's February 2016 Affidavits that significant issues would have arisen as to: a) the nature and condition of the paths concerned; b) the means of access to the tearooms; and c) the nature of any incident at the entrance to the tearooms. 51. In the above circumstances, it is evident that significant cross-examination of Mr Ellis and both Mr John and Mr Chris Brereton would have been required. In the course of those cross-examinations it would have been necessary to make reference to the plans and photos. Cross-examination over the telephone in relation to plans and photos of paths and premises would be manifestly difficult, and arguably made more so by the fact that Mr Ellis is self-represented. There was also a significant factual issue to be determined in relation to whether there was in fact, an incident which occurred at the entrance to the tearooms, and also, arguably, on the path leading to the tearooms. Given that there were seemingly opposing factual contentions which were not reconcilable, the credit of the witnesses may have been very important in determining those issues. The combination of the above issues means that it would be unlikely that the Court would have granted leave for Mr Ellis to appear via a telephone link at the May 2016 Hearing, in any event. 52. In the above circumstances, Mr Ellis did not have an adequate reason for non-attendance at the May 2016 Hearing, and it was therefore almost inevitable that when Mr Ellis was not present at the May 2016 Hearing, the Court would make the Dismissal Order, as it did. Further, Mr Ellis' hospitalisation did not make any difference because it is evident that he did not intend to appear in person and did not otherwise have leave to appear other than in person. 18 His Honour (at [53]-[56]) then dealt with the extent of the delay by Mr Ellis in making the application to set aside the order dismissing the application on the ground of non-appearance and whether Green Tower would be prejudiced by a new hearing. Both considerations were concluded in Mr Ellis' favour by the primary judge. 19 The primary judge then examined whether there was an arguable case on the merits of the substantive claim. His Honour considered (at [57]-[58]) Qantas Airways Ltd v Gama (2008) 167 FCR 537 and Gill v iiNet Limited [2015] FCA 1029. He noted (at [62]) that it was also important to bear in mind that Mr Ellis bears the onus of proof generally: Ferrus v Qantas Airways Ltd (2006) 155 IR 88 (at [48]) per Collier J; Vassallo v Jetswan Pty Ltd [2010] FMCA 708 (at [20]) per Lloyd-Jones FM (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: s 6 of the Disability Discrimination Act 1992 (Cth) (DD Act); Jetswan (at [20]) per Lloyd-Jones FM (and cases there cited). 20 At ([63]-[67]) the primary judge said: 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. 65. The RPH ED Letter does not assist Mr Ellis. Whilst it does indicate that he has, at least, a history of muscular dystrophy and depression, and assuming that they might be disabilities which Mr Ellis seeks to rely upon, the RPH ED Letter says nothing about the nature of those disabilities, or their effect, relevant to the circumstances alleged to have occurred at Green Tower's premises 23 months previously (and to be fair to the author, nor could they given that that was not the purpose of the RPH ED Letter). 66. In all of the above circumstances, Mr Ellis did not have an arguable case on the merits of the substantive claim on the evidence filed for the May 2016 Hearing, and it is inevitable that the application would have been dismissed if the May 2016 Hearing had proceeded. Nothing in the evidence filed in support of the Application in a Case makes any difference to the substance of the evidence as it was before the Court at the time of the May 2016 Hearing, and nothing in it justifies a conclusion that Mr Ellis has an arguable case on the merits of the substantive application. 67. It follows that Mr Ellis has not established that he has an arguable case on the merits of the substantive application.

NOTICE OF OBJECTION TO COMPETENCY 21 Green Tower objects to the competency of the application for an extension of time on four bases: first, that the application was an appeal from an interlocutory decision and Mr Ellis required leave to appeal; secondly, that there were no relevant grounds of review within ss 5, 6 or 7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth); thirdly, that the draft notice of appeal sought orders beyond the power of the Court; and fourthly, that the application was vexatious and/or an abuse of process. Green Tower did not explain how the second ground of objection was applicable.

GREEN TOWER'S SUBMISSIONS IN RELATION TO THE APPLICATION 22 Green Tower did not file written submissions, but did file an affidavit of the solicitor involved in the application. The point was made that on the material filed by Mr Ellis, there was no explanation for the delay in filing his application for an extension of time. That point is correct. But treating the application as being an application for leave to appeal and treating it for present purposes as if it were made within time, Green Tower submitted that the application did not disclose any error of law made by the primary judge in the decision to dismiss the application (being the second application of 22 June 2017).

CONSIDERATION 23 The difficulty for Green Tower in mounting a comprehensive argument was that nothing put before the Court by Mr Ellis demonstrated any error on the part of the primary judge when judgment was extremely comprehensive and undoubtedly correct. 24 Although Mr Ellis spoke at length as to the prejudice he contends he suffers, I was unable to discern anything in response which demonstrated that he had an arguable case as to any error on the part of the primary judge in declining to set aside the earlier dismissal of his application for non-appearance.

CONCLUSION 25 Mr Ellis has failed to demonstrate any appellable error, which would warrant leave to appeal being granted. An appeal has no prospect of success at all. In those circumstances, Mr Ellis' application will be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.