//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2018] FCA 338
Federal Court of Australia
2018-03-15
McKerracher J
Original judgment source is linked above.
INTRODUCTION 1 Several applications or appeals have been issued by Mr Ellis in the form of challenges to orders made by the Federal Circuit Court of Australia. Proceedings issued by Mr Ellis in that Court have been dismissed for a variety of reasons, generally on a summary basis due to his failure to comply with rules or directions, or his failure to appear at hearings. 2 Mr Ellis has challenged all of those judgments in this Court, and in response, the various respondents have sought to have his challenges dismissed. 3 For the purpose of these reasons it is assumed that it is established that Mr Ellis is disabled. For all hearings before me (all being interlocutory), Mr Ellis has appeared with leave of the Court by telephone. I have accepted for the purpose of such hearings that he is disabled by reason of suffering some mobility impairment. 4 It is apparent from examining the various proceedings that Mr Ellis has adopted a modus operandi of pursuing claims against various retail and other commercial outlets based on an alleged failure to supply adequate wheelchair facilities. The claims he has issued have been stated only briefly. Generally speaking, he has claimed at least $1 million in compensation against all concerned. The scarcity or absence of evidence or pleading in all of these claims is an underlying feature of them. Unfortunately, none of the claims has been properly tested by a trial because Mr Ellis has repeatedly, at least according to the Federal Circuit Court, failed to comply with court orders or rules, and has failed to appear on various applications. 5 It must be said, without presently descending to particulars, that whilst Mr Ellis has been very polite to me up to this point, he has launched scathing and vituperative attacks on his opponents and, particularly, the lawyers, even accusing them (usually) of criminal activity of an entirely unspecified nature. The invective he has unleashed in such attacks has been entirely unwarranted and raises serious questions as to whether the Court process is being appropriately used.
THE PRIMARY JUDGMENT 6 This is an appeal from a decision of the Federal Circuit Court in Ellis v Junction Group Pty Ltd Trading As V Burger Bar [2017] FCCA 1045, where the primary judge dismissed Mr Ellis' disability discrimination application for non-appearance pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). The appeal has been referred to me for case management and I hear it pursuant to s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth). 7 After noting the brevity of Mr Ellis' case, the primary judge observed (at [11]-[18]): 11. The matter was called today. There was no appearance by Mr Ellis in Court. The matter was called outside. There was still no appearance by Mr Ellis and that remains the case as the Court delivers these Reasons for Judgment. 12. Mr Ellis has filed no application in a case to appear other than in person. Mr Ellis is, or should be, conversant with the requirement to do so. The Court notes that in an earlier case involving Mr Ellis, Ellis v Scentre Shopping Centre Management WA Pty Ltd Trading As Westfield Shoppingtown Carousel Pty Ltd [2017] FCCA 228 at [10] per Judge Lucev ("Scentre Shopping Centre"), the Court observed as follows: There has been no application in a case filed to have the hearing conducted in another form and the Court refers generally to the provisions with respect to audio and video link hearings under ss.66-72 of the Federal Circuit Court of Australia Act 1999 (Cth). The Court is also aware that in other matters it has ordered that the applicant be directed to file such an application in a case in relation to final hearings. The Court is also aware that within the last month or so, there has been correspondence directed to the applicant, not in relation to this matter, but other matters in respect to which he has applications indicating to him that the Court would allow him to appear for interlocutory purposes by phone, but not for final hearings and that any final hearing in respect of which he proposed to appear other than in person would require an application in a case supported by affidavit. 13. The Court notes that the Reasons for Judgment in Scentre Shopping Centre were delivered on 13 February 2017. 14. In Ellis v Adventureworld (WA) Pty Ltd as Trustee of The Adventureworld Unit Trust [2016] FCCA 2504 at [36]-[44] per Judge Lucev ("Adventureworld"), delivered on 30 September 2016, and in the context of a costs application arising from a non-attendance by Mr Ellis at a listed hearing, the Court drew attention to the relevant legislative provisions and some relevant judgments of this Court and the Federal Court with respect to their requirement to appear in person and the requirement to file an application in a case to appear other than in person, as follows: In this case the basic factual context is as follows: the Application had been listed for hearing on 8 March 2016 almost eight months earlier on 14 July 2015; save for the directions hearing listed on 13 July 2015, Mr Ellis had personally attended in Court at all of the directions hearings and before a Registrar in the mediation in respect of the Application; Mr Ellis gave no notice to either Adventureworld or to the Court that: he would not be in attendance in Court at the hearing of his Application on 8 March 2016; and he would seek to appear on the hearing of his application from a location outside the Court, and by telephone; and Adventureworld incurred costs in preparing for the hearing, and in appearing at the hearing, including the costs of Counsel being briefed and appearing. The Court observes that even when orders were subsequently made allowing for Mr Ellis to apply, and to file affidavit evidence in support, of an application in a case to allow him to appear other than in person before the Court on the hearing of the Application, no application in a case, nor any affidavits, have been filed. The Court further observes that, whilst not impossible, it might be difficult for a hearing of a claim such as that involved in the Application to proceed without Mr Ellis being personally present, particularly given the evident desire of Adventureworld to cross-examine Mr Ellis and put photographs to him. Because Mr Ellis gave no notice that he would not be attending Court at the hearing of his Application on 8 March 2016 it was not possible to, and no steps were taken, to consider the practicability of Mr Ellis appearing from a remote location, and being cross-examined whilst in that remote location. The Court notes that Mr Ellis asserts an "understanding" about "phone conferencing" in relation to his appearance before the Court, and an "oversight" in that regard. Mr Ellis has filed no evidence as to the alleged understanding or oversight, and in particular: with whom the understanding was made, and when it was made; what the precise nature of the "understanding" was; how any such "understanding" interacted with the provisions of ss.66 (testimony by video link or audio link), 67 (appearance of persons by video link or audio link), 68 (making of submissions by video link or audio link), 69 (conditions for use of video links and audio links) and 70 (putting documents to a person by video link or audio link) of the FCCA Act; and the nature of the alleged oversight. It is fair to observe that Mr Ellis has appeared by telephone at various directions hearings and interlocutory hearings in some of the other matters in this Court referred to at [51] below, but he has not appeared at any final hearing of a matter in this Court by telephone. As is evident from a consideration of both Ms Kershaw's Affidavit, and the transcript of the 8 March 2016 hearing, there was no expectation or understanding, on the part of either Adventureworld or the Court, that Mr Ellis would appear other than in person before the Court on the hearing of the Application. Ordinarily, in respect of a final hearing at which evidence is to be taken, it would require an order of the Court before there could be an expectation or understanding of the kind adverted to by Mr Ellis, with such order issuing following a formal hearing to address the requirements of ss.66-70 of the FCCA Act in respect of the appearance, giving of testimony and making of submissions by a person other than in person before the Court: see, for example, Picos v HealthEngine Pty Ltd & Anor [2014] FCCA 640 at [40]-[71] per Judge Lucev; and in relation to similar provisions in the Federal Court of Australia Act 1976 (Cth), see Commissioner of Taxation v Oswal (No. 5) [2015] FCA 1504 at [24]-[56] per Gilmour J. Other than at the most general level of submission there is nothing before the Court to indicate any basis for Mr Ellis not to have attended the hearing of the Application on 8 March 2016. The Court notes what is said in the Application concerning Mr Ellis' inability to navigate steps or to get up and down constantly, but an answer as to the applicant's requirements when attending Court, is not evidence, and is not sufficient to establish any difficulty in actually attending the Court, either on 8 March 2016 or otherwise. There is simply no evidence as to why it is that Mr Ellis did not attend on 8 March 2016, or, critically, as to the actual nature of his disability and the effect of that disability in relation to his capacity to attend in person before the Court, or, alternatively, why it might make it necessary for him to attend any final hearing of this Application other than in person before the Court. In any event, any suggestion that it was not possible for Mr Ellis to attend Court on the hearing of the Application on 8 March 2016 is vitiated, at least to some degree, by the fact that Mr Ellis attended directions hearings and the mediation in respect of his Application in person in the Commonwealth Law Courts Perth on various dates prior to the 8 March 2016 hearing. 15. A similar factual position pertains here in relation to the situation where Mr Ellis does not appear. The Court notes that in the originating application, Mr Ellis does advert to the fact that he has difficulty getting up and down steps and also refers to depression that is caused from too much stress and anger. Again, the Court notes there is simply no evidence in relation to those issues and the same factors as are outlined in Adventureworld apply in these circumstances, save to note that Mr Ellis has not, as the Court understands it, appeared in person at the mediation or any directions hearing in this matter. 16. The Court also notes that this Commonwealth Law Court's building, at least on the face of it, has a number of disabled accesses. There is no evidence that the building is not accessible by Mr Ellis for the reasons, or to the extent that, he says it is not accessible. There is no evidence as to any arrangements (which, doubtless, can be made) that Mr Ellis has sought to make to gain access to the building. 17. In the circumstances, the Court having had no contact from the applicant prior to the hearing today in relation to this matter and his mode of appearance, or indicating that he did not intend to appear today, the Court considers that the originating application should be dismissed for non-appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) ("FCC Rules"). The Court takes the view that that approach is appropriate in the circumstances of this case. The Court also bears in mind that this is a disability discrimination claim and that the unexplained absence of an applicant may have many causes and, therefore, considers that it is more appropriate in the circumstances to dismiss for non-appearance than to endeavour to deal with the matter on the merits. Having regard to those considerations and also bearing in mind relevant case management considerations, the Court, in the exercise of its discretion, considers that the matter should not be dismissed outright, but rather be dismissed for non-appearance with costs. The Court notes that if there is a legitimate reason for Mr Ellis' non-attendance today, he can make an application pursuant to r. 16.05 of the FCC Rules to set aside any orders made today. So there will be an order accordingly with respect to the dismissal for non-appearance pursuant to r.13.03C(1)(c) of the FCC Rules. 18. In the circumstances, the Court considers that costs are appropriate, and should be awarded under the Court's costs schedule, so the Court will make an order that the applicant pay the respondent's costs in the sum of $13,783 by 16 June 2017.
NOTICE OF APPEAL 8 Mr Ellis filed a notice of appeal on 30 May 2017, containing the following grounds: 1. I never once received an important letter from the court strongly clarifying in a separate letter, the importance and absoluteness of an AFFIDAVIT from myself, requesting my usual AUDIO LINKS with the FEDERAL CIRCUIT COURT at any FINALS HEARINGS[.] 2. The [Federal Circuit Court] always knew of my AUDIO LINKS, so any concept of a mistake by me is rejected, as I just did not know I was not to receive the usual AUDIO LINK CALL. 3. Then I was awaiting a call from [the primary judge's associate] which never happened. 4. I emailed [the primary judge's associate] that day and asked why I was not AUDIO LINKED. 5. I then receive dismissal letter from [the primary judge] via email the same day. 6. The stresses and my poor disabled health at the latter half of last year has not helped me to understand minor points that were missed leading up to this hearing. 7. Court clerks were in remiss not to mention the importance of an AFFIDAVIT for FINAL HEARING. 8. The [Federal Circuit Court] knows that I cannot attend the court as VICTORIA AVENUE is just far too dangerous for me with my particular disability, so how could I have been there in person regardless of an AFFIDAVIT or not. 9. I do not have legal secretaries, clerks and the staff of [the respondent's solicitor], so it would be an affront to justice not to allow this hearing to be appealed and reheard in a non-bias manner. 10. The Federal Circuit Court have made Administration errors of their own frequently in the past and then they then wonder why things are easily missed by myself, an average man, trying to represent himself to the best of his ability, while very disability unwell. 11. These dismissals are of themselves not only unethical and immoral, but the [Federal Circuit Court] is also responsible, as when I looked back on the letters in regards to FINAL JUDGEMENTS and the importance of an AFFIDAVIT is easy for a non-lawyer to easily miss, or not even understand, as many court letters have some things on them I just do not understand and how I got this far is a simple miracle. 12. Even if I did see and understand the information slightly and ring or write to the [Federal Circuit Court] for clarity, they always state it is legal advice. Asking for the correct administration knowledge to write to the court and submit any paperwork including AFFIDAVITS is simply information, and not legal advice whatsoever. 13. The court clerks did not even tell [the primary judge] that I had sent medical reports into the [Federal Circuit Court] in the latter half of last year and this has caused me many other dismissals, delays, confusions and so many stresses that I was prone to having the same heart and stroke issues that I had in the latter half of 2016, that could easily have proven fatal and they still might if I cannot have a JUDICIAL understanding and RIGHT OF APPEAL, as being in the best interests of our courts and justice in Australia. 14. [A lawyer of the respondent's firm of solicitors] is a sleazy, depraved, defamatory and dishonest lawyer, as she demanded that this matter be dismissed, as I allegedly did not turn up, while at home I was eagerly awaiting my AUDIO LINK, which never came, yet again. She never had her defence dismissed and the court to award in favour of me when her and her client never turned up the PERTH FEDERAL COURT once in the past when I was present and I never heard her excuse of why or legally why it was allowed by [the primary judge]. WHATS [sic] GOOD FOR THE GOOSE IS GOOD FOR THE GANDER FRANKLY!
STEPS IN THE APPEAL 9 In this appeal the respondent foreshadowed an intention to apply for summary judgment: see r 36.11(2)(e) of the Federal Court Rules 2011 (Cth). Procedural orders were made to permit such an application. An application was filed and supported by an affidavit of a solicitor, pointing out amongst other matters, that when the matter was called on for hearing by the Federal Circuit Court, there was no appearance for Mr Ellis. The affidavit does not really engage with Mr Ellis' assertion that he knew about the hearing, but was anticipating receiving a telephone call, which was not forthcoming. 10 The outline of submissions in support of the summary judgment application was very brief, being in the following terms: 1. The Appeal does not identify, or in any way assert, an arguable error of law in the reasons for the judgment appealed from. 2. There is manifestly no arguable error of law in the reasons for judgment appealed from. 3. The Appeal has no reasonable prospects of success and is frivolous, vexatious, and wantonly scandalous. 4. In the premises it is respectfully submitted that the Appeal should be dismissed. 11 Before the hearing of the summary judgment application, Mr Ellis filed submissions, which I refer to now, but they do not, in anyway, touch upon the reasons for his non-appearance.
MR ELLIS' SUBMISSIONS 12 The submissions filed by Mr Ellis on 28 August 2017 in opposition to the summary judgment application were as follows: 1. AS PREVIOUSLY STATED IN MY LAST OUTLINE OF SUBMISSION BEFORE DISMISSAL & THIS APPEAL WAS MADE: This company and their lawyer cannot talk, as part 1 listed underneath this sentence will detail their own double standards and own court order failures in the past, so how can they demand any action from you or this court to dismiss my case, while declaring the case is in their favour, even when intentionally defying ORDERS of [the primary judge], when my issue of NO AUDIO LINK was not my fault. THIS IS WHAT I STATED ON THAT PREVIOUS SUBMISSION OF PART 1: 1. TO RUN LATE BY 3 DAYS TO SEND ME THE COURT ORDERED AFFIDAVIT BY 28 MARCH 2017, THEN TO ARRIVE 30 MARCH 2017, IS UNACCEPTABLE AND A DELAY JUST TO CAUSE ME DISTRESS. 2. THE AFFIDAVIT of the lawyers are intentionally hundreds of pages long and I could not possibly in 100 hundred years have the time to read, absorb, understand and answer such legal drivel in any form, especially when [the respondent] has still failed to install disabled access or even have disabled access to this very day, refuse an out of court settlement, instead paying massive legal fees to hurt a disabled person into such a state that easy mistakes or court issues could be overlooked, as they are SCAPEGOATING me, as I am not a LEGAL PRACTITIONER and have very limited or no ability to know all court legal facts and actions as easily as a LAWYER or JUDGE. 3. All of the points raised in the RESPONDENTS OUTLINE OF SUBMISSIONS are absolute bull dangle, as my points will explain to them once again. 4. All of the points raised in the INTERLCOURTORY [sic] ORDERS SOUGHT are all rejected by me as more bull dangle and chest beating by a sore loser lawyer, who knows full well that they have no merit to ask such a thing as they are leaching on me from a Dismissal that should never of happened and attacking my entire disabled health, as there would not have been able to state all of this legal drivel if this case was still ongoing and was not DISMISSED, AS DISMIISAL [sic] WAS BY DEFAULT ONLY. 1 I do not agree with a dismissal of this APPEAL, as it was not dismissed originally, only as a date was somehow missed beyond my control or even my knowledge, as I was sitting here awaiting an AUDIO LINK, so this dismissal is not sound. 2 I reject any and all cost orders either way, as I have no real assets or money and they know this to be the case and this is their fault that they hired a rip off law firm who rung up massive and unethical legal bills and as he is insured, I cannot see why I have to pay out a bill on his PUBLIC LIABILITY INSURANCE CLAIM. 3 I would ask this Honour to see that great harm will come to me if this case goes in favour of the lawyers, as they are just as guilty of this case going on and on until an alleged and easy mistake by a non-lawyer could easily occur and the stress on me has come at great cost, so they cannot expect to keep a legal case going when they refuse to place a ramp at the business, a negligibly cost to them off hundreds and they have no right to ask that I pay the massive costs of their petty HUMAN RIGHTS ABUSE INSANITY. 4 My claim is still sound and they are trying to win favour only by the fact that I missed an AUDIO LINK that were always allowed and made to me previously in this and countless other court cases, as I simply had not been told by [the primary judge] that I have to put in new requests for AUDIO LINKS, at times when I have no idea I have to put in separate requests, as I am never reminded or told I must do so. 5 I am not a legal practitioner, so I would not and could not possibly know of such actions and that also can lead to the forming of an opinion that a bias and prejudice has been placed on only me in that case. 5. If they are defaming and slandering me and trying to use the RACE CARD, even though they are true racists in the true sense of the word, as foreigners invading my country and telling me that they will not assist the people in my country who are disabled and less fortunate, so who is the true racist? 6. Double standards, outraged and offended arguments by a lawyer is simply irrelevant and PC swill and as [the primary judge] had stated to one of the other offended Asian lawyers in an unrelated case in the same objections raised and mentioned CONDUCT UNBECOMING OF A LEGAL PRACTITIONER and not to mention such things in his court and they must take their own actions if they wish and not use my case to try to manipulate the court to grant them unethical legal favours. 7. 1 I do identify and assert an arguable error of law in the reasons of the judgement appealed, as this is more of a COURT ERROR of not advising me of court dates and an AUDIO LINKS issue. 2 Yes there is an arguable error of law, as I am not a lawyer and was not told a thing about what the next steps in this court case and court dates are happening next. 3 The APPEAL does have a chance of success and as much as they try and slander me it is actually they who are the only ones being frivolous, vexatious and wantonly scandalous is them[.] 4 The Appeal should not be dismissed as they just want to be victors and hide the truth of the issue at hand, as their client still has no disability accesses and that means that they are continuing on with the abuse and I cannot attend that business, so they are SCAPEGOATING and using this as a means to VICTIMIZE me too. PREVIOUS OUTLINE OF SUBMISSION THAT BACKS MY ENTIRE CASE ON ITS STRONG MERITS: 2. I tried to negotiate a POLITE SETTLEMENT with the V BURGER BAR Directors last year and instead I received lies and self-interest from him and the lawyers of how broke and mentally ill this will make their client. Well welcome to the day to day lives of all of the disabled, the ignorant and evil little slimes of lawyers and business owners that these people truly are and represent! They also rejected their own idea of a further MEDIATION CONFERENCE, with the promise of trying to come up with some sort of a resolution. Another lie and game to play me ................... like a ........... I mean, like they are the fools. 3. The owner of V BURGER BAR is more worried about himself being put under stress and making lame excuses for why his premises are in a non-disability accessible venue, while on the other side of the carpark, at the very same leased premises, there are large ramps for access, so all the excuses and bullshit in the AFFIDAVIT about why his shop is far from accessible, simply does not wash with many with an ounce of intellect or moral codes, as I am far too intelligent and this insults my intelligence frankly and is more of the same DISABILITY HATRED, disguised as " I AM A GOOD BUSINESS PERSON, HONESTLY I AM". I can see very clearly that the director is nothing but another PSYCHOTIC DISABLED HATER, and HUMAN RIGHTS ABUSIVE CRIMINAL, who does have PUBLIC LIABLITY [sic] INSURANCE behind him, so this also proves intent to cause me further untold physical and emotional stress and torture beyond the incident. 4. Trying to make out that I could get up this step or be served by his business in some other sort of way that I am absolutely not aware of, or why should I have to do more work by phoning or thinking on my toes as a disabled person, that I am responsible for my own service at all times as a DISABLED PERSON, is sheer ARROGANCE AND IGNORANCE and this LAWYER is COMMITIING [sic] CONDUCT UNBECOMING OF A LEGAL PRACTITIONER to use further LIES, DISABLED HATRED AND DISABILITY DISCRIMINATION. I will be fighting for the DISBARRING of this LAWYER and many of the other SLIMY LAWYERS I HAVE ENCOUNTERED continually, since taking DISABILITY DISCRIMINATION COMPLAINTS out in the PERTH FEDERAL COURT. 5. V BURGER BAR and the LAWYER are just trying to buy themselves a get out of the blame card. The LAWYER and V BURGER BAR DIRECTORS have decided to become a bunch of PETTY CHILDREN and to make this case go on in an attempt to make me suffer and give up the claim. 6. Not prepared to pay me one red cent or to put in disability access and then they spend a fortune on an unscrupulous lawyer, with the sort of advice that is stealing their money, not helping them and further torturing me, a DISABLED PERSON, when this is an easy to understand case of someone has to pay and it is not going to be me. NOT ONE RED CENT FOR A RAMP OR SAFE FOOTPATHS THROUGHOUT THE ENTIRE SITE, HOWEVER PLENTY OF MONEY IN TORTURING ME THROUGH A RELENTLESS COURT CASE THAT WAS SO EASY FOR THEM TO JUST PAY UP THROUGH PUBLIC LIABILTY [sic] INSURANCE, RESOLVE DISABLED ACCESS ISSUES AND APOLOGISE. 7. How much more torture do they wish to put me through for their egos, power and sleazy legal budget? RESOLVE, RESOLVE, RESOLVE! V BURGER BAR CAUSED THE DISABILTY [sic] DISCRIMINATION, SO THEY CAN RESOLVE IT, NOT ME! 8. Disability access is UNIVERSAL for all people to use and enjoy for easy access, as well as health and safety, for the elderly, exhausted, able bodied injured, delivery staff and the unwell. 9. V BURGER BAR have me fighting in front of the Courts on something real that they are failing on toward me and the DISABLED COMMUNITY and they want to kick and scream and tell me I am the criminal for being a DISABLED PERSON. V BURGER BAR IS THE BOY WHO CRIED WOLF! NO DISABLED RAMP! 10. There is simply no compassion or consideration for the lives and feelings of DISABLED PERSONS, WHO ARE SYSTEMICALLY ABUSED ACROSS AUSTRALIA. The treatment of DISABLED AUSTRALIANS is no different than the systemic abuse and treatment of ABORIGINAL AUSTRALIANS. 12. V BURGER BAR and their LAWYERS do not understand what it means to the disabled to constantly have businesses and the government refuse to allow us access and employment. "IT IS HARD TO MAKE SOMEONE UNDERSTAND A THING WHEN THEIR SALARY DEPENDS ON THEM NOT UNDERSTAND THAT THING"! 13. They can only understand DISABILITY DISCRIMINATION if they lived with illness, systemic inaccessibly, poverty, unemployment, humiliation, shunning, abuse, violence and overlooked for almost every single opportunity, only then will they all know what suffering truly is[.] 14. There is simply no legal right when any able bodied person or entity harms us to think they have the right to use the Courts to crush us some more. 15. V BURGER BAR committed an offence by default or even intentionally does not care about the implications, public liability or duty of care toward the disabled public. 16. Grounds are disclosed in support of my Orders sought. I will make it simple for the lawyers and V BURGER BAR people. THERE IS NO ACCESS AT THE VENUE. THE WORD IS DISCRIMINATION, INACCESSIBLE AND GROUNDS-LOOK IT UP IF THE MEANING ESCAPES YOU! NO DISABLED ACCESS! 17. A Judge can order many things, including an apology to a victim, compensation from the respondent, whether that be through the companies own liability budgets, self-insurance or public liability insurance company. A judgement can easily be made to a company to smarten their act up, as we have seen many times in the media and courts over the years, so this is a disgraceful piece of embellishment, deceit, pretence, dishonesty and propaganda that the Court should never fall for. 18. This entire court case is more of their evil deceit, as they know full well that this complaint was seen, heard, investigated and terminated by HREOC, due to their procedure, when no resolution or mediation can be reached. 19. There is a distinct abuse and character assassination going on here toward myself as a disabled person, no different to ABORIGNAL [sic] AUSTRALIAN abuse and discrimination. 20. I am far from vexatious as I have dropped many claims of discrimination against corporates and have never taken it to the Courts, when new facts emerged that showed that there were facts and factors involved that made the need for court action necessary and that the matter was resolvable easily and with no real costs or losses to any person. 21. Even though V BURGER BAR have a duty of care to all people when things injure them in their premises, whether the fault of the business or the consumer, I would have missed out, due to disability. The conclusion I am stating here, is the fact that the able bodied can go about existing and hope that the duty of care and public liability will protect them and usually will, however us disabled persons are pushed aside twice, due to no entry + no access = no compensation, due to entry at risk + injury = no compensation! 22. It seems very evil that the LAWYERS and V BURGER BAR have the nerve or the Court allowance to ask one single thing of me especially when the facts are there, no disabled access + disability, means DISABILITY DISCRIMINATION, POINT BLANK! 23. The past UK PERSON OF THE YEAR, KATHARINE QUARMBY, authored a book called SCAPEGOAT - WHY WE ARE FAILING THE DISABLED, which talks very clearly about DISABILITY HATRED that has been around for thousands of years and appears now that there are laws to protect the disabled, however the systemic hatred of the disabled still exists and appears to be getting worse. 24. People use the Courts and lawyers to destroy us when we demand compensation, to serve as a punishment and to send out a wake-up call to corporates, government and community that we are here to be recognised and given the compassion that we deserve in a society that declares to have justice, liberty and compassion for those less fortunate. 25. Disabled Australians have already been pushed to the bottom of society with unemployment, poverty, homeless and a lack of opportunities and a life without the good life. Systemic discrimination, violence, abuse, humiliation, and hate crimes are rampant against the disabled in Australia. We are already distressed enough and excluded from most of life's joys, so V BURGER BAR has no excuse for allowing discrimination and then bullying me with a lawyer and defaming my good nature. 26. All other entities that I have lodged formal disability discrimination complaints to HREOC and the FEDERAL COURT over, have either gone through mediation or out of court settlements, so what makes V BURGER BAR any more special or legally immune from disability discrimination, over other corporate or government entities? NOTHING AT ALL, EXCEPT FOR CRIMINAL INTENT TO HARM ME EMOTIONALLY AND PHYSICALLY! 27. The damages relate to my emotional harm and suffering, by being put through all this extreme stress and torture of a court case, as a discriminated disabled person, at the hands of a business and an immoral, unprincipled and greedy law firm, who could have declined to act on this case, as they are allowed to choose. 28. A strong duty of care and public liability, or any form of discrimination, must be strongly scrutinised and 100% prevented by any business and if not, court action is easily inevitable. Goods and services were to be provided at this store for the benefit of all Australians. 29. This is a moral and ethical issue, as much as it is a legal or a court issue, so I denounce all other court cases as being relevant to myself, as I am an ethical, honest, disabled, living, breathing man, under the watchful eye and compassionate hand of God. 30. I do have reasonable prospects of success for a claim, as I have identified the goods and services and I have disclosed a basis for a claim in fact and law. 31. V BURGER BAR are implicit for not caring or having a duty of care, as they leased a venue that is inaccessible. 32. V BURGER BAR are lacking in morals and reasoning, as there is no failure on my part or that of the claim, that they speak of. 33. There is nothing scandalous, frivolous or vexatious in my claim, as disabled suffering and human rights abuse are well understood and when you are pushed far enough, we all have a breaking point when our very survival and existence is at stake. 34. ABORIGINALAUSTRALIANS [sic] know this type of suffering all too well, as do the disabled in Australia in 2015, who are treated basically the same as Aboriginal Australians. 35. PUBLIC LIABILTY [sic] INSURANCE is a party to the claim, however not directly through this discrimination, however they are the party V BURGER BAR has to talk to, when a claim is demanded for compensation. 36. When you are a DISABLED PERSON in AUSTRALIA, you only have to mention a small amount of these words, DISABLED, HELP, EMPLOYMENT, FINANCE, DISCRIMINATION, ABUSE, HUMILIATION and 99.99% of society blame us for the society being SYSTEMICALLY DISABILITY DISCRIMINATIVE and DISABILITY HATE CRIMINALS. 37. This is not about GOVERNMENT or LEGAL rules, laws or codes, made up mostly by men with money, power and able bodied but it is about Godly compassion, morals and principals laws. THE LAWS OF THE BIBLE ARE THE ONLY LAWS OF ALL MEN POINT BANK! 38. The U.N, states very strongly that the disabled are to be treated with the utmost decency, care, compassion, morals, justice, liberty, consideration, inclusion, financial and employment benefits. V BURGER BAR and their LAWYERS have blatantly defiled most of these points and have gone one step further to then, humiliate and cause me untold emotional and physical anxiety and drag me through the courts, spending a fortune to destroy me and defame me for having an exceedingly valid and strong argument under the laws of MAN AND GOD. By law, by default, Australia is a MEMBER of the U.N. and on the U.N. SECUIRTY [sic] COUNCIL, therefore it is under AUSTRALIAN GOVERNMENT LAW and LEGISLATION that the U.N. RULINGS ON THE TREATMENT FOR DISABLED PERSONS exists fully as a legal obligation in all STATES and TERRITORIES OF AUSTRALIA. 39. Manipulating me to provide proof of this in the court, is the same as trying to convince the courts that the Earths sky is blue 100% of the time, regardless whether it is night or cloudy. It is a poppy cock argument and of itself is a corrupt, deceitful and evil attempt to destroy my credibility and insult my intelligence and as such is more of the same vile and evil DISABILITY HATRED and DISABILITY DISCRIMINATION that is suffered by all DISABLED AUSTRALIANS daily and with relentless psychopathic zeal. V BURGER BAR AFFIDAVIT OF MARCH 2017: 1. The AFFIDAVIT of [the Director of the Respondent, filed in the proceedings before the Federal Circuit Court] should be struck out in its entirety, as this is my claim against him, not the other way around, as it is nothing but PANDERING, APOLOGIST & VICTIM SHAMING OF A DISABLED PERSON TO WHOAH IS ME FOREIGNER SOB STORIES, as this is MY COUNTRY OF ORIGIN FIRST & FOREMOST. 2. As a DISABLED PERSON, I am hopping mad that he seems to have been given more favour to make a success of it, while I live in abject poverty and constant discrimination and unemployment, so I find his comments to be a TOTALLY RACIST & DIRTY DISGRACE, to a WHITE DISABLED CHRISTAIN [sic] AUSTRALIAN, who has done a lot for my country and have been kicked in the guts for it, while he is favoured and he is a foreigner who has been here for 10 minutes and I could not give one damn about him or his problems. 3. If I went to ISLAMIC INDONESIA and acted as the DISABLED HUMAN RIGHTS ACTIVIST in INDONESIA, I would be murdered by HIS COWARDLY MUSLIM COUNTRIES PEOPLE & GOVERNMENT. HIS LAWYERS SHOULD BE ASHAMED OF THEMSELVES FRANKLY! 4. His points he raised in PARAGRAPH 3 - 9 are what I have also done in my own country but cannot receive due to the DO GOODER & SOCIALIST APPROACH of AUSTRALIA, who prefers to help THIRD WORLD PEOPLE and make AUSTRALIANS THIRD WORLD INSTEAD! Helping the very INCOMPATIBLE FOREIGNERS such as himself, who is insulting me physically and intellectually, really does not make me want to hit him up for more compensation. 5. HUMAN RIGHTS ABUSE IS WELL RECEIVED AND ACCEPTED IN HUMAN RIGHTS ABUSIVE ISLAMIC INDONESIA, BUT BEING IGNORANT OF HUMAN RIGHTS ABUSE IN A CHRISTIAN BACKGROUND NATION, IS ABSOLUTELY NOT A DEFENCE IN LAW IN AUSTRALIA AT ALL! 6. PARAGRAPH 7, I find the word CHRISTMAS to be a bit unusual, as he is more than likely a MUSLIM, so to sue such a time precious to us WHITE CHRISTIANS, I find this is to dupe the court into feeling he is one of us, he is not, he is none of us. 7. PARAGRAPH 15. Since I became a DISABLED PERSON, I have had to work harder, just to have a life. 8. PARAGRAPH 10 - 25 IS A LOAD OF ABSOLUTE BULLSHIT THAT HAS NO BARING ON THE FACT THAT THERE IS NO RAMP TO THE BUSINESS AND I AM NOT A MIND READER, MIND YOU IF I WAS, HIS WOULD BE A SHORT BROCHURE ON TALKING BULLSHIT THAT IS AN AUSTRALIAN COMMENT FOR HIM!! 9. How the hell could I access his service, no ramp remember that. 10. To make out that the V BURGER BAR is MCDONALDS, who themselves have crap disability access and services with some DISABLITY [sic] ACCESS, but not that much, V BURGER BAR is telling a lie, as he does not have their infrastructure or policies to support me 100%. 11. PARAGRPAH [sic] 27. How the HELL can there be a record of my attendance when I never entered the store, due to NO RAMP, the NIMROD! 12. If there is NO RECORD of my complaint, the buffoon, why did I complain to HREOC? That is the record thanks very much. He admits there is no ramp there, so I must have attended to know there is no ramp at that business, the knuckle head. 13. If he is so poor and doing it so tough, he can go back to INDONESIA then, as how the HELL is there 3 branches and one at ELIZABETH QUAY. He will be one of the sleazy FOREIGN BILLIONAIRES in a few years, particularly y if this business franchisees out. He is not a small concern; he is becoming a big concern in business. 13 Mr Ellis opposed the summary judgment application, but because Mr Ellis was unrepresented, I permitted him to later file an affidavit explaining on oath the substance of the matters pertaining to his non-appearance. I did so in his interest as the grounds of appeal did not disclose any error of law. No application not to appear at the final hearing before the primary judge had been made, nor such an order granted. The notice of appeal does not support otherwise. 14 Mr Ellis subsequently filed an affidavit on 18 September 2017, which simply says: 1. This is my AFFIDAVIT in regards to my previously court submitted OUTLINE OF SUBMISSIONS in my NOTICE OF APPEAL. 2. The information contained is true to the best of my knowledge and my limited legal knowledge. 15 There is no verification of the matters set out in the notice of appeal and, as indicated above, the submissions, which Mr Ellis filed on 28 August 2017, in which he purports to verify, do not touch on the matters raised in the notice of appeal as to a telephone call sufficing as an appearance. 16 The grounds of appeal relate to the reasons for non-appearance, but when given the opportunity to verify those matters, Mr Ellis has not done so. 17 When the adjourned hearing was resumed on 27 October 2017, after filing of his brief affidavit, Mr Ellis chose not to seek to apply in the Federal Circuit Court to have the decision of the primary judge to dismiss the application because of default of appearance by Mr Ellis, made pursuant to r 13.03C(1)(c), be set aside under r 16.05 of the Federal Circuit Court Rules 2001. Nor, when this was pointed out to him, did he seek to consider that possibility. The respondent even offered to consent to that course to the extent it was within its power to do so. Rather, Mr Ellis focussed on racist attacks on the respondent and other complaints against the respondent's representatives and the courts.
CONSIDERATION 18 None of the grounds of appeal, the submissions or Mr Ellis' affidavit suggest that any application by Mr Ellis for leave was made or an order made to not appear in person at the hearing. This is particularly notable given that he had been informed by the same judge of such a requirement in earlier hearings.
CONCLUSION 19 Nothing in the materials filed by Mr Ellis supports any entitlement to not appear in person, especially against a background of express warnings in other cases. An expectation or assumption as to a telephone appearance is not the same as a grant of leave to not appear at the final hearing. There are no prospects of success in the appeal, which must be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.