FEDERAL COURT OF AUSTRALIA

Ellis v Swan Taxis Pty Ltd [2017] FCA 1542

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time and leave to appeal is dismissed.

2.    The Applicant pay the Respondent’s costs to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KERR J:

1    Mr Ellis commenced proceedings in the Federal Circuit Court of Australia (the Federal Circuit Court) on 10 May 2017, seeking relief under the Disability Discrimination Act 1992 (Cth). The Respondent made an application that the proceedings be summarily dismissed as frivolous and vexatious. Mr Ellis sought leave to appear by telephone at the hearing of that application. His request was denied. Mr Ellis did not appear at the hearing. The proceedings were dismissed on 1 August 2017 pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) and reasons published on 2 August 2017. On 17 September 2017, Mr Ellis filed an application for extension of time and leave to appeal that decision with this Court.

federal circuit court procEedings

2    The judgment of Street J sets out the background to the proceedings, and the circumstances of Mr Ellis’ request to appear by phone. Mr Ellis sent a facsimile to the court seeking leave to appear by telephone. That request was refused. Mr Ellis emailed the registry in response on 19 July 2017. That email is reproduced in his Honour’s reasons at [9]:

You cannot deny me audio link at all and if it is refused and this case is dismissed [I] will go to the [C]hief [J]ustice and the [A]ttorney [G]eneral, citing corruption, contempt of court and perverting the course of justice. All cases at this court have all been audio link regardless of which court location is hearing it, so to do this is a crime and a human rights abuse and [I] will expect a call on the day regardless of your ideology or communication breakdown.

You got that Joe

3    With respect to that email, his Honour held (at [10] – [11]):

10.    That email, on its face, was something that again gives rise to a potential offence by the applicant under s.474.17 of the Schedule to the Criminal Code Act 1995 (Cth). The reference to the threat of an allegation of corruption was a serious and inappropriate step for the applicant to take. It is not appropriate for the applicant to use telecommunication services to send offensive or threatening material. More than that, the email was actually sent to the Court in response to a communication from the Court. The email sent by the applicant was a potential contempt of the Court, and had the applicant attended Court today the Court would have explored with him the conduct that he engaged in and whether the papers should be referred to the DPP or a charge of contempt should be laid.

11.    The Court made an order, on 20 July 2017, in the following terms:

    THE COURT ORDERS THAT:

1.    The latest request by the applicant to appear by audio link under Division 5, Part 6 of the Federal Circuit Court of Australia Act 1999 (Cth) on 1 August 2017 at 2:15 p.m. (AEST) at the hearing as to whether the proceedings should be summarily dismissed is refused.

2.    Any further application for the applicant to appear by audio link must be made by application in a case supported by affidavit evidence.

3.    The applicant will be given the opportunity to be heard on 1 August 2017 at 2:15 p.m. (AEST) as to whether he should be charged with contempt by reason of the sending of the email dated 19 July 2017 to the Court in the following terms:

“You cannot deny me audio link at all and if it is refused and this case is dismissed i will go to the chief justice and the attorney general, citing corruption, contempt of court and perverting the course of justice. All cases at this court have been audio link regardless of which court location is hearing it, so to do this is a crime and a human rights abuse and i will expect a call on the day regardless of your ideology or communication break down.

You got that Joe

The above email be the applicant, which was not copied to the other side, was in response to an email dated 19 July 2017, sent by the senior associate on behalf of the Court, copied to the representative of the respondent:

“Dear Mr Ellis,

Any communication to the Court must be copied to the opponent.

Your request for telephone attendance is refused.

Kind Regards,

Joe Piercy

Chambers of Judge Street

Federal Circuit Court of Australia

80 William Street, Sydney NSW 2000

Associate Phone (XX) XXXX XXXX

Deputy Associate Phone (XX) XXXX XXXX

Fax: (XX) XXXX XXXX

Email: XXXXXXXXXXXXXXXXXXXXXXXXX

The COURT DIRECTS THAT:

1.    The applicant file and serve any affidavit evidence and/or written submissions in response to order 3 above on or before 26 July 2017.

2.    The applicant to ensure that any further communication to the Court is the subject of identified copying to the representative of the respondent.

By the Court

JUDGE STREET

DATE ENTERED: 21 July 2017

(Contact details redacted)

4    Notwithstanding the unambiguity of those orders, Mr Ellis sent a further email to the court requesting to appear by phone. Mr Ellis did not file any affidavit material establishing why he could not attend the Federal Circuit Court, and did not appear at the hearing of the Respondent’s interlocutory application for dismissal on 1 August 2017.

5    His Honour heard and determined the Respondent’s application that the proceedings be dismissed. The judgment cover sheet for his Honour’s reasons erroneously records that the hearing of the Respondent’s interlocutory application for dismissal took place on 2 August 2017. It is evident that that application was heard on 1 August 2017, that orders dismissing the proceeding were issued on that same day, but that his Honour’s reasons for dismissal were published on 2 August 2017.

6    Judge Street had regard to Mr Ellis’ affidavit material and submissions. With respect to that material, his Honour held (at [7]):

The applicant’s submissions and affidavit fall well short of establishing that the proceedings are not frivolous and vexatious. Rather, much to the surprise one might have thought of a person alleging a disability, the applicant engaged in racist rants in the material that he provided to the Court to justify these proceedings as being other than vexatious. That was entirely inappropriate conduct by the applicant. I have taken into account the principles and caution in Spencer v Commonwealth (2010) 148 CLR 118 at [24], [51-56] in considering the application of s.17A of the Federal Circuit Court of Australia Act 1999 (Cth).

7    His Honour concluded that Mr Ellis’ failure to appear at the hearing was a deliberate decision not to attend in response to the refusal of his request to appear by phone:

18.    The applicant has been called outside the Court and has failed to appear, In these circumstances, it is one where the respondent seeks to have the proceedings dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). The failure to appear by the applicant, in the circumstances of the present case, was deliberate. The applicant’s communications to the Court identified an insistence, on his part, that he be allowed to appear by telephone.

19.    The Court gave the applicant the opportunity to put on an application in proper form, and an affidavit supporting a basis upon which any request for telephone appearance could be justified. No such step was taken by the applicant in response to that opportunity. There is no material before the Court to justify why the applicant has not appeared today other than it being apparent that the applicant made a decision not to attend.

8    The reasons of Street J set out the circumstances giving rise to Mr Ellis’ disability discrimination allegation. Mr Ellis had alleged that the Respondent discriminated against him on the basis of his disability during the course of a phone call that took place between Mr Ellis and an employee of the Respondent. The primary judge set out the details of that phone call at [2] of the judgment. His Honour then set out the following at [3]:

3.    The applicant’s application seeking relief for alleged disability discrimination is completely wanting in any proper identification of any differential treatment or conduct engaged in allegedly on the basis of the applicant’s disability. The applicant’s complaint, at its highest, concerns alleged erroneous information in respect of the hire cost and rate for use of a multipurpose taxi that can carry wheelchair people. That erroneous information in relation to the pricing did not reflect any conduct revealing any issue of alleged contravention of the Disability Discrimination Act 1992 (Cth).

before this court

9    Mr Ellis’ application for extension of time and leave to appeal was, as is required by r 35.14 of the Federal Court of Australia Rules 2011 (Cth) (the rules), accompanied by a draft notice of appeal, and an affidavit annexing the reasons for judgment from which leave to appeal is sought. The application for extension of time and leave to appeal stated that Mr Ellis sought to have the application set down for hearing with an “audio link”.

10    The Grounds of application contained in the application for extension of time and leave to appeal are:

1.    Previous medical evidence for continuances of AUDIO LINK granted by JUDGE LUCEV for countless years of all court dates and cases, always granted for the PERTH FEDERAL COURT location, for my distinct disabilities, safety and security needs and this was ignored by the ASSOCIATE of and then JUDGE STREET himself, even after I made HUMAN RIGHTS PLEADINGS of the fact.

2.    JUDGE STREET did not consider that this was not any failure on my part, as I did write to the court and told them that AUDIO LINK was never REMOVED by JUDGE LUCEV at any previous time in countless court cases, dates and years at the PERTH FEDERAL COURT.

3.    The lawyers used this to [harm] my case DISABILITY DISCRIMINATION, these lawyers were acting deceitful and inhumane to use my disabled ill health to attack me with it and so they could simply win and have the case dismissed.

Other applications

1.    I wish to have the application dealt with at an oral AUDIO LINK hearing.

2.    The applicant applied for an order dispensing with compliance with rule 35.13.

11    The Grounds of appeal set out in the draft Notice of appeal are as follows:

1.    Case heard without me present and then dismissed.

2.    Miscarriage of justice.

3.    Perverting the course of justice.

4.    Contempt of Court by a JUDGE.

12    The affidavit reads as follows:

2.    The facts of which the application relies is that JUDGE STREET did not allow a continuance of the very same AUDIO LINK granted dozens of times by 2 different JUDGES LUCEV and [McKerracher] and 2 different REGISTRARS, TROTT and LEE, over multitudes of cases of the same types and once in this SWAN TAXIS court case.

3.    JUDGE STREET was not acting in the interest of justice and as such he was in error, which lead to a TRAVESTY OF JUSTICE and PERVERTING THE COURSE OF JUSTICE and could be seen as leading the court down a path of unnecessary and unfair INJUSTICE and opening the doors to HUMAN RIGHTS ABUSE, CORRUPTION and CONTEMPT OF COURT by a judge who should know better as a FEDERAL JUDGE.

4.    Lawyer ODIRISIO for SWAN TAXIS agreed with the [judgment] and PERVERTED THE COURSE OF JUSTICE and he should be DISBARRED and no longer allowed to represent SWAN TAXIS as this represents GROSS INJUSTICE, MISCONDUCT and CONDUCT UNBECOMING OF A LEGAL PRACTITIONER.

5.    This appeal is late, as I have been fighting for an answer from high level court figures [to] have the decision overturned but instead received abuse, lies and slander instead.

6.    I wrote to CHIEF JUSTICE [Allsop] about these cases intentionally being ran and then dismissed by JUDGE STREET, who also denied AUDIO LINK, then placed me on trial, threatened me with CONTEMPT OF COURT, then went on to defame me by calling me a RACIST, even though it is my case for DISABILITY DISCRIMINATION, not SWAN TAXIS RACIAL DISCRIMINATION case, while in full knowledge and ignoring me when I protested that I strictly cannot physically attend the PERTH FEDERAL COURT and always have the AUDIO LINK, due to logistical, technical, safety and security reasons and the letter of advice to JUDGE LUCEV from my GP many years ago stating this fact.

submissions

13    Parties were asked to file and serve short submissions on the application for extension of time and leave to appeal prior to the hearing of the application. Mr Ellis responded that due to health issues and medical appointments he doubted whether he would be able to provide written submissions prior to the hearing. Mr Ellis’ health issues were not identified. He sought no adjournment. In any event, no written submissions were filed.

14    The Respondent filed written submissions outlining its opposition to the grant of an extension of time and leave to appeal. The Respondent’s grounds, set out at [1], are:

(a)    There is no reasonable explanation for the Applicant’s delay in bringing the application;

(b)    The underlying case is wholly without merit; and

(c)    The Applicant’s conduct in pursuing the litigation:

See Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 and Parker v R [2002] FCAFC 133.

15    The Respondent submits at [3] that no reason has been given for the delay apart from the assertion by Mr Ellis that he has been “fighting for an answer from high level court figures”, and that no evidence has been filed by Mr Ellis in support of that assertion.

16    With respect to the merits of the application, the Respondent cites his Honour’s findings at [3] and [8] of the judgment, and submits at [7] – [9]:

7.    The Court gave the Applicant the opportunity to put on an application and an affidavit supporting the basis on which any request for a telephone appearance could be justified. No such step was taken by the Applicant in response to that opportunity: see paragraph 18 of Reasons for Decision.

8.    Other than vague references to what has happened in other matters, the Applicant has still not produced any evidence in support of his claim that he cannot attend the Court in person.

9.    Finally, the Applicant continues to cast aspersions on the integrity of the Court and its officers by accusing:

(a)    His Honour of perverting the course of justice, corruption and contempt of Court; and

(b)    the lawyer for the Respondent of perverting the course of justice, misconduct and conduct unbecoming a legal officer.

All of these allegations are wholly without foundation and unsupported by any evidence.

17    At the hearing of the application, Mr Ellis was invited to make oral submissions. Mr Ellis criticised the Respondent’s submissions at length and made the following submissions in relation to the application:

Well, it’s the same thing, your Honour, about my ill-health; still dealing with the judges that wouldn’t allow audio link over here in Perth for some – for illogical reasons I can’t fathom, when it was always audio-linked to this particular court and they were told over and over and over. But anyway, I don’t know why that happened. And even one of the judges … threatened me with contempt of court. And I told him to get knotted, because I told him, “Well, yes, you will hear it by audio link, because it has always been heard” – and that didn’t come forward, He threatened me with contempt of court. I said, “Go to hell.”

(Transcript p 5 lines 35-43)

…The delays are there because of misunderstandings, arguments, forgetting certain court dates that you’ve – you’re not audio link and you didn’t know, and this is twice this has happened, and for me to go to all this trouble, I doubt I would be doing it intentionally … why would I be taking now and getting so peeved off if I wasn’t trying to resolve a situation that isn’t necessarily 100 per cent my fault? I’m just an average Joe trying to get some rights for myself as a disabled person to stop missing out or being treated like garbage by foreign people that work for most of these companies in Perth.

(Transcript p 6 lines 31-40)

relevant provisions

18    The requirement to seek leave of the Court to appeal an interlocutory judgment is set out in s 24 of the Federal Court of Australia Act 1976 (Cth):

24    Appellate jurisdiction

(1)    Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine:

…

(d)  appeals from judgments of the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth other than:

(i)  the Family Law Act 1975; or

(ii)  the Child Support (Assessment) Act 1989; or

(iii)  the Child Support (Registration and Collection) Act 1988; or

(iv)  regulations under an Act referred to in subparagraph (i), (ii) or (iii); …

(1A)     An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.

(1B)      Subsection (1A) is subject to subsection (1C).

(1C)     Leave to appeal under subsection (1A) is not required for an appeal from a judgment referred to in subsection (1) that is an interlocutory judgment:

(a) affecting the liberty of an individual; or

(b) in proceedings relating to contempt of the Court or any other court.

(1D)     The following are taken to be interlocutory judgments for the purposes of subsections (1A) and (1C):

                     …

(ca) a judgment of the Federal Circuit Court under section 17A of the Federal Circuit Court of Australia Act 1999;

…

19    Pursuant to r 35.13 of the rules, an application seeking leave to appeal must be filed within 14 days of the date of judgment, or before the date fixed by the Court for doing so. Rule 35.14 provides as follows:

Extension of time to seek leave to appeal

(1)    A person who wants to apply for an extension of time to seek leave to appeal must file an application, in accordance with Form 118.

(2)    The application may be made during or after the period mentioned in rule 35.13.

(3)    The application must be accompanied by the following:

(a) the judgment or order from which leave to appeal is sought;

(b) the reasons for the judgment or order, if published;

(c) an affidavit stating:

(i) briefly but specifically, the facts on which the application relies; and

(ii) why the application for leave to appeal was not filed within time; and

(d) a draft notice of appeal that complies with rules 36.01 (1) and (2);

(e) a statement by the applicant of whether the applicant wants to have the application considered without oral argument.

Note 1    The Court may grant an extension of time, and hear and determine the application for leave to appeal, at the same time.

Note 2    An application under rule 35.12 or 35.14 will be heard and determined by a single Judge unless the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it appropriate to hear and determine the application.

Note 3    File is defined in the Dictionary as meaning file and serve.

consideration

20    The considerations relevant to determination of an application for extension of time and leave to appeal are summarised by McKerracher J in Singh v Minister for Immigration and Border Protection [2017] FCA 150 (Singh) at [19]:

The power in the Court to extend time under r 35.14 is discretionary. The considerations relevant to the Court’s discretion are whether there is an acceptable explanation for the delay; whether there is undue prejudice to another party; and whether there is merit in the substantial application: Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 and Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

21    Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186: (1984) 3 FCR 344 is regularly cited as authoritative regarding the principles relevant to applications for extension of time generally (see page 348 of the decision of Wilcox J). It is not necessary to set those passages out – insofar as they are relevant to these proceedings they are entirely consistent with the observations of McKerracher J in Singh set out above.

Explanation for delay

22    The order dismissing the proceedings was issued on 1 August 2017 and the judgment published on 2 August 2017. The 14 day period in which Mr Ellis was required to seek leave to appeal that decision pursuant to r 35.13 lapsed on 16 August 2017. Mr Ellis lodged his application for extension of time and leave to appeal on 17 September 2017. That application was 32 days out of time.

23    The explanation given by Mr Ellis for the delay in seeking to appeal the decision of Street J is at [5] of his affidavit:

This appeal is late, as I have been fighting for an answer from high level court figures and have the decision overturned but instead received abuse, lies and slander instead.

Mr Ellis has not given any details about what steps he took in relation to the above, or how it prevented him from lodging an application for leave to appeal within the prescribed time limit.

24    At the hearing of this application, Mr Ellis made reference to the delay being caused by his health, and because of “misunderstandings, arguments, forgetting certain court dates.” Mr Ellis did not seek to tender any evidence of how his health, or any other factor, had prevented him from seeking leave to appeal the decision of Street J, nor did he expand on that explanation in his oral submissions.

Prejudice

25    In its written submissions, the Respondent did not advance submissions that it would be prejudiced if the Court were to grant the extension of time and leave to appeal, other than its submissions at [11] that:

The Respondent should not be required to spend further time and money responding to the Applicant’s misconceived and, ultimately, baseless allegations and the application for an extension of time should be dismissed with costs.

26    The Respondent did not make oral submissions at the hearing of the application, and sought to rely wholly on its written submissions.

27    Any delay in the filing of an application for leave to appeal inevitably results in some prejudice to a respondent. McHugh J in Gallo v Dawson [1990] HCA 30; 93 ALR 479 commented at 481 that:

When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a “vested right to retain the judgment.”

28    The Respondent was entitled to expect that, after the time limit for filing a notice to appeal had passed, the decision of Street J had finalised the dispute. However, because the Respondent does not seek to rely on such prejudice, I have not taken that factor into account as weighing against the application.

Merits

29    An assessment of the merits of the application for leave to appeal requires consideration of “[w]hether the decision at first instance was attended with sufficient doubt to warrant it being reconsidered and whether substantial injustice would result if leave were refused, supposing the decision at first instance was wrong”: per Sheppard, Burchett and Heerey JJ in Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at page 397.

30    The proposed grounds of appeal advanced by Mr Ellis in his application for extension of time and leave to appeal, affidavit, and draft notice of appeal set out at [10] to [12] above, do not allege any legal error in the decision of Street J. Rather, the grounds express a general dissatisfaction with the decision and focus on the fact that Mr Ellis was not granted leave to appear by phone and that the hearing proceeded in his absence.

conclusion

31    It is clear from Mr Ellis’ response to emails from court staff that he understood that he would not be allowed to appear by phone unless he made an application supported by an affidavit establishing why he could not attend. Mr Ellis did not file any such affidavit and did not attend the hearing. His absence was a deliberate act. In these proceedings, Mr Ellis did not suggest otherwise. The fact that Mr Ellis had previously been granted leave to appear by phone by a different judge of that court in other proceedings, did not require Street J to also grant leave. The fact that the hearing proceeded in his absence, when he had been notified of the listing and the requirement that he attend in person, does not establish an appealable error in the decision.

32    I am not convinced that, if an extension of time were granted, an application for leave to appeal would have any merit on the basis that Mr Ellis was denied the opportunity to participate in the hearing. Nor is there any other discernible error of law in the decision of Street J. I am not satisfied that the proposed appeal has any prospect of success.

33    The application for extension of time and leave to appeal is dismissed.

Associate:

Dated:    21 December 2017