FEDERAL COURT OF AUSTRALIA

Ellis v Kanyana Wildlife Rehabilitation Centre Inc [2017] FCA 1543

ORDERS

THE COURT ORDERS THAT:

1.    The application for an 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    On 3 December 2014 Mr Ellis filed a disability discrimination application with the Federal Circuit Court of Australia (the Federal Circuit Court). The Respondent applied for summary dismissal of the proceedings. Mr Ellis wrote to the registry of the court to request to appear by phone. Mr Ellis was informed by the registry that he could appear by telephone if he filed with the court and served on the respondent a medical certificate detailing why he was unable to attend. Mr Ellis replied to that email, informing the court that he would not be providing a medical certificate. The application was heard on 9 August 2017. Mr Ellis did not appear and Smith J dismissed the proceeding pursuant to s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) and published reasons.

2    Judge Smith’s reasons set out the background to the application for summary dismissal that was before his Honour. Mr Ellis had commenced proceedings in the Federal Circuit Court alleging disability discrimination. In response to an application from the Respondent, Mr Ellis was granted leave to amend his statement of claim and did so. A subsequent application was made by the Respondent to have the amended statement of claim struck out or the proceedings dismissed. Orders were made striking out the statement of claim and granting leave to file a further statement of claim. Mr Ellis filed a further document consisting of: medical certificates outside the period relevant to the alleged discrimination; the statement of claim that had previously been struck out; and a document containing statements and allegations not relevant to the facts pleaded in the statement of claim.

3    At [19] Smith J concluded that Mr Ellis’ failure to file a revised statement, instead seeking to rely on a statement of claim that had been struck out by order of the court, constituted an abuse of process.

4    Judge Smith accepted that the additional material filed by Mr Ellis addressed in part the shortcomings of the statement of claim, but held that there was no connection between the disability and the discrimination alleged to be based on that disability.

5    At [26] his Honour said:

In my view, these proceedings were not only an abuse of process because they were hopeless, and because they were brought for an ulterior purpose as expressed in [12] of Mr Ellis’ attachment to his statement of claim, but also because they are vexatious as being so obviously untenable, or manifestly groundless, as to be utterly hopeless and brought for collateral purposes and not for the purpose of having the Court adjudicate on the issues to which they give rise.

6    Judge Smith concluded that Mr Ellis’ refusal to attend court or provide a medical certificate establishing his inability to do so reinforced the decision to dismiss the application.

before this court

7    On 3 October 2017 Mr Ellis filed an Application for extension of time and leave to appeal to the Federal Court of Australia. The grounds of application were set out as follows:

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 SMITH himself, even after I made HUMAN RIGHTS PLEADINGS of the fact.

2.    JUDGE SMITH 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 applies for an order dispensing with compliance with rule 35.13.

(Emphasis in original)

8    In compliance with r 35.14 of the Federal Court Rules 2011 (Cth) (the rules), Mr Ellis also filed on 3 October 2017 an affidavit and a Notice of appeal from the Federal Circuit Court setting out the following Grounds of appeal:

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.

(Emphasis in original)

9    The affidavit contained the following:

2.    The facts of which the application relies is that JUDGE SMITH 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 always in this KANYANA case.

3.    JUDGE SMITH was not acting in the interests 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.    Lawyers for KANYANA agreed with the JUDGMENT and PERVERTED THE COURSE OF JUSTICE and they should be DISBARRED and no longer allowed to represent KANYANA 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 and 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 SMITH, who also denied AUDIO LINK, while being in the full knowledge and ignoring me when I protested that I strictly cannot physically attend the PERTH FEDERAL COURT and always have 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.

(Emphasis in original)

submissions

10    Both 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.

11    The Respondent filed submissions outlining its opposition to the application. Relevantly, the Respondent submits that no adequate explanation for the delay had been given by Mr Ellis (at [6] – [7]):

6.    The Applicant’s stated reason for the delay in lodging the appeal is set out in paragraph 5 of Mr Ellis’ affidavit sworn 17 September 2017 – essentially he was awaiting a decision from “high level court figures” about his dissatisfaction generally with the conduct of the first instance hearing and the first instance decision by Judge Smith on 9 August 2017. However, there are no particulars as to the issue of timeframes.

7.    Further, there is no or no adequate explanation for the length of the delay. The reason to explain the delay is wholly unsatisfactory. It is neither a valid reason nor a reasonable or plausible one. In any event, ignorance of the time in which to commence an appeal is ordinarily not, of itself, an adequate explanation sufficiently to justify the grant of an extension of time (SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319).

12    With respect to the issue of prejudice, the Respondent submits the following:

8.    The event(s) as a result of which the Applicant alleges unlawful disability discrimination are said to have taken place in or about June 2014 – some 3 ½ years ago.

9.    The Respondent is a not-for-profit organisation principally run by volunteers. Turnover of personnel is quite high and that makes it difficult to defend the original complaint.

10.    Further, the dimming of memories with the passage of time is detrimental to the defence of the original complaint.

11.    Any prejudice to the Respondent, including any prejudice in defending the proceedings, occasioned by the delay is a material factor militating against the grant of an extension (see Hickey v Australia Telecommunications Commission (1983) 47 ALR 517 (Hickey) at 535-527 and Wedesweiller v Cole (1983) 47 ALR 528 at 533 – 534). However, the mere absence of prejudice is not enough to justify the grant of an extension (see Hickey at 523).

13    The Respondent further submits that the application lacks merit, as the grounds raised by Mr Ellis relate largely to the refusal to allow Mr Ellis to appear by phone, rather than the grounds on which the application before Smith J was dismissed.

14    During the hearing, Mr Ellis made oral submissions that the extension of time and leave to appeal should be granted:

… With the extension of time, there should be because the anomalous nature of this occurring in the first place was the fact is that … has audio links here in Perth because I can’t attend the Victoria Avenue court very well because of the layout of the street, actually, not so much the building, and there’s certain factors there that are involved. And I didn’t know that – I had to keep talking to them … and Judge Lucev has always heard me by audio link for the very same reason, and then it came to the stage where I decided, well, I’ve got to bite the bullet and get new medical – if they’re not going to listed, I’m going to have to do all this stuff, they wanted me to jump through hoops.

Now the thing is too, it is valid because even the original problem with not understanding that I wouldn’t get an audio link with Judge Lucev for another part of this case, I had no idea what was going to happen. So a lot of that happened without me realising that would be the case. So this secondary appeal is because the judge over in Perth just wouldn’t allow me to sit by audio link which was grossly unfair, particularly, when it has already happened scores of times with the judge that had handled these cases before. So I just think there is merit in what I’m saying too because I think, clearly, what the client and the Archon Legal are trying to say is they should get let off the hook because I – the anomalous nature of the fact that I didn’t do this on purpose. So I just really think that there is merits involved with an extension of time, even the appeal, because my case has merits in and of itself too.

(Transcript p 2 line 35 – p 3 line 9)

relevant provisions

15    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;

…

16    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

17    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.

18    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

19    The Federal Circuit Court decision was delivered on 9 August 2017. The 14 day time period for the filing of an application for leave to appeal pursuant to r 35.13 lapsed on 23 August 2017. Mr Ellis lodged his application on 17 September 2017, 25 days out of time. This is not an insignificant delay. The only explanation given by Mr Ellis for his failure to file within the specified time appears at [5] of his affidavit sworn 17 September 2017, where he deposes:

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.

20    Mr Ellis has not provided details of what steps he has taken in “fighting for an answer from high level court figures” or how this prevented him from filing an application for leave to appeal. I am satisfied that no satisfactory explanation has been given for the delay in filing.

Prejudice

21    The Respondent submits that it would be prejudiced by the granting of an extension of time and leave to appeal on the basis that the relevant events took place some three and a half years ago, that the passage of time and resulting fading of memory will impact its capacity to defend the original complaint, and that, as a not for profit organisation principally run by volunteers, the high turnover of staff would make it difficult to defend the original complaint.

22    While it must be accepted that, in large part, any difficulties faced by the Respondent in defending the original claim due to the passage of time would be a result of the more than three years that have passed since the relevant events, rather than the specific consequence of any delay in Mr Ellis seeking to appeal the decision of Smith J, nonetheless, Mr Ellis added to that delay.

23    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.”

24    The Respondent was entitled to expect that, after the time limit for filing a notice to appeal had passed, the decision of Smith J had finalised the dispute. I am satisfied that there will be some, albeit modest, prejudice to the Respondent if the extension of time is granted.

Merits

25    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.

26    The proposed grounds of appeal in Mr Ellis’ application for extension of time to seek leave to appeal, draft notice of appeal, and affidavit, set out at [7] – [9] above, do not identify any error in the reasoning of the decision of the primary judge. The grounds articulated by Mr Ellis are general in nature, asserting “miscarriage of justice”, “perverting the course of justice” and “contempt of court by a judge”, without alleging any error in interpretation or application of law.

27    The proceedings before Smith J were dismissed for a number of reasons. The application made to the Federal Circuit Court was not regarding discrimination that was substantially the same as that alleged before the Australian Human Rights Commission, nor did it arise out of the same acts, omissions or practices that were the subject of the terminated complaint, as required by s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth).

28    Further, the applicant had not, through his statement of claim and accompanying documentation, pleaded a connection between the disability and the asserted discriminatory conduct of the respondent. Judge Smith concluded that the proceedings were “vexatious” and “manifestly groundless”. At [28], his Honour added:

It seems to me that my conclusion is fortified by the fact that Mr Ellis refuses to come to Court to address the Court face to face, in circumstances where his is also unwilling to provide a medical certificate to establish his inability to do so.

29    Mr Ellis has not advanced before this Court an arguable case that the decision of Smith J involved an error of law. I am not convinced that the proposed appeal has sufficient merits to warrant the exercise of the discretion to extend time for the filing of an application for leave to appeal.

30    Mr Ellis also advances as a ground of appeal the fact that he was not granted leave to appear by phone and that the hearing proceeded despite his non-attendance.

31    It is clear from his Honour’s inclusion of correspondence between Mr Ellis and court staff at [2] – [7] of the decision, that Mr Ellis requested to appear by phone, but was notified that he was required to attend in person. It is also evident from his Honour’s reasons that similar requests had been made by Mr Ellis in other proceedings before the Federal Circuit Court.

32    Mr Ellis had been notified that he was required to attend in person, or provide a medical certificate establishing why he was unable to attend. It is apparent that Mr Ellis understood that requirement given his responses. Mr Ellis was not entitled to demand that he appear by phone, even if such a request had previously been granted by a different judge of the court in other proceedings. The manner in which parties participate in proceedings is a matter for the presiding judge, and the fact that Mr Ellis had previously been granted leave to appear by phone did not require other judges to also grant such 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.

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

Associate:

Dated:    21 December 2017