FEDERAL COURT OF AUSTRALIA

Ellis v Silver Vision Pty Ltd trading as Arirang Korean BBQ Restaurant & Café [2018] FCA 333

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The applicant to pay the costs of the respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

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.

THIS APPLICATION

6    This is an application for an extension of time to appeal from the decision of the primary judge in Ellis v Silver Vision Pty Ltd trading as Arirang Korean BBQ Restaurant & Café (No 2) [2017] FCCA 151 (Arirang Restaurant (No 2)).

7    The conduct of the appeal was referred to me for case management. In due course, were the appeal to proceed, the Chief Justice would determine whether or not the appeal is to be determined by a single judge or by a Full Court.

8    In the meantime, as part of the appeal management, it has become necessary to deal with Mr Ellis’ application for an extension of time and the respondent’s objection to competency. The respondent objects to competency on the basis that the accompanying draft notice of appeal is in the incorrect form, the application does not specify whether the whole judgment is appealed, the grounds of appeal are embarrassing and fail to disclose any error in the Federal Circuit Court or arguable case and the third ground of appeal is scandalous.

9    Mr Ellis brought a claim for disability discrimination. Various orders were made in both for the filing of documents including affidavits and submissions: Ellis v Silver Vision Pty Ltd trading as Arirang Korean BBQ Restaurant & Cafe [2016] FCCA 907 (Arirang Restaurant (No 1)), where the Federal Circuit Court dealt with and dismissed an application for security for costs by the respondent, and in the summary decision the subject of appeal before this Court in Arirang Restaurant (No 2). According to the primary judge, there was failure to comply with the orders and a failure to seek an extension of time for compliance.

10    On 24 January 2017, proceedings against the respondent were dismissed for non-compliance with orders.

THE DECISION OF THE PRIMARY JUDGE

11    The primary judge noted that:

(a)    The originating application had been made under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) alleging disability discrimination under the Disability Discrimination Act 1992 (Cth) (DD Act) against Mr Ellis by the respondent (at [3]).

(b)    In Arirang Restaurant (No 1), the Court dealt with and dismissed an application for security for costs by the respondent, and in the course of so doing made observations as to the prospects of success of Mr Ellis’ application as it then stood (at [4]).

(c)    In Arirang Restaurant (No 1), the primary judge observed (at [15]) that the application was not then properly particularised and Mr Ellis had not then filed any evidence, but went on to observe (at [16], [18] and [20]) that:

16.    There can be no doubt on the evidence filed by [the respondent] that there was no ramp, or other infrastructure, available to facilitate access to the premises for a person who could not use the steps. Indeed, [the respondent’s] case is that its employed staff would physically assist disabled persons into the restaurant, after the disabled persons had requested assistance. Whether or not that physical assistance precludes a finding of disability discrimination in relation to access to the premises, or constitutes a reasonable adjustment for the purposes of s.5(2) of the DD Act, is a matter which can only be determined at a hearing upon the evidence led at hearing. As the Court discussed with Counsel for [the respondent] at hearing the fact that a disabled person, unlike a non-disabled person, has to stand outside the restaurant, attract the attention and assistance of employees inside the restaurant, and then be physically assisted into the [respondent’s premises], with the possible indignity that that might entail for some disabled persons, must make the Application on its face at least arguable as a case of direct discrimination under s.5(1) of the DD Act. The Application is, therefore, not without prospects of success.

[…]

18.    [The respondent’s counsel’s] comments concerning whether or not Mr Ellis is disabled, or otherwise as to the extent of his disability and his capacity to access the [respondent premises] via the steps have been disregarded by the Court. [The respondent’s counsel] gave no evidence of having any qualifications which would enable him to assess whether Mr Ellis has a disability, or whether Mr Ellis could, given the extent of any disability, access the [respondent] premises via the steps. Further, the Court regards it as unhelpful that a person involved in the litigation without expert qualifications to assess disability, or the capacity of a person with a disability to access premises, proffers an inexpert opinion, especially where that inexpert opinion is not said to be based upon any personal observation of Mr Ellis endeavouring to walk up or down the [respondent’s premises’] steps, or any steps. The fact that there are apparently only two steps, and that they are only 33cm high, is also a matter upon which the Court places no weight: the number and height of the steps is of no assistance without a knowledge of the nature and extent of Mr Ellis’ disability, and his capacity to walk up or down steps of any height, which evidence can probably only come from expert medical practitioners and allied health professionals.

[…]

20.    For reasons set out above, the Court is of the view that the Application is not without prospects of success. In that regard, the Application is still in its very early stages in relation to the Court’s processes, and in those circumstances to impose a security for costs order at this stage would in the Court’s view be oppressive because it may stultify a claim which, on the materials presently before the Court, is legitimate and is not without prospects of success.

(d)    Arirang Restaurant (No 1) was delivered on 22 April 2016, and the matter was adjourned to a further directions hearing (at [6]).

(e)    The matter next came before the Federal Circuit Court on 16 June 2016, together with four other claims by Mr Ellis, and the following orders were made (at [7]-[8]):

1.     [Mr Ellis’] affidavits in support of the claim be filed and served by 16 August 2016.

2.     The respondent’s affidavits in opposition to the claim be filed and served by 16 October 2016.

3.     [Mr Ellis’] outline of submissions be filed and served by 16 December 2016.

4.     The respondent’s outline of submissions be filed and served by 16 January 2017.

5.     The matter be listed for hearing at 10.15am on 16 March 2017.

6.     Costs be reserved.

(f)    On 5 August 2016, Mr Ellis filed an affidavit (Mr Ellis’ August 2016 Affidavit) in the following terms (transcribed without amendments) (at [9]-[10]):

1.     I make this affidavit to affirm that I was discriminated against by Arirang and will be filing outline of submissions by 16 October 2016.

2.

I have suffered physical and mental damage to a higher degree than able bodied people. as I rely on businesses to make sure that they have disability access and a duty of care.

3.

My health has been severely damaged by immense emotional stress.

4.

[The respondent] does have a billion dollar multinational insurance policy and what I am asking for in disability and injury compensation would come from the public liability insurer.

5.

I want $1 million in compensation as [the respondent] has caused me immense emotional injury and distress, caused by their negligence and a lack of duty of care or adequate access. I was further treated with contempt, as my stresses and anxiety did not matter to them or [the lawyers].

6.

[The respondent] is paying a fortune in legal fees, but refuses to even negotiate on a settlement with me on the compensation factor.

7.

I have lost myself totally, due to [the respondent’s] not so kind, kind.

8.

I have had to fight constantly for my dignity, respect, safety, against disability discrimination, disability inaccessibility, the fight for my human rights and acknowledgment, as well as adequate actions that should have been taken, without the need for court action.

9.

This immense stress and running around to court and printing off material has damaged me mentally and physically, as I suffer from depression and a physical disability, that can make me subject to shocking falls and muscle strain, if I am pushed to do more than I usually do in my day to day activities.

10.

Going to court and facing sleazy lawyers, who will never defend me or the disabled, but will fight me and the disabled and further damage our worth, dignity and respect, has made me irritable, sad. sleepless, anxiety ridden and aggressive toward those I love, due to enduring this enhanced and unnecessary suffering, due to [the respondent’s] lack of care or compassion for a disabled person, that their very own duty of care failed to protect and ensure that I was not discriminated against or injured physically or mentally by their poor business practices.

11.

My life and that of the disabled is already diminished enough by the government, business and the general community, with injustice, poverty, unemployment, lack of adequate access and disability discrimination, without [the respondent] further harming my already damaged body and emotions, due to a disability I was not born with or created by my own self harm, misadventure or neglect.

12.

[The respondent’s] lawyer [Mr X], has defamed, victimized and used a THIRD PARTY to do so, with HEARSAY. Double standards, using a violently abusive female called […], while being his own racist, to a white, Christian, disabled person, male and an Australian larrikin from non-convict stock.

13.

[The respondent’s counsel] [Mr X] then had the nerve to stand up in court to use my larrikin Australian personal views on his legal and citizenship credentials to try and destroy my credibility. l [sic] see him as nothing more than the true racist, as he is a true foreigner in my country, using the COMMONWEALTH COURTS to preach his race rights, while taking away my race rights and committing disability hatred along the way.

14.

With the paragraph above, this is nothing more than [the respondent] and [the respondent’s solicitors] acting with corruption, collusion and conspiracy, to commit acts of defamation, victimisation, perjury, fraud and [the respondent’s counsel] [Mr X] practising CONDUCT UNBECOMING of a LEGAL PRACTITIONER.

15.

No disability access, defamation, victimisation, hearsay and excusing DISABILITY DISCRIMINATION and DISABILITY HATRED, is an affront to humanity, disabled persons, Australia and the courts.

16.

If [Mr X] or [the respondent] try the race card to try and destroy my justice and liberty, then this proves racial and disability hatred, as I would not do this to them in disgusting evil and corrupt CHINA, where they come from. I would have no rights in CHINA either way, as a true fact of the matter.

17.

There is no race card here, just DISABILITY HATRED. [The respondent’s counsel] [Mr X] and the ARIRANG directors are not even a race either way we look at, as they are from foreign and incompatible regions of Earth and are acting outside of humanity, which is a race.

18.

The fact that [the primary judge] already berated [Mr X] In open court and dismissed the fast action of [the respondent’s solicitor] to have me listed as a VEXATIOUS LITIGANT and pay 10,s of thousands of dollars up front, it is offensive to me and our sacred courts and proves outright that I have a case and plenty of evidence and facts to win my claim.

(g)    On 26 October 2016, ‘Mr Y’ filed a notice of change of lawyer indicating that Mr Y had been appointed to represent the respondent in place of ‘Mr X’ (at [12]).

(h)    On 22 November 2016, the matter came before the Federal Circuit Court again. There was no appearance by Mr Ellis and the Court’s endeavours to contact him by telephone were unsuccessful. Mr Y appeared for the respondent. Mr Y made the argument that Mr Ellis’ August 2016 Affidavit did not deal with the (at [13]):

… threshold issue – is Mr Ellis disabled, to what extent is he disabled and is he disabled such that he would not be able to access this premises via the steps … [there is] no medical evidence in relation to that threshold issue, which makes it very difficult for the respondent, in terms of how to address the case, and, in fact, whether any affidavit evidence should be filed on behalf of the respondent …

(i)    Mr Y sought that there be some documentary evidence, at least, of Mr Ellis’ disability filed before the matter could be properly heard (bearing in mind it was listed for final hearing on 16 March 2017) (at [13]).

(j)    The Court made the following orders on 22 November 2016 (at [14]):

1.    [Mr Ellis] file and serve a list of documents to be relied on at hearing on by 6 December 2016.

2.    [Mr Ellis] provide copies of the documents in the list in order 1 to the respondents by 6 December 2016.

3.    The matter be listed for a further directions hearing at 9.30am on 8 December 2016, with leave to the respondent to apply for summary dismissal of the application in the event of non-compliance with orders 1 and 2.

4.    No order as to costs.

(k)    The directions hearing on 8 December 2016 was administratively adjourned and on 13 January 2017, Mr Y filed an affidavit referring to the Federal Circuit Court’s orders of 22 November 2016 and indicating that Mr Ellis had not (at [15]-[16]):

(i)    served a list of documents; and

(ii)    provided copies of documents to the respondent.

12    The primary judge then described what occurred at a directions hearing on 24 January 2017.

13    The primary judge pointed out that this matter was one of a number of matters listed at 11.30 am on 24 January 2017 for directions. Earlier that morning, at 10.00 am, the Court had delivered a number of judgments in relation to matters in which Mr Ellis was involved. His Honour said that to give what occurred at the directions hearing in this matter some context it was necessary to briefly set out a summary of those judgments. His Honour did so as follows (at [18]-[24]):

Context – earlier judgments delivered on 24 January 2017

18.    In Ellis v Kanyana Wildlife Rehabilitation Centre Inc [2017] FCCA 89 at [52] per Judge Lucev (“Kanyana Wildlife”), the Court concluded that:

a)    Mr Ellis’ Statement of Claim did not allege discrimination which:

(i)    is the same, or the same in substance, as the discrimination alleged in the relevant complaint to the Australian Human Rights Commission (“AHRC”); or

(ii)    arises out of the same, or substantially the same, acts, omissions or practices that were the subject of the relevant complaint to the AHRC;

b)    Mr Ellis’ Statement of Claim did not identify the disability alleged, or how the discrimination arises because of any disability alleged;

c)    Mr Ellis’ Statement of Claim should be struck out in its entirety; and

d)    Mr Ellis should be granted leave to file a further Statement of Claim within a prescribed time.

19.    In Ellis v Left Bank Holdings Pty Ltd [2017] FCCA 90 at [8] per Judge Lucev (“Left Bank Holdings”), the Court dealt with an application in a case by the respondent that Mr Ellis file and serve a full Statement of Claim setting out the basis of his claim against the respondent, and any affidavits in support of his Statement of Claim, and for discovery of relevant documents. In Left Bank Holdings at [36] per Judge Lucev the Court concluded that:

a)    Mr Ellis was to file a Statement of Claim and affidavits in support of the Statement of Claim; and

b)    that the Court would not make a declaration or order in relation to discovery at the stage at which the proceedings had reached.

20.    In determining that Mr Ellis was to file a Statement of Claim and affidavits in support of the Statement of Claim the Court:

a)    had regard to the fact that Mr Ellis’ Originating Application in those proceedings failed to provide any detail as to his disability, or as to the basis upon which he claimed to have suffered discrimination because of his disability;

b)    adverted to the fact that any Statement of Claim filed by Mr Ellis must set out the fact of any disability that he has upon which he relies for the purposes of the proceedings, and the extent of that disability insofar as it is relevant to those proceedings, and the existence and identify of any assistance dog or animal that he uses in relation to the disability; and

c)    noted that Mr Ellis was required to set out the disability relied upon in relation to the alleged discrimination, and to specify why it is that the alleged discrimination was because of the disability, citing Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92; (2003) 78 ALJR 1; (2003) 202 ALR 133; (2003) 77 ALD 570; [2004] EOC 93-305 (“Purvis”); Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 101 ALD 459; [2008] EOC 93-493 (“Gama”).

Left Bank Holdings at [17]-[18] per Judge Lucev.

21.    In Ellis v Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust T/A Rottnest Express & Ors [2017] FCCA 88 at [48] per Judge Lucev (“Wadjemup Trading”), the Court set out a history of non-compliance with various orders of the Court over a number of months, before dismissing Mr Ellis’ application alleging disability discrimination against the second respondent (the Fremantle Port Authority (“FPA”)) for non-compliance with orders made by the Court in June 2016 and August 2016. It is pertinent to note that the June 2016 orders required Mr Ellis to file and serve a factual summary articulating the acts or omissions of the FPA that he alleged amounted to a breach of the DD Act, and to provide further facts and particulars in relation to those alleged acts or omissions, and that the August 2016 orders required Mr Ellis to file and serve an outline of submissions in relation to FPA’s application in a case to dismiss his application as against the FPA because of non-compliance with the June 2016 orders: see Wadjemup Trading at [17] and [19] per Judge Lucev.

22.    In Ellis v Rottnest Lodge (1989) Pty Ltd Trading As Rottnest Lodge [2017] FCCA 84 (“Rottnest Lodge”) the Court had before it an application in a case for a communication restraint order and substituted service wherein the respondent sought to prevent Mr Ellis from communicating with it (and its solicitors) and for a form of substituted service whereby the Court served relevant documents on Mr Ellis: Rottnest Lodge at [2] per Judge Lucev. Those orders were sought because of a communication sent by email by Mr Ellis to a legal assistant at the respondent’s solicitors which the Court described as “vile”: Rottnest Lodge at [15] per Judge Lucev. For reasons set out in Rottnest Lodge the Court ultimately dismissed the respondent’s application in a case for orders against Mr Ellis, and there was no order as to costs: Rottnest Lodge at [36] per Judge Lucev.

23.    In each of Kanyana Wildlife, Left Bank Holdings and Wadjemup Trading costs were ordered against Mr Ellis for $4,010.50, $3,470.00 and $4,958.00 respectively.

The directions hearing – transcript

24.    As indicated above, this matter was one of six matters involving Mr Ellis and applications alleging disability discrimination listed for directions hearings against various respondents at 11.30am on 24 January 2017. This matter was called at 11.54am, and what occurred is best reflected by setting out the relatively short transcript of the directions hearing, which was as follows:

HIS HONOUR: Yes. In this matter there were orders on the last occasion for you, Mr Ellis, to undertake to file certain documents as I recall it.

MR ELLIS: Which one is this, again? Which case, sorry?

HIS HONOUR: This is Silver Vision.

MR ELLIS: Yes. And they know full well I’m sick – was sick, too.

HIS HONOUR: [Mr Y], you - - -

MR ELLIS: And why would I – why would I submit anything more? I’ve already said it.

HIS HONOUR: [Mr Y], you appear for [the respondent].

MR ELLIS: This dickhead is appearing for another smackface. Shit. Can’t win. Bloody traitorous asshole working for smackfaces. They’re not even Australians you piece of shit.

HIS HONOUR: Mr Ellis, you’ve not complied with the orders of the court made on the last occasion to file certain documents. Do you propose that anything should be done in relation to the matter.

MR ELLIS: How can I do it when I’ve already told you I have a medicate certificate, which – your court staff are hiding on purpose, too, so don’t sit there and talk to me about being bad when you’ve got corrupt people working there or purpose.

HIS HONOUR: Mr Ellis - - -

MR ELLIS: Now listen, I’m not - - -

HIS HONOUR: Mr Ellis, no affidavit material has been filed.

MR ELLIS: Why would it be filed. I said they know that I wasn’t available - - -

HIS HONOUR: Well - - -

MR ELLIS: - - - because I’ve been unwell and off the system for months because of my unwellness.

HIS HONOUR: All right.

MR ELLIS: Part of it caused by their stress, their stupidity. [The primary judge], why don’t you go down there for lunch and look at the fact they don’t have a ramp and make a decision just based on your own eyes instead of putting me through more crap. I mean, this is insane crap. This isn’t justice, it’s sick.

HIS HONOUR: [Mr Y] - - -

MR ELLIS: All right. I’m not doing anything more about this matter. You make your sleazy judgments and they can win. I don’t give a shit what you do because you’re going to let them win anyway (laughs).

HIS HONOUR: All right.

MR ELLIS: Was [Mr Y] one of your gay lovers on the weekend? Is he? Probably. Probably.

HIS HONOUR: [Mr Y], do you seek an order to – dismissing the matter for non-compliance.

[MR Y]: Yes, I do, your Honour.

HIS HONOUR: All right. There will be an order in those terms. Do you seek costs?

[MR Y]: Yes, I do.

MR ELLIS: Good luck with that, asshole (laughs). You piece of shit (laughs).

[MR Y]: You may also like to not [sic], your Honour, that this matter is listed for a trial on 16 March - - -

HIS HONOUR: Yes.

[MR Y]: - - - this year, so that will become available – that hearing date.

HIS HONOUR: All right. Well, there will be an order dismissing the matter for non-compliance. There will also be an order that [Mr Ellis] pay the respondent’s costs. Do you seek them on the basis of the schedule or indemnity costs, [Mr Y], in the circumstances?

[MR Y]: Indemnity basis, your Honour.

HIS HONOUR: All right. Well, I think it’s an appropriate case for the reasons that I will make clear in due course, that [Mr Ellis] pay the respondent’s costs on an indemnity base, those costs to be assessed by a registrar of this court.

MR ELLIS: Not paying anything.

HIS HONOUR: And, (3) that reasons for judgment in relation to orders 1 and 2 be published electronically from chambers at a later date. All right. The orders in those terms. The court will adjourn until 2.15.

14    The primary judge then dealt with r 13.03A(1) and r 13.03B(1) of the Federal Circuit Court Rules 2001 (Cth) (at [26]-[27]). His Honour then (at [28]) cited his own decision in Ellis v Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust T/A Rottnest Express & Ors [2017] FCCA 88 (at [26]-[32]).

15    The primary judge said that it was plain that Mr Ellis had not complied with orders 1 and 2 of the Federal Circuit Court’s orders of 22 November 2016. His Honour continued (at [29]):

… In ordering the dismissal of Mr Ellis’ Application against Arirang Restaurant by reason of that non-compliance, the Court had regard to:

a)    the Court’s comments in Arirang Restaurant (No 1) where it determined that the Application was not without prospects of success, but that the proceedings were at a very early stage, and that Mr Ellis had not filed any evidence, had not particularised his disability, and had not filed any expert evidence concerning his disability: Arirang Restaurant (No 1) at [15]-[20] per Judge Lucev. The comments made by the Court in Arirang Restaurant (No 1) make it plain that there is a necessity to file evidence, including expert evidence so as to identify the relevant disability, and identify that the alleged discrimination is because of that disability. The necessity to do so is well established: DD Act, s.5(1) and (2); Purvis; Gama at [90]-[91] per French and Jacobson JJ. In Gama a ground of appeal in relation to alleged disability discrimination was successful because Mr Gama made “no attempt … to identify a disability which allegedly caused the less favourable treatment”: Gama at [90] per French and Jacobson JJ, and the first instance court “did not identify the relevant disability nor the particular way in which the remarks constituted less favourable treatment because of the disability”: Gama at [91] per French and Jacobson JJ;

b)    Mr Ellis’ August 2016 Affidavit is in large part irrelevant and scandalous, and therefore inadmissible: Sims v Jooste & Ors (No.3) [2016] FCCA 1751 at [24]-[30] per Judge Lucev, and fails to:

i)    indicate with any particularity what actually happened, when it happened or where it happened; and

ii)    identify how the alleged discrimination was based on the particular disability, that is that [Mr Ellis] was discriminated against “because of” a disability;

c)    the Court’s inability to have regard at a final hearing to material contained in the AHRC complaint, as that forms no part of the Originating Application, or any relevant pleading, save for the purposes of ascertaining whether or not the Originating Application is in relation to substantially the same alleged acts of discrimination as was the AHRC complaint: Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573; (2000) 105 IR 153 at [37]-[41] per Katz J; Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118; (2010) 63 AILR 101-302 at [46]-[48] and [50] per Marshall, Rares and Flick JJ; Kanyana Wildlife at [27]-[29] per Judge Lucev;

d)    the fact that by the time that the Court made orders 1 and 2 of the orders made on 22 November 2016 Mr Ellis was generally aware of the requirement to set out his case with a sufficient degree of specificity of the material facts so as to define the issues and inform the other party of the case that had to be met: Chang v CST Minerals Lady Annie Pty Ltd [2015] FCA 620 at [19]-[21] per Mortimer J. The Court had made the orders referred to as the June 2016 Orders above in the Wadjemup Trading case, which required Mr Ellis to serve a factual summary articulating the acts or omissions alleged to constitute discrimination and to provide further facts and particulars in relation to the alleged acts or omissions (in that case of the FPA): see [23] above. In Ellis v FJM Property Pty Ltd [2016] FCCA 808 (“FJM Property”) in dismissing an application by the respondent to appear by a non-lawyer the Court observed that a paucity of information, in that case in both the Originating Application and the Response, meant that it was not possible to discern with any certainty on the face of the documents the precise or relevant factual matrix relating to the allegation of disability discrimination made by Mr Ellis: at [25] per Judge Lucev, and in relation to the quantum of compensation sought (being $1 million in that case as well) that expert evidence of the loss or damage suffered by Mr Ellis would be required to assist the Court in determining such compensation: at [28(b)] per Judge Lucev. FJM Property was delivered on 13 April 2016. In Ellis v Adventureworld (WA) Pty Ltd As Trustee of The Adventureworld Unit Trust [2016] FCCA 2504 (“Adventureworld”), a judgment delivered on 30 September 2016, this Court in dealing with an application for costs against Mr Ellis set out a passage from the judgment of the Full Court of the Federal Court in Manolakis v Carter [2008] FCAFC 183 at [12] per Spender, Graham and Tracey JJ (“Manolakis”) where the Full Court said that:

12    An aggrieved self-represented applicant must, like any other litigant, address:

•    his or her standing to make claims against other persons,

•    the jurisdiction of the court in which he or she wishes to make those claims,

•    the precise identity of the parties against whom the claims are to be made,

•    the relief that is to be sought, and

•    the facts which are said to found an entitlement to that relief.

e)    Mr Ellis’ submissions at the directions hearing on 24 January 2017 made it plain that he thought he had “already said it”: […], and was “not doing anything more about this matter”: […] and that he did not care what the Court did because the Court was making “sleazy judgments” and the Court would “let them win anyway”: […], which were plainly references to the judgments of the Court referred to at [18]-[22] above. No matter how misguided Mr Ellis’ basis for concluding that he will not do anything more in relation to this matter is, it is the case that that is his position, and it is therefore futile for the Court, against the background set out above, including the non-compliance with orders 1 and 2 of the 22 November 2016 orders, to continue to make orders which will plainly not be complied with, and will result in ongoing non-compliance: Lenijamar at 396 per Wilcox and Gummow JJ;

f)    it would be futile for this matter to proceed to the presently listed final hearing on 16 March 2017 in circumstances where:

i)    Mr Ellis bears the onus of proof generally: Ferrus v Qantas Airways Limited [2006] FCA 812; (2006) 155 IR 88 at [48] per Collier J; Vassollo v Jetswan Pty Ltd [2010] FMCA 708 at [20] per Lloyd-Jones FM (“Jetswan”) (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: DD Act, s.6; Jetswan at [20] per Lloyd-Jones FM (and cases there cited), but Mr Ellis has filed no affidavit, or any other material, capable of fulfilling the onus of proof;

ii)    the lack of materials, and the refusal to file any further materials, means that Mr Ellis has put no materials before the Court as to the conduct alleged to constitute disability discrimination (including a clear factual statement as to when, where and how the discrimination occurred), or whether the discrimination is direct or indirect, and importantly in a disability discrimination case, there is no indication as to what disability Mr Ellis suffers from, or how any disability actually gave rise to any discrimination. Nor is there any 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); and

iii)    it is not sufficient for Mr Ellis to merely establish a terminated complaint, that he is an affected person, and for him to allege unlawful discrimination, or to assert that any failings in the “pleadings” (in this case, materials before the Court) did not necessarily have to plead out or establish every element of the alleged unlawful discrimination: Shurat HaDin, Israel Law Center v Lynch (No. 2) [2014] FCA 413 at [36]-[37] per Robertson J; and

g)    to proceed to a final hearing would be to prejudice Arirang Restaurant by causing further costs to be incurred, in circumstances where by reason the inadequacy of Mr Ellis’ August 2016 Affidavit, the failure to comply with the November 2016 orders, and the indication that Mr Ellis proposes to do nothing further in relation to the matter, there is effectively no evidence giving rise to a case which requires an answer from Arirang Restaurant.

16    The primary judge also noted that Mr Ellis suggested during the course of the directions hearing on 24 January 2017 that he had a medical certificate which was being hidden from the primary judge by the Federal Circuit Court staff, and that he had been ‘unwell and off the system for months because of my unwellness’ (at [30]). In order to prove that he was medically unfit at the time at which he was required to comply with the 22 November 2016 orders, the primary judge noted that Mr Ellis would have been required to provide evidence on oath which properly explained his medical condition and why it prevented him from complying with those orders (at [31]).

17    Where an indulgence (such an adjournment, an extension of time or a release from the consequences of non-compliance with court orders) is sought from a court on the basis of an alleged medical condition, the primary judge noted that the requirement to file evidence on oath properly explaining the medical condition is well established (at [32]). His Honour referred (at [33]) to NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 per Lindgren J (at [5]-[10]):

5    The medical certificate dated 13 December 2003 in respect of the male applicant states as follows:

‘This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.’

The certificate of the same date in respect of the female appellant states:

‘This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.’

6    The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.

7    I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ – apparently each was able to attend upon the medical practitioner.

8    If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.

9    I take into account the fact that the two medical certificates are structured identically, use the expression ‘he/she’, and are dated the same day, which was only two days before the hearing. The certificates have the appearance of being pro forma certificates which are available for the asking.

10    In any event, even accepting the certificates on their face, I find them unpersuasive for the reasons given at [6]–[8] above.

18    The primary judge also cited Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 per Collier, Griffiths and Mortimer JJ (at [48]-[49]); BYF15 v Minister for Immigration & Border Protection [2016] FCA 774 per Perry J (at [35]) and WZAWB v Minister for Immigration and Border Protection & Anor (2016) 309 FLR 398 per Judge Lucev (at [98]).

19    The primary judge confirmed that the Federal Circuit Court had reviewed the court file which revealed no document (be it by way of letter, email or court filed document) in this matter, either at or about the time that Mr Ellis was required to file documents in accordance with the orders made on 22 November 2016, or otherwise, which indicated that Mr Ellis was ill or unwell, at or about the relevant time (being November 2016 to January 2017). There was no basis upon which Mr Ellis could justify the non-compliance with the 22 November 2016 orders of the Federal Circuit Court on the basis of a medical condition or illness, because there was no evidence of those matters before the Court (at [38]).

20    As to the inspection suggestion, his Honour noted that Mr Ellis endeavoured to make some suggestion that his non-compliance might be justified by the fact that the Federal Circuit Court had not gone down to the Arirang Restaurant for lunch, looked at the fact that they do not have a ramp, and made a decision ‘just based on your own eyes’ (at [39]). The Federal Circuit Court had, of course, his Honour said, undertaken inspections in particular cases, and more often than not an inspection would be required where it was alleged that there is disability discrimination in relation to access to premises. To suggest, however, that the Federal Circuit Court go on an inspection of its own was to invite the Court into error, and, in particular, to invite the Court to embark upon a course which would give rise to a reasonable apprehension of bias or a denial of procedural fairness (at [40]). In making this observation, the primary judge cited Re JRL; Ex parte CJL (1986) 161 CLR 342 per Mason J writing for the majority comprised also of Gibbs CJ and Brennan J (at 350); Re Media, Entertainment and Arts Alliance & Anor; Ex parte Hoyts Corporation Pty Limited and Ors (1994) 119 ALR 206 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ (at 210); and Le v Magistrate Barbara Lane [2014] WASC 494 per EM Hennan J 9at [34]).

21    The primary judge also explained the indemnity costs by reference to the improper conduct of Mr Ellis (at [45]-[48]). His Honour, in noting that the unreasonable conduct of a party may form the basis of an order for indemnity costs, relied upon Colgate-Palmolive Company & Anor v Cussons Pty Limited (1993) 46 FCR 225 per Sheppard J (at 233), Fazio v McNally [2014] WASCA 79 per Pullin and Newnes JJA; Lance v QAV Pty Ltd [2013] WASC 13 per McKechnie J (at [21]-[22]); Manolakis v Carter [2008] FCAFC 183 per Spender, Graham and Tracey JJ (at [9]); Sims v Jooste & Ors (No 4) [2016] FCCA 2011 per Judge Lucev (at [89]-[98]) and Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 225 per French J (at 8).

22    In this instance the primary judge noted (at [49]):

(a)    as early as 23 May 2015, the respondent’s then solicitors wrote to Mr Ellis requesting a detailed explanation for each claim, but as is evident from the primary judge’s reasons and those in Arirang Restaurant (No 1), no proper particulars of Mr Ellis’ claim were ever provided to the respondent;

(b)    on 21 June 2015, Mr Ellis sent an email to the respondent’s then solicitors threatening that if they did not give in to his demands he would take an elder discrimination claim on behalf of his elderly mother in addition to his disability discrimination claim, and threatened to increase the amount claimed to $5 million (from the $1 million in the application);

(c)    Mr Ellis published on Facebook a letter to Mr X, the respondent’s then solicitor, in which he said that Mr X’s name was a ‘poof name in Australia’, and asked whether he was ‘shafting your boyfriend client’ and asked whether the firm’s name was ‘[…] GAY LICK’, and went on to make various disparaging observations about the national and racial characteristics of the proprietors of the respondent, including describing them as ‘Chinese criminals’, ‘deceiving worms’, people with ‘narrow mind and narrow sight’ and ‘cowardly yellow skin’ and inviting them to ‘open the zippers on your eyes and lean forward to stop the slope angles on your mind from blocking your vision’;

(d)    at the hearing of the security for costs application on 10 March 2016, the Federal Circuit Court told Mr Ellis that this case was not about Mr X, whom Mr Ellis had adverted to as being of ‘Asian background’;

(e)    Mr Ellis’ August 2016 Affidavit:

(i)    contains material largely irrelevant to the establishment of a claim of disability discrimination, being comment, opinion and argument, rather than fact related to the claim before the Court; and

(ii)    engages in criticism, none of it relevant to Mr Ellis’ actual claim, and much of it scandalous, directed towards Mr X; and

(f)    at the directions hearing on 24 January 2017, Mr Ellis’ conduct was wholly reprehensible, and included:

(i)    racist slurs (including the use of the words ‘smack face’) against the respondent and those involved in and associated with it;

(ii)    disgraceful and unwarranted abuse of the respondent’s new lawyer, Mr Y; and

(iii)    an implication that the primary judge was not impartial, including an assertion, which is not true, that the primary judge and Mr Y were engaged in an undisclosed sexual relationship.

23    His Honour said that the reprehensible abuse and untruthful assertions made by Mr Ellis in these proceedings were an affront to the administration of justice, and no court, and no lawyer appearing in a court, should have to put up with them, stating, that the Federal Circuit Court was therefore of the view that the above circumstances warrant an award of indemnity costs in these proceedings, and that the nature of Mr Ellis’ conduct in this matter as a whole warrants the Federal Circuit Court exercising its discretion such that the award of indemnity costs ought to extend to all of the proceedings in this matter (including the application for security for costs in respect of which the respondent was not successful).

IN THIS COURT

24    By an application for an extension of time, handwritten, dated 31 March 2017, Mr Ellis applied for unspecified relief against the respondent, indicating he did not intend to serve the application on any party. The application was subsequently supported by an affidavit of Mr Ellis in the following terms (which are identical to an affidavit filed in Troy Ellis v Scentre Shopping Centre Management (WA) Pty Ltd trading as Westfield Shoppingtown Carousel Pty Ltd (WAD 121 of 2017)):

…

2.    I was unwell and unfit for court for the latter part of 2016 and continuing into early 2017 and 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 lodgment 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.

…

25    A notice of objection to competency was filed on 19 April 2017, making clear that the draft notice of appeal was in the incorrect form and the application did not specify whether the whole of the judgment was appealed from or only part of it. There was a complaint that the grounds of appeal relied upon were embarrassing, failed to set out any error of law (factual or legal) and failed to set out the facts which Mr Ellis contended the primary judge ought to have found on any arguable case. The third ground of appeal was objected to as being scandalous and there was an objection to the so-called evidence annexed to the affidavit as being of such poor quality as to be indecipherable. Finally, it was noted that the application failed to specify the judgment or orders wanted in lieu of the orders appealed from other than to request a complete rehearing.

GROUNDS OF APPEAL

26    The grounds of appeal were the same as, or very similar to, those appearing in other applications by Mr Ellis, namely:

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 court.

I was told in 2017 that an AFFIDAVIT was required, but even if I received a letter, it would not have been read, as my entire health was too compromised to have even been able to read it or comprehend it.

2.    [The primary judge] did not consider that this was not any failure on my part, as I did write to the court and told them my health was I [sic] chaos.

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

MR ELLIS’ SUBMISSIONS

27    On the hearing of the notice of objection to competency and the application for an extension of time Mr Ellis filed some wide ranging submissions to the following effect (in light of the scandalous and entirely unjustified remarks concerning the legal practitioners for the respondent, I have referred to them as practitioners only, rather than by name):

1.

The fact that [Practitioner A], hiding behind [the respondent’s law firm] as a fake and fraud of a LEGAL PRACTITIONER, have had the evil sleaze and disease, while the matter is before the court in an appeal process, to send the WA SHERIFFS OFFICE to my home on 10 JULY 2017 to seize goods and property to the value of $32,000 that I just do not have anywhere near that, however only possessing $1000 worth of junk furniture and clothing, if that frankly.

THIS BEING THE ONLY TREASONIST [sic] AND TRAITOROUS LAW FIRM TO DO SUCH EVIL TWISTED CRAP TO A WHITE DISABLED AUSTRALIAN, AS THEY ARE HELPING TO SUPPORT WEALTHY FOREIGN COUNTRIES PEOPLE AND FOREIGN BUSINESS INTERESTS, WHO ARE INVADING THIS COUNTRY BY STEALTH AND EVENTUALLY GENOCIDAL RACISM AND DISCRIMINATING AGAINST DISABLED AUSTRALIANS.

2.

I have but to apply for bankruptcy now as forced into it by the HUMAN RIGHTS ABUSIVE LAWYERS from [the respondent’s law firm], who present a very real threat and clear and present danger to Australians and Australia, by treasonous assistance of [the respondent], the invading foreign human rights abusers who do not care about disabled persons in their own dirty, sleazy, violent Asian countries, little own Australia.

I fully intent [sic] to destroy them in as many ways as they have destroyed me, for their sheer will of evil and idiocy of having no disabled ramp and then refusing to install one that would probably have cost them far less than $3,200 and then their lawyers taking this venomous case for sheer profit and disability hatred of them paying $32,000 and them taking $32,000. SICK MADNESS!

I will do this with constant exposure to the INTERNATIONAL and AUSTRALIAN COMMUNITY, for the condemnation they deserve then we will see how long [the respondent’s law firm] and [the respondent] remains solvent shall we.

2. CONTINUED

I QUESTION THE UNITED NATIONS AND AUSTRALIAN CONSTITUTIONAL VALIDITY OF YELLOW SUPREMACIST BUSINESS INTERESTS TO BE REPRESENTED IN OUR COURTS OR BUSINESS INTERESTS IN AUSTRALIA, TO SET ABOUT SYSTEMICALLY DESTROYING THE LIVES OF A SOVEREIGN NATIONS MOST VULNERABLE CITIZENS.

ANSWER: IT’S CALLED INVASION BY STEALTH, YELLOW SUPREMACY, THEFT AND GENOCIDE, TERRORISM, TRAITORISM AND TREASON.

3.

The WA SHERIFFS action is no less akin in its evil than that of NAZI GERMANY and the very way the SS handled the disabled, by firstly sending those with a crown, scary emblem, badge and in a theatrical costume, first to speak innocently as if there to help us, then intimidate, threaten, force, interrogate, exterminate and then experiment on us. THIS IS HOW IT ALWAYS STARTS ANYWHERE IN THE WORLD AND AT ANYTIME THROUGH WORLD HISTORY.

This is another form of violence, genocide, torture, terrorism and disabled experimentation, regardless of ideology, as [the respondent’s law firm], [Practitioner A] and [Practitioner B] are evil psychopaths in cheap suits who are getting off on how far they can go to destroy my health, kill me or cause suicide, trying to see how I will cope and it is exactly the same, if not worse than the NAZI’s, as it is totally avoidable and an unnecessary from of cruelty and human rights and torture is torture and evil is evil, whatever small or large evil intent you bring onto the disabled.

4.

Applying to the WA SHERIFF to invade my home, while this case is in an APPEAL PROCESS is nothing but perjury as [Practitioner A] would have applied for this seizure order and must have lied openly to the WA SHERIFFS OFFICE, only to cause me anxiety, harassment and human rights abuse and this is also an attack on all DISABLED PERSONS HUMAN RIGHTS and it undermines the integrity and honour of this court and also constitutes a crime of perjury and CONDUCT UNBECOMING OF ANY LEGAL PRACTITIONER.

5.

This matter should now have COSTS ORDER rejected and dismissed and the entire case to now be held in my favour and a JUDGEMENT [sic] to state that now and an out of court settlement made to award me the entire amount of $1 MILLION that I first applied for, or at least a JUDGEMENT [sic] in the order of paying me at least $64,000 to double their greedy and depraved cost order that they placed on me.

10.

The legal firm acting for [the respondent], [the respondent’s law firm], cannot talk about things being done wrong, demanding dismissals and cost orders on a very unwell and poverty ridden disabled man, with no formal university legal training, as many other of their RESPONDENTS PAPERS & OBJECTIONS were sent to me a week late, even after [the primary judge] specified to them to send it to me at a particular date, which they have failed, so if their failure is intentional with no valid excuse but mine in not intentional and has a valid reason, then they cannot expect legal favour or dismissals when it suits them, if the same [primary judge] and this court does not give me the same justice.

11.

These delays are intentional, as a means to make me get my information rushed and causing me so much stress and anxiety and increasing my already poor disabled health, so much so that I do not know what I am wishing to state clearly and causing me too be so distressed and anxiety ridden that is causing the collapse of my entire health with physical and mental health, then with what [the respondent’s law firm] try to call threats of violence, however not true, as the extreme outbursts as nothing more than SELF DEFENCE at their violent acts toward myself, a vulnerable, poverty ridden and unwell disabled person, with no job, relationship, friends, family or nest egg for later life.

12.

I am then forced to endure and suffer immense and unnecessary HUMAN RIGHTS ABUSE, SETTING ME UP, CONSTANT WA POLICE THREATS, BLATANT PERJURY, LIES, BULLYING & DEFAMATION of [Practitioner A] & [Practitioner B], who are in all terminology true psychopaths, as they are actually getting off and enjoying this utterly corrupt, abusive and legally depraved and bizarre ride and their rants, as a means to set me up, to try and have me jailed, which must be stopped and this law firm not be allowed to act for this or any other clients in regards to any more cases I present to this or any other court jurisdiction.

This is not the first time, in a range of other depraved cases, that [the respondent’s law firm] has attacked the very foundations of the AUSTRALIAN CONSTITUTION, INTERNATIONAL & AUSTRALIAN LAW & HUMAN RIGHTS OF DISABLED PERSONS.

13.

I demand that this case now be judged in my favour, seeming as the lawyers at [the respondent’s law firm] have asked for countless other cases and this case to be dismissed and cost orders placed on me, over the simplest of issues in the past, a disabled man, with such poor health that he almost collapsed into a state of almost having a nervous breakdown at the latter half of 2016 and the early half of 2017 for fighting for the principals of being allowed the same access and care as other customers of [the respondent].

14.

My health still not being in the clear, in fact 10 fold worse, where I am having much more ill health physical medications in the latter half of 2017, with 10 fold increasing stress, caused primarily by only one legal firm called [the respondent’s law firm], with the psychotic, perjury, passive aggression, with violent and venomous stylings of the legal goody goody and childish games played out by [Practitioner A] and [Practitioner B], in hopes to cause me a severe nervous breakdown or a fatal physical health breakdown.

15.

My GP […] is looking into my medical files and RPH admissions which could be available to me, however not until next TUESDAY 18 JULY 2017, which is going to show [Practitioner A] and [the respondent’s law firm] as devious liars and defaming me knowingly, as my disability and health do have very real and distinct possibilities at any time of proving fatal and causing me so much regular hospitalisation, anxiety, sickness and chronic pain, that to be frank I am surprised I can function at all, which is now proving more and more of my health and life falling apart now.

16.

Now that [the respondent’s former law firm] have been so incompetent and [the respondent’s former practitioner] being berated by [the primary judge] for CONDUCT UNBECOMING OF A LEGAL PRACTITIONER, then he is replaced after making his ill-gotten gains and another firm [the respondent’s law firm] takes on the case and makes their ill-gotten gains, which causes [the respondent] more costs and time with delays and also further delays and costs on me, so how on Earth can this court or any lawyer be allowed to subject me too such low behaviours and severe court punishments, akin to nothing more than the way NAZI GERMANY handled the disabled.

17.

The wealthy and racist Asian owners of [the respondent] have put up their own legal costs and times spent for hiring the wrong lawyer in the first instance, so why should I have to lose this case or pay one red cent in costs due to their own poor choices or changes to try and win at all costs? It is insane, not serving any sense of Godly or manly law, disrespectful, injustice and not an honestly judged case.

18.

I am my own lawyer and I am not allowed to change lawyers and ask them to pay for it, the very thing that [the respondent’s law firm] and all other legal firms involved in this court are allowed leeway over, for the very same disability discrimination and disability hatred issues that I have had to endure in this court for years and years, so that lawyers can make themselves a fortune in the destruction of my entire disability pension finances and my disabled health, or what is left of both of these vital, socially and politically ingrained international and Australian human rights values and laws.

19.

I have the right to know why [the respondent’s former law firm] was dumped. Could it be that even [the respondent] realised that [the respondent’s former practitioner] treated me and this court with such inhumane contempt and is such a human rights abusive criminal that they had to replace [the respondent’s former law firm] to save themselves from international media, public condemnation and human rights litigations?

20.

It is time for [the respondent] to drop this case and negotiate an out of court settlement, an apology and their sites up to the highest standards of disability accessibility and safety.

[The respondent] are too blame for dragging this case on for years and not I, so their costs are their own fault and their own issue and I did not tell them to hire a lawyer, especially one that is so vile and steals $32,000 off them for the idiotic crap and legal swill arguments I have read and besides I cannot even afford or obtain one lawyer here in WA, due in part to nepotism, neglect, greed, jobs for the boys and not one interest in helping those less fortunate unless there is something in it for them or any want to expose the systemic corruption and abuse of most disabled and Aboriginal persons in this state.

21.

[The respondent] is owned by vastly wealthy individuals who are well aware that disabled persons need disabled access at their business just as much as any other able bodied person but instead we are being left to suffer systemically in most sectors of Australian society, so where do they believe I am the one punishing them, when they are demanding that their wealthy lawyers be paid a fortune by trying to steal what I do not have.

They then wish to have this case dismissed in lieu of the lower cost of [the respondent] paying an out of court settlement, or better still, having properly spent accessibility in the first place, so that we would not be in this court. Who are the real able bodied criminal perpetrators who are punishing the disabled innocent victims here and using our courts time and expenses to hide human rights abuse?

22.

RESPONDENTS SUBMISSIONS

7.

THIS IS [the respondent’s law firm’s] OPINION ONLY, NOT THE TRUTH OF THE MATTER OR EVEN A COMPETENT LEGAL ARGUMENT.

I HAVE INCLUDED ALL FACTS AND EVIDENCE AND INFORMATION OF MY HEALTH ISSUES AND MY DISABILITY TO THE BEST OF MY ABILITY.

REGARDLESS OF THE DEFAMATION OF ME AND THEIR STUPID EXCUSES TO WIN THIS CASE, I AND MOST OTHER THINKING PEOPLE STILLL [sic] CANNOT SEE ANY REASON WHY THIS IS A GOOD ENOUGH REASON FOR THESE LAWYERS TO DEMANDING A DISMISSAL OF THE CASE OR THIS APPEAL, SEEMING AS THEY HAVE NO DISABLITY [sic] ACCESS AT THEIR VENUE OR HAVE EVEN INCLUDED IT UP TO THIS DATE.

8.

THIS IS [the respondent’s law firm’s] OPINION ONLY, NOT THE TRUTH OF THE MATTER OR EVEN A COMPETENT LEGAL ARGUMENT.

THAT DOES NOT HAVE ANY LEGITIMATE LEGAL ARGUMENT, AS THEY DO NOT KNOW WHAT I CAN AND CANNOT DO AT HOME WHEN MY HEALTH IS SHOCKINGLY COMPROMISED BY THEIR LEGAL ATTACKS OF ME THAT LEAD TO MASSIVE EXHAUSTION ACTUALLY, SEEMING AS THEY NEED TO BE TOLD TO UNDERSTAND WHAT THIS ACTION TO FIGHT FOR THE SAME RIGHTS AS THEY HAVE HAS DONE TO ME.

22. CONTINUED

9.

THIS IS [the respondent’s law firm’s] OPINION ONLY, NOT THE TRUTH OF THE MATTER OR EVEN A COMPETENT LEGAL ARGUMENT.

MY GP […] DISAGREES WITH YOU AND I FACT HE SCOFFED A LITTLE WHEN I SHOWED HIM THESE LEGAL OBJECTIONS OF MY MANY DISABLITY [sic] HEALTH ISSUES.

THE RPH REPORT SERVED AS A MEANS TO SHOW ONE OF MANY EMERGENCY ADMISSIONS FOR MANY HEALTH PROBLEMS, CAUSED BY DEPRESSION WORSENED BY THESE CASES & DISABILITY DISCRIMINISATION [sic], DISABILITY HATRED & DISABILITY VICTIMISATION, PHYSICAL WEAKNESS & MULTITUDES OF FALLS CAUSED BY[…].

10 - 11.

THIS IS [the respondent’s law firm’s] OPINION ONLY, NOT THE TRUTH OF THE MATTER OR EVEN A COMPETENT LEGAL ARGUMENT.

[The respondent’s law firm] ARE TRYING TO CONVINCE THE COURT THAT I WAS LYING AND COULD ATTEND COURT AND ATTEND TO COURT PAPERS, EVEN THOUGH THERE IS A HIGHER DEGREE OF CONCENTRATION AND FOCUS NEEDED TO COUNTERACT THE TYPE OF STRESS AND EXHAUSTION I HAVE FOR THESE PARTICULAR COURT PAPERS, COMPARED TO THE DRAMA QUEEN ALLEGATION THAT I MUST HAVE BEEN WELL TO ATTEND TO ALL COURT AND LIFE MATTERS THAT WERE THE CATALYST FOR MY EXHAUSTION IN THE FIRST PLACE.

DUE TO JUST BEING ABLE TO FILL OUT AND E-LODGE A FEW HUMAN RIGHTS APPLICATIONS TO THE COURT, ONE PAGE AT A TIME AS I WAIT FOR THE KETTLE TO BOIL, DOES NOT STATE ANY FORM OF A LIE ON MY PART THAT I WAS WELL ENOUGH.

THIS IS MORE DISABILITY HATRED AND DISABILITY VICTIMISATION FROM THE SAME LEGAL FIRM, AS CAN BE PROVED, NOT ONLY IN THIS CASE BUT IN SO MANY OTHER CASES, SUCH AS LO QUAY RIVER CAFÉ, ITH, AND HOYTS AND THE ONLY LEGAL FIRM TO WHINE AND ENTER INTO A BACKWARD PROTEST THAT I AM SOME SORT OF CRIMINAL INSTEAD.

[The respondent’s law firm] ARE MAKING A SNAP JUDGEMENT AND CALL TO ARMS AS IF I AM A DANGEROUS CRIMINAL CONSPIRATOR AND IT IS ONLY AN OPINION OF MY FUNCTIONALITY AND WHAT I CAN AND CANNOT DO AT THE TIME OF MY TRUE INCAPACITY DUE TO THE SHEER WEIGHT OF COMING CLOSE TO A NERVOUS BREAKDOWN AND NOT GETTING MUCH BETTER TO THIS DAY DUE TO THESE VERY CONTINUING AND PRESSING ABUSES OF POWER BY [the respondent’s law firm].

22 CONTINUED

PART 10-11

CONTINUED

IT DEFAMES AND PAINTS ME AS A PERJURING CRIMINAL, WITH UNDER THE COUNTER INSULTS, FOR WHAT EXACTLY, BEING A SYSTEMICALLY ABUSED DISABLED PERSON OUTCAST FROM MOST SECTORS OF SOCIETY AND SO PHYSICALLY AND MENTALLY COMPROMISED AND UNWELL MOST OF THE TIME, FROM 2001 – 2017,THE AMOUNT OF TIME I HAVE HAD THESE DISABILITIES, HOWEVER WORSE BETWEEN 2016 UNTIL THIS YEAR.

12.

THIS IS [the respondent’s law firm’s] OPINION ONLY, NOT THE TRUTH OF THE MATTER OR EVEN A COMPETENT LEGAL ARGUMENT.

BECAUSE I WAS NOT READING OR INDEED ABSORBING MUCH OF THE FEDERAL COURT OR LAWYERS INFORMATION COMING BACK TO ME FROM THIS CASE AND MANY OTHERS INTO LATTER 2016 AND UNTIL EARLY 2017, DOES NOT PROVE THAT MY MEDICAL EVIDENCE IS NOT TRUE, IT SIMPLY SHOWS THAT I DID NOT KNOW ABOUT OR HAVE THE ABILITY TO CATCH UP WITH ANY STRESSFUL ONGOING COURT CASES, COURT PAPERWORK OR COURT DATES UP UNTIL ANY TIME IN 2017.

I SIMPLY COULD NOT HAVE KNOWN THAT THE COURT WAS SENDING ME PAPERS THAT NEEDED TO BE READ, ACTED UPON, OR COURT DATES PUT INTO MY DIARY, AS I HAD ASSUMED THAT THE COURT WOULD NOT HAVE DONE SO, SEEMING AS I HAD SENT THE COURT MY MEDICAL DOCUMENTATION THAT DETAILED MY HEALTH WAS COMPROMISED.

[The respondent’s law firm] HAVE ALREADY USED THESE SAME ISSUES TO THEIR ADVANTAGE IN ANOTHER COURT JURISDICTION AND THEY HAD THE CASE DISMISSED AND NEVER ASKED FOR COSTS, EVEN THOUGH THAT COURT HAD ALSO RECEIVED THE SAME MEDICAL DOCUMENTATION AS THIS COURT JURISDICTION.

15 - 19

NOT IN THE RIGHT FORMS [Practitioner A] STATES. THOSE SAME WORDS WERE ALSO SAID IN A GERMAN LANGUAGE IN THE 30’S AND 40’S TOO. MY PARTIES ARE NOT IN ORDER. I AM A LIVING BREATHING HUMAN AND I AM NOT A SET OF LEGAL CODES, CON GAMES OR COURT DOCUMENTS.

I DO NOT HAVE THE HEALTH AND I AM FAR TOO INTELLIGIENT [sic] TO RESPOND TO ANYMORE OF THIS LEGAL GOOBLY [sic] GOOK AND AN INSULT TO MY INTEGRITY, AS THIS HAS ALL BEEN DONE TO THE BEST OF MY KNOWLEDGE AND WITHOUT A LAWYER OR A LEGAL SECRETARY AND DOING THE BEST WITHOUT NO FURTHER INFORMATION AVAILABLE, SIMPLY DOES NOT STAND UP TO FACT OR SCRUTINY OF [the respondent’s law firm] LEGAL BEING CORRECT IN ANY OF THEIR LEGAL ASSESSMENTS OR ARGUMENTS ABOUT ME OR MY POOR DISABLED HEALTH, IT MEANS THEY ARE WRONG!!!

POINTS 15-19 IS SUCH LEGAL DRIVEL AND SUCH A LIE ABOUT MY LEGALLY ENTITLED AND CORRECT MEDICAL REPORT FOR MY COURT ABSENTEEISM AND MY POOR DISABLED HEALTH THAT I CANNOT ANSWER ANYMORE OF THIS SWILL WITHOUT HAVING ANOTHER HEALTH EPISODE.

IT IS NOT MY FAULT THAT THE COURT STAFF FAILED IN THEIR DUTIES AND DID NOT ADVISE THE JUDGE OR THE JUDGES ASSOCIATE ABOUT MY COURT ABSENTEEISM WHICH I DID PUT IN WRITING TO THE COURT.

MY LAST COMMENTS

23

THIS IS NOT JUSTICE, LAW OF MAN, HUMAN RIGHTS, OR EVEN RIGHT UNDER THE EYES OF GOD, TO MAKE A DISABLED MAN FIGHT FOR THE RIGHT TO EXIST AND TO SUFFER COST ORDERS WHEN I HAVE NO MONEY, GOODS OR ASSETS, FROM WEALTHY PEOPLE AND LAWYERS, WHO DO NOT SPEND A CENT ON ADEQUATE, SAFE, OR EVEN ASTHETICALLY [sic] PLEASING ACCESS, GIVE US NO JOBS, AND NO DISCOUNTS ON PRODUCTS AND SERVICES IN THE FIRST PLACE, WHICH IS SICK, SICK, SICK!

24

Any cost orders or dismissals is WRONG and will not do one single thing to remedy, resolve or set in place precedents to end this evil crisis of systemic hatred of the disabled persons in Australia.

25

I could not possibly have any ability to answer such outrageous witch hunt crap, like I am on a criminal trial for my life and without any legal representation to speak.

26

To try and force me to do any more of this will KILL ME, when the access at [the respondent] was and is as bad as I have stated in my many court declarations under oath and as I cannot afford a lawyer, a private investigator or an insurance investigator, there can be no way I can provide this information.

27

AN DISABLITY [sic] ACCESS ISSUE IS A DISABLITY [sic] ACCESS ISSUE AND TO FORCE ME TO PROVIDE FURTHER INFORMATION ABOUT MY HEALTH AND DISABILITY, THAT IS KNOWN BY THE COUNTLESS HOURS AND RECORDS ALREADY SUBMITTED TO THIS COURT AND OTHER GOVERNMENT AGENCIES, UNDER AN IMMENSE AMOUNT OF BULLYING, DURESS, HARDSHIP, IDIOTIC LAWS AND CODES, WITH BLOOD, SWEAT AND TEARS AND FORCING ME CLOSE TO DEATH.

28

IT IS A SICK, DEMENTED AND TWISTED WAY OF TRYING TO KILL A DISABLED PERSON AND WIN THIS CASE AT ALL (IMMENSE) LEGAL COSTS, WITH NO INTEREST IN AN ACCESS RESOLUTION OR AN OUT OF COURT SETTLEMENT.

29

TO PAY LEGAL COSTS INTO THE TENS OF THOUSANDS SHOWS THEIR TRUE HATRED, IGNORANCE AND NEGLECT OF DISABLED PERSONS AND IT IS AN ABUSE OF THE COURT PROCESSES ITSELF AND IS A HORRIFIC TERRORIST ATTACK, GENOCIDE AND HOLOCAUST ON DISABLED PERSONS AND ON HUMANITY ITSELF.

30

The fact that other court documents from [the respondent’s law firm] has been incorrect and late itself, shows that they are also too blame for things never going right for me, accidentally on purpose, so why should they receive favour now?

31

I do not have the health left in me to answer any more legal drivel, lies, cover ups or excuses, that are designed to make me look like a DISABLED & DELUSIONAL CRIMINAL and the despicable games of [the respondent’s law firm] and the wealthy [the respondent] owners, is destroying my entire physical and mental health and the JUDGE in this case has a HUMAN RIGHTS OBLIGATION to stop this criminal behaviour of despicable lawyers and corporate identities, in this state.

32

THE DISABLED ACCESS IS UP TO CRAP AT THE [respondent] SITE AND THE LAWYER AND THE CLIENT KNOW IT, SO THEY SHOULD BE ASKED BY THIS COURT TO EXPLAIN THEMSEVES [sic] AND NO LONGER ASK THE SUFFERING DISABLED PERSON TO DO SO!

33

THIS IS NOT JUSTICE, LAW OF MAN, HUMAN RIGHTS, OR EVEN RIGHT UNDER THE EYES OF GOD, TO MAKE A DISABLED MAN FIGHT FOR THE RIGHT TO EXIST AND TO SUFFER COST ORDERS WHEN I HAVE NO MONEY, GOODS OR ASSETS, FROM WEALTHY PEOPLE AND LAWYERS, WHO DO NOT SPEND A CENT ON ADEQUATE, SAFE, OR EVEN ASTHETICALLY [sic] PLEASING ACCESS, GIVE US NO JOBS, AND NO DISCOUNTS ON PRODUCTS AND SERVICES IN THE FIRST PLACE, WHICH IS SICK, SICK, SICK!

34

Any cost orders or dismissals is WRONG and will not do one single thing to remedy, resolve or set in place precedents to end this evil crisis of systemic hatred of the disabled persons in Australia.

35

I am not a battering ram for [the respondent’s law firm] or [the respondent] to punish and destroy because they are too greedy, ignorant of disabled persons suffering and too proud and egotistical to realise it is their fault this court case was instigated in the first place.

36

[…] and [the respondent’s law firm] do not have any truthful or relevant facts of me or this case right under any lawful or human rights circumstances and cannot possibly have the rights to win this case, place any cost orders on me, or even be allowed to make me suffer put any more court actions.

‘OTHER EVIDENCE’

28    At the hearing of the application for extension of time, Mr Ellis handed up a document from the Royal Perth Hospital, Wellington Street Campus, dated 6 July 2017 recording that on Friday, 8 September 2017 an appointment had been made for Mr Ellis. That fact did not take the matter further. It also attached, however, a discharge summary, dated 29 September 2016, recording that Mr Ellis had been admitted the day before, presenting with an episode of centralised chest pain, associated with dyspnoea at rest and reporting a gradual onset of heavy centralised chest pain, radiating to the left side of the chest, lasting for 15 minutes. He had denied any previous episodes of angina or recent changes to exercise tolerance. He had various high cardiovascular risk factors, but with stable troponin levels. He was admitted for examination and directed not to drive for two days, following a coronary angiogram and his GP was to review him within a week of discharge. He was to repeat a stress echo test in 12 months’ time at Royal Perth Hospital and to take two to four paracetamol tablets each day while bursitis pain in his hip continued.

29    There was another report from the Royal Perth Bentley group, dated 15 December 2016. It was noted that Mr Ellis attended the Podiatry Clinic on 15 December 2016, presenting with pes cavus foot type with muscular dystrophy. His main concern was about a burning sensation that he gets behind the left lateral malleolus, with no redness or swelling on assessment. It was recorded that Mr Ellis previously had custom shoes made at Footwear Solutions under CAEP, but he felt that did not reduce his falls’ risk. The report noted that he has indicated that he would not like to be referred to any footwear supplier again and that he was currently happy with his sandal which provided adequate support for his feet. The recommendation was that there be a review of his medications or tests, if needed, to reduce the burning pain in his left ankle. He did not need a further appointment at Bentley as he already had a follow-up with his private podiatrist.

30    This material was not adduced in admissible format, but taking it on its face value, it adds nothing to any claim by Mr Ellis as to being unable, by reason of ill health, to comply with various court orders.

CONSIDERATION

31    As noted, these reasons pertain to an application for an extension of time to appeal from the primary judge’s decision, the action having been dismissed 24 January 2017, based on reasons for judgment published on 10 February 2017.

32    At the same time, a notice of objection to competency is also the subject of consideration in these reasons.

33    In relation to the application of extension of time, it is clear that:

(a)    the Court has broad and flexible jurisdiction to extend time limits and to provide for justice in the circumstances of any particular case;

(b)    an applicant must make out a case sufficient to justify departure from the ordinary rule prescribing the period in which an appeal must be filed (see, for example, Jess v Scott (1986) 12 FCR 187 (at 195); and

(c)    the relevant factors, set out in the well-known decision of Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1994) 3 FCR 344 per Wilcox J (at [17]-[22]), include the following:

(i)    the Court must be satisfied that it is proper to extend time, noting the prescribed period is not to be ignored. This usually requires an acceptable reason for the delay;

(ii)    any prejudice to the respondents must be considered, noting that the mere absence of prejudice is not enough to justify the grant of an extension; and

(iii)    the merits of any proposed actual appeal.

34    As to the delay in explanation, the application was filed on 2 April 2017, 69 days after the judgment on 24 January 2017 and 52 days following publication of the reasons. This is in contrast to the period under r 36.03 of the Federal Court Rules 2011 (Cth) (FCA Rules) of 21 days.

35    The explanation for the delay is contained in para 2 and para 3 of Mr Ellis’ affidavit filed on 2 April 2017. The first explanation is that he was unwell and unfit in regards to ‘any paperwork, court appearances and lodgments’ for the latter half of 2016, continuing into early 2017 and March 2017.

36    There is no adequate medical evidence to support this contention. There is some suggestion on the basis of medical evidence filed by Mr Ellis that he was not fit for court during the period 29 September 2016 to 1 January 2017, but in the period to March 2017, there is no such evidence, despite the opportunity to provide evidence as requested by the respondent’s solicitors in writing on 9 June 2017.

37    The nature of any medical evidence relied upon by Mr Ellis is quite vague and imprecise. If it pertains to the ability of Mr Ellis to appear in person, that is one thing, but generally speaking, Mr Ellis has appeared by telephone link and there is no evidence as to an inability to appear by telephone. He has done so frequently in this Court.

38    There is no evidence of any nature which would support the contention that he is not fit to prepare or file documents. The evidence I have referred to from the Royal Perth Hospital does not support this contention.

39    Indeed, as the history shows, the conduct of Mr Ellis during this period is to the contrary. On 4 October 2016, he issued three sets of new proceedings in the Federal Circuit Court alleging disability discrimination against Target Australia, Bed Bath and Table and the Trustee for the Homer Trust. He issued a fresh set of proceedings on 9 January 2017 against Virgin Australia. He was clearly able to prepare and file documents at the Court during this period of alleged incapacity.

40    There is no evidence before the Court of being unfit in March 2017. Any medical evidence is limited to the period ending in 1 January 2017 and that evidence does not support the contentions advanced.

41    No adequate explanation has been supplied for the delay in lodging the application for an extension of time.

42    The respondent does not rely upon any specific prejudice, other than the additional time and cost in responding to the application.

43    Most significantly, the merits of any proposed appeal are non-existent. The respondent has two objections to the merits. The first is an objection of form, essentially, with the deficiencies including the various matters set out in the respondent’s notice of objection to competency of the appeal referred to above.

44    More importantly, the draft notice of appeal does not satisfy the requirements specified in r 36.01 of the FCA Rules in any manner. Mr Ellis has not identified any error by the primary judge, other than the complaint that evidence, which was not presented to the primary judge, was ignored. This is a complaint without any evidentiary support, despite the fact that Mr Ellis clearly has knowledge from the numerous proceedings he has commenced, that such contentions must be supported by evidence. The suggestion that the evidence was withheld from the primary judge is entirely speculative and contains a personal attack on the lawyers for the respondent and Federal Circuit Court staff, which is scandalous and would be struck out.

45    More importantly, as appears from the primary judge’s reasons (at [30]-[38]), having considered any submissions from Mr Ellis in respect of his medical condition, his Honour properly rejected those submissions. There was no evidence at all before his Honour at the time of the judgment that Mr Ellis was ill or unwell.

46    There is no evidence now that Mr Ellis was ill or unwell and unable to attend.

CONCLUSION

47    The application for leave is entirely without merit. The decision of the Federal Circuit Court is not flawed in any respect.

48    The application for an extension of time will be dismissed with costs.

Associate:

Dated:    15 March 2018