Federal Court of Australia

Lunniss v Comiskey Management Services Pty Ltd trading as Sandstone Point Hotel & Function Centre [2023] FCA 1556

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be listed for trial, to occur on 11 December 2023 at 10:15am.

2.    The applicant be granted leave for the filing of an application for an amended statement of claim dated 2 November 2023 with service thereof dispensed with in light of its provision already to the respondent.

3.    The existing defence be deemed to be the defence to that amended statement of claim.

4.    The applicant’s application to file an amended statement of claim which joins additional respondents be dismissed.

5.    The respondent’s application for summary judgment be dismissed.

6.    The affidavit of Christopher Joseph Lunniss sworn on 31 October 2023 be accepted for filing with the need for the service of the affidavit being dispensed with in light of it already having being provided to the respondent.

7.    The affidavits of other deponents which are annexed to the affidavit of Mr Lunniss be deemed to be affidavits separately filed and served on behalf of the applicant in these proceedings and notwithstanding defects in form in those annexed affidavits.

8.    The parties give notice in writing, one to the other, on or before Friday 10 November 2023 as to whether any witness who has given affidavit evidence filed or deemed to be filed is required for cross examination.

9.    Leave is granted to each of the parties for the issue of subpoenas to each of the persons who has given affidavit evidence or who has been deemed to have given affidavit evidence.

10.    Costs, including costs relating to the proposed joinder of additional respondents and the summary judgment application, be reserved.

11.    Liberty to apply.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    On 27 November 2022, Mr Christopher Lunniss (Mr Lunniss) instituted proceedings against Comiskey Management Services Pty Ltd which trades as Sandstone Point Hotel and Function Centre alleging disability discrimination.

2    The proceedings have reached a point where, subject to an application to which I will refer, pleadings have closed and affidavit evidence for each of the parties has been filed. Albeit, in the case of Mr Lunniss in a somewhat unorthodox way and outside a time limit envisaged by earlier case management directions. The case has recently been reallocated to me, thereafter I have brought the case on as soon as possible for case management.

3    Recently, the applicant has sought to file an amended statement of claim which would see, if accepted, the joinder as respondents of his former solicitor and entities related to that former solicitor. For its part the respondent has filed an application for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth). If not, also under the Rules of the court. The question for immediate disposition is what to do in respect of each of these applications as to the filing of an amended statement of claim and related joinder.

4    The substantive proceeding at present raises a very compressed point in relation to whether on a particular day there was or was not disability discrimination as to that. And having regard to evidence either filed or proposed to be filed in the case of Mr Lunniss’ affidavit material the position which seems likely to obtain at any trial, or for that matter with respect to any summary judgment application, is that the applicant’s evidence will be that there was a particular event which entailed a refusal of entry based on an absence of the wearing of a mask. And the respondent’s position being it has no record of any such entry, but, in any event, had in place a policy which did not admit of any contravening discrimination if implemented.

5    The point is that the subject for trial on the pleadings as presently constituted is a short one unlikely to take more than a day to hear if not also hear and determine. So much was accepted by the solicitors for the respondent. In contrast, were I to admit the filing of the amended statement of claim as proposed and its related proposed joinder a completely different course of action would be introduced and with that a completely different evidentiary focus. The present respondent has no interest whatsoever in the merits or otherwise of that particular cause of action.

6    The purpose of the proposed amendment is obvious enough. It is something of an insurance policy, to use a not wholly accurate description, of a course of action or causes of action against a former solicitor where an application might be apprehensive as to at least an adverse costs consequence in respect of proceedings which had been initiated on particular advice.

7    In my view, that would – to allow the filing and service of the amended statement of claim is – would be a paradigm example of an inconvenient joinder. It would be fraught with the prospect of a great elongation of proceedings. I, therefore, order that the filing of the amended statement of claim be refused and so far as the same may be necessary dismiss any application for any related joinder of the applicant’s former solicitors.

8    The question then becomes whether or not to set the application for summary judgment down for hearing. It would take the better part of a day to hear and determine such an application so much was accepted by their solicitors for the respondent. I also put to those solicitors, and it was accepted, that it was likely that a substantive trial would take about the same length of time.

9    To try the case substantively would eliminate any need for submission about whether there was or was not a reasonable action. It would see the case decided finally on its merits one way or the other. As there is, in my view, no advantage whatsoever in the separate determination of a summary judgment application particularly given that it impossible to hear the case substantively as soon as 11 December 2023. It is not, in my view, in the interests of justice to determine a summary judgment application. Indeed, it would be a misuse of judicial time in the circumstances to do that. For those reasons I dismiss the summary judgment application and in lieu thereof order that the case be tried on 11 December 2023 at 10.15 am.

10    As to that Mr Lunniss has filed an affidavit or seeks to file an affidavit which he has made in support of his case. To that affidavit is annexed the affidavits of other deponents. That is, of course, contrary to the rules. That has not gone unnoticed by the solicitors for the respondent. However, in the course of an exchange at the case management hearing and, with respect, fairly, it was conceded on behalf of the respondent that there was no particular disadvantage in deeming the annexed affidavits to be separately filed. And also noting the misdescription in the title of those affidavits to dispense with the need for any formal correction of the titling.

11    So doing does not disadvantage the respondent in that deeming those affidavits to be separately filed still leaves the respondent with the ability to require one of the other of those deponents, as well for that matter Mr Lummis himself, to attend at trial for cross-examination. I have been informed that the witness for the respondent is available on the trial date.

12    Mr Lummis has informed me that he does not expect that there will be any particular difficulty with attendance of deponents if that is required. The respondent’s present disposition is to require attendance of the applicant’s witnesses so as to allow some time for reflection about that and whether or not, even assuming those witnesses’ evidence were taken at its highest, there was any discrimination. I propose to allow a brief time within which the respondent is to give formal notice of attendance for cross-examination if required.

Associate:    

Dated:    7 December 2023