Australia: Gopher driver keeps Target in his sights for disability discrimination

Last Updated: 6 November 2019
Article by Edmund Burke

Most Read Contributor in Australia, October 2019

A case of a gopher driver with retail giant Target in Ellis v Target Australia Pty Ltd [2019] FCCA 1820 has served as a reminder of Justice Kirby's observation: "Pleadings are the servants, not the masters of the judicial process".1

Disabled man Troy Ellis filed a self-drafted discrimination claim against Target in the FCCA after he was unable to safely drive his mobility scooter through the 'expect more. pay less' shopping centre aisles.

Judge Antoni Lucev's decision (published on 23 October 2019) refused Target's subsequent application to summarily dismiss the claim, and did so, despite finding that the originating documents were so 'scandalous' they would be 'permanently suppressed'.

Mr Ellis, whose disabilities include Becker's Muscular Dystrophy, chronic pain and PTSD depression, was also given leave to file and serve a further statement of claim, this time with legal assistance.

The decision is a salutary lesson for legal practitioners of the need to always consider the underlying substance of any claim rather than simply focusing on its imperfect form.

The claim

Mr Ellis' originating application, filed on 4 October 2016, alleged that Target unlawfully discriminated against him contrary to the Disability Discrimination Act 1992 (Cth). This was because he was unable to safely access and move around the Target store at the Westfield Carousel Shopping Centre, Cannington, WA on his mobility scooter.

In the claim he stated that on occasions he thought the shelves were going to fall on him and he would be injured and also alleged that access was "dangerous and congested" at the store. The application sought an apology, improved disability access at the store and $1 million in compensation.

On 22 March 2017 Target's lawyers sent an email to Mr Ellis stating that the claim failed to properly identify any alleged discrimination and inviting him to amend or file a substituted statement of claim. After receiving a second similar message on 28 March 2017, Mr Ellis replied by emailing the original statement of claim, with the message "there you go dopey!"

On 21 April 2017 the application to have the matter summarily dismissed was filed by Target.

The substance

"Target has an issue with disability access and disability access for people in a disability gopher... I twice encountered Christmas, Easter and Valentine's Day seasonal sections all cluttered walkways, with items on the ground and tight corridors in the store, where I had trouble getting in and out of the store, without banging into the tables and shelves and putting myself in extreme danger, as well as the added and unnecessary stress emotionally and inconveniently.

"On one occasion I bashed into a shelf trying to negotiate a tight corner and the heavy shelf wobbled so violently that I had extreme stress and shock fears of it collapsing on me, I then panicked and the gopher went out of control. I could have been killed easily or taken a child with me."

The form

Judge Lucev also noted: "The Statement of Claim is a gallimaufry of allegations, statements and conclusions which are variously irrelevant, scandalous, frivolous and vexatious, and likely to cause prejudice, embarrassment or delay."

On Mr Ellis' submissions to counter Target's application, Judge Lucey noted "most of those submissions are unhelpful and of no assistance. Rather, they contain unnecessary commentary and offensive remarks expressing Mr Ellis' disagreement with Target's submissions."

The decision

The FCC Rules, r.13.10 state that the Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if satisfied that:

  • the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim
  • the proceeding or claim for relief is frivolous or vexatious
  • the proceeding or claim for relief is an abuse of the process of the Court.

Judge Lucev felt that Mr Ellis had put "albeit at a very high level of generality" material before the Court in which he indicated, his various disabilities, an access issue at the Target, and his physical and emotional injury as a consequence.

"On the materials presently before the Court there is not a complete absence of a possibly valid claim, and the elements of a possibly arguable disability discrimination case are discernible. The Court has concluded that, if Mr Ellis were to properly plead his case he has some prospect of success. The Originating Application ought not, to therefore, be summarily dismissed pursuant to r.13.10 of the FCC Rules."

The Judge concluded that the original claim documents would be struck out (and permanently suppressed), Target's application was dismissed and the court would attempt to arrange pro-bono legal assistance for Mr Ellis who was given leave to file a further statement of claim.


1Thorpe v Commonwealth of Australia (No.3) [1997] HCA 21; (1997) 71 ALJR 767; (1997) 144 ALR 677, ALJR at 774-775 per Kirby J

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