In De Braekt v Kanapathy

FEDERAL COURT OF AUSTRALIA

In De Braekt v Kanapathy [2020] FCA 977

Appeal from:

Application for extension of time:  Kanapathy v In De Braekt [2019] FCCA 2541

File number:

WAD 445 of 2019

Judge:

MCKERRACHER J

Date of judgment:

7 July 2020

Catchwords:

PRACTICE AND PROCEDURE – service of originating documents – where originating documents were sent to the respondent by ordinary post – where personal service is required by r 8.06 of the Federal Court Rules 2011 (Cth) – orders made requiring service to be effected correctly – in circumstances where neither party appeared

Legislation:

Racial Discrimination Act 1975 (Cth) s 18C

Federal Court Rules 2011 (Cth) rr 8.06, 10.1, 36.01

Federal Circuit Court Rules 2001 (Cth) r 16.05

Cases cited:

AID15 v Minister for Immigration and Border Protection (No 2) [2015] FCCA 2028

Kanapathy v In De Braekt [2019] FCCA 2541

Kanapathy v In De Braekt (No 4) [2013] FCCA 1368

Date of hearing:

7 July 2020

Registry:

Western Australia

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

22

Counsel for the Applicant:

The Applicant did not appear

Counsel for the Respondent:

The Respondent did not appear

ORDERS

WAD 445 of 2019

BETWEEN:

MEGAN IN DE BRAEKT

Applicant

AND:

RAJANDRAN KANAPATHY

Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	7 JULY 2020

THE COURT ORDERS THAT:

1.Unless within 21 days of the date of these orders the applicant files:

(a)An affidavit deposing to the fact that the respondent has been personally served with the originating documents in this matter in accordance with Rules 8.06 and 10.1 of the Federal Court Rules 2011 (Cth); or

(b)An application for service other than personal service of the originating documents in this matter on the respondent;

the application will be dismissed.

2.There be no order as to costs.

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

REASONS FOR JUDGMENT
REVISED FROM THE TRANSCRIPT

MCKERRACHER J:

1. This matter concerns an application for an extension of time for leave to appeal from a decision of the Federal Circuit Court of Australia.  The decision was made by a second Federal Circuit Court judge who dismissed the applicant’s application for orders setting aside previous orders made by a first judge: Kanapathy v In De Braekt [2019] FCCA 2541. In October 2019, the matter was referred to me for case management.

2. On 16 January 2009, the applicant is alleged to have made racist remarks to the respondent, a Western Australian Central Law Courts precinct security guard who had asked to search the applicant’s purse. After his complaint to the Australian Human Rights Commission was terminated on the basis of no reasonable prospect of conciliation, the respondent filed in the Federal Circuit Court in October 2010, alleging breaches of s 18C of the Racial Discrimination Act 1975 (Cth).

3. Following procedural disputes regarding service and other matters requiring preliminary judgments, on 25 September 2013, the first Circuit Court judge delivered…