FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KANAPATHY ON BEHALF OF RAJANDRAN KANAPATHY v IN DE BRAEKT (NO. 3) | [2012] FMCA 1213 |
| HUMAN RIGHTS – Unlawful discrimination on the basis of race. |
| PRACTICE AND PROCEDURE – Whether applicant had standing to bring proceedings – whether proceedings a nullity – whether power to change applicant’s name – whether mistake in applicant’s name – whether mistake genuine – whether mistake misleading or such as to cause reasonable doubt as to the identity of party. |
| PRACTICE AND PROCEDURE – Whether allegations and remedies sufficiently particularised – whether statement of claim necessary. |
| PRACTICE AND PROCEDURE – Amendment to earlier judgment of the Court – further evidence of service – whether necessary to amend earlier judgment with respect to substituted service. |
| WORDS AND PHRASES – “mistake” – “redress”. |
| Australian Human Rights Commission Act 1986 (Cth), ss.3(1), 46P(1) and (2), 46PO, 46PR Federal Court Rules 1979 (Cth), O.13 r.2 Federal Magistrates Act 1999 (Cth), ss.42, 79(3) Federal Magistrates Court Rules 2001 (Cth), rr.1.05, 7.01, 7.03, 41.01, 41.02A, 41.04 Migration Act 1958 (Cth), s.420(2) Racial Discrimination Act 1975 (Cth), ss.18B, 18C, 22 Supreme Court Rules (Victoria), r.36.01 |
| The Shorter Oxford English Dictionary on Historical Principles (Oxford: Clarendon Press, 1973) |
| Applicant: | NIRMALA KANAPATHY ON BEHALF OF RAJANDRAN KANAPATHY |
| Respondent: | MEGAN IN DE BRAEKT |
| File Number: | PEG 192 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 10 June 2011 |
| Date of Last Submission: | 10 June 2011 |
| Delivered at: | Perth |
| Delivered on: | 21 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms House |
| Solicitors for the Applicant: | Slater & Gordon |
| Counsel for the Respondent: | Ms in de Braekt |
| Solicitors for the Respondent: | Megan in de Braekt |
ORDERS
That the applicant’s application in a case filed 7 February 2011 be upheld, and that the name of the applicant on the application in these proceedings be corrected so as to read “Rajandran Kanapathy”.
That the respondent’s application in a case filed 8 June 2011 seeking the summary dismissal of the application be dismissed.
That the respondent’s application in a case filed 8 June 2011 seeking an addendum to the Reasons for Decision in Kanapathy v in de Braekt & Anor [2010] FMCA 1015 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 192 of 2010
| NIRMALA KANAPATHY ON BEHALF OF RAJANDRAN KANAPATHY |
Applicant
And
| MEGAN IN DE BRAEKT |
Respondent
REASONS FOR JUDGMENT
Introduction – the application
The substantive application in this matter relates to an application in the Court’s human rights jurisdiction with respect to alleged unlawful discrimination on the basis of race. Underlying the application is a complaint to the Australian Human Rights Commission,[1] brought by Mrs Kanapathy on behalf of Mr Kanapathy, alleging contravention of the Racial Discrimination Act 1975 (Cth),[2] but which was terminated under s.46PO(1) of the Australian Human Rights Act 1986 (Cth)[3] by the President of the AHRC as it was not able to be resolved.
[1] “AHRC Complaint” and “AHRC” respectively.
[2] “RD Act”, ss.18B and 18C.
[3] “AHRC Act”. The letter from the delegate of the President of the AHRC to Mrs Kanapathy (“Termination Letter”) is Attachment A to the application.
In this case it is alleged that the respondent, Ms in de Braekt, racially discriminated against Mr Kanapathy by personally abusing him, with reference to his place of national origin, when Mr Kanapathy, in his capacity as a security officer at the Central Law Courts building in Perth, requested that Ms in de Braekt undergo a security search upon entry to that building.
Applications in a case
There are three applications in a case presently before the Court, which also broadly define the issues, as follows:
a)an application in a case by the applicant to amend the name of the applicant from “Nirmala Kanapathy on behalf of Rajandran Kanapathy” to “Rajandran Kanapathy”;
b)an application in a case by the respondent, Ms in de Braekt, that the application be summarily dismissed with costs because it has not been brought by a person with capacity to make the application, and for other, essentially procedurally based, reasons; and
c)an application in a case by Ms in de Braekt for the amendment of this Court’s Reasons for Judgment in Kanapathy v in de Braekt & Anor[4] on the basis that information then before the Court in relation to alleged service of documents on Ms in de Braekt was inaccurate or misleading.
Nullity and name change
[4] [2010] FMCA 1015 (“Kanapathy (No. 1)”).
Introduction
Whether the proceedings are a nullity, and whether the name of the applicant can be changed, are matters arising in the context of who may make an application to this Court upon the termination of a complaint to the AHRC.
Legislation
Section 46P(1) and (2) of the AHRC Act provides as follows:
(1) A written complaint may be lodged with the Commission, alleging unlawful discrimination.
(2) The complaint may be lodged:
(a) by a person aggrieved by the alleged unlawful discrimination:
(i) on that person's own behalf; or
(ii) on behalf of that person and one or more other persons who are also aggrieved by the alleged unlawful discrimination; or
(b) by 2 or more persons aggrieved by the alleged unlawful discrimination:
(i) on their own behalf; or
(ii) on behalf of themselves and one or more other persons who are also aggrieved by the alleged unlawful discrimination; or
(c) by a person or trade union on behalf of one or more other persons aggrieved by the alleged unlawful discrimination.
Section 46PO(1), (2) and (4) of the AHRC Act provides as follows:
(1) If:
(a) a complaint has been terminated by the President under section 46PE or 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
(2) The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c) an order requiring a respondent to employ or re‑employ an applicant;
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.
Section 3(1) of the AHCR Act defines “affected person” to mean “in relation to a complaint, a person on whose behalf the complaint was lodged”.
From the terms of the AHRC Complaint it is evident that Mr Kanapathy would be a “person aggrieved by the alleged unlawful discrimination” for the purposes of s.46P(2)(a) of the AHRC Act. By reason of s.46P(2)(c) of the AHRC Act Mrs Kanapathy was entitled to make the application to the AHRC on Mr Kanapathy’s behalf. Indeed, it may be that the spouse of a victim of discrimination may be a person aggrieved for the purposes of s.46P(2) of the AHRC Act.[5] Mr Kanapathy is clearly an “affected person” as defined in s.3(1) of the AHRC Act as he is the person on whose behalf the AHRC Complaint was lodged.
[5] Cameron v Human Rights and Equal Opportunity Commission & Anor (1993) 46 FCR 509 at 519 per French J.
Section 46PR of the AHRC Act provides that:
In proceedings under this Division, the Federal Court and the Federal Magistrates Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.
Section 42 of the Federal Magistrates Act 1999 (Cth)[6] provides that the Court “[i]n proceedings before it … must proceed without undue formality …”.
[6] “FM Act”.
Rule 7.01 of the Federal Magistrates Court Rules 2001 (Cth)[7] provides as follows:
(1) At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.
(2) Subject to rule 7.03, the Court or a Registrar may allow an amendment even if the effect would be to include a cause of action arising after the proceeding was started.
[7] “FMC Rules”.
Rule 7.03 of the FMC Rules provides as follows:
(1) This rule applies if an application in a general federal law proceeding for leave to make an amendment is made after the end of a relevant period of limitation current at the date when the proceeding was started.
(2) The Court may give leave to make an amendment correcting the name of a party, even if it is alleged that the effect would be to substitute a new party, if:
(a) the Court considers it appropriate; and
(b) the Court is satisfied that the mistake sought to be corrected was genuine and was not misleading or such as to cause reasonable doubt as to the identity of the party.
(3) The Court may give leave to make an amendment changing the capacity in which a party seeks orders (whether as applicant or respondent by counterclaim) if:
(a) the Court considers it appropriate; and
(b) the capacity in which the party will seek orders is one in which, at the time when the proceeding was started by the party, the party might have sought orders.
(4) The Court may give leave to make an amendment even if the effect is to include a new cause of action, if:
(a) the Court considers it appropriate; and
(b) the new cause of action arises out of the same, or substantially the same, facts as a cause of action for which relief has already been claimed in the proceeding by the party seeking leave to amend.
Applicant’s submissions
The applicant submits that power to amend the applicant’s name exists under r.7.01 of the FMC Rules.
The applicant then further submits that:
a)Mrs Kanapathy filed the AHRC Complaint on behalf of Mr Kanapathy;
b)Mr and Mrs Kanapathy were unrepresented at the time of the filing of the AHRC Complaint;
c)upon commencement of the application in this Court Mr and Mrs Kanapathy remained unrepresented, and as to the name of the applicant, the substantive application was filed in the name of the applicant in the AHRC Complaint;
d)at no point was there any question that Mr Kanapathy was the rightful applicant; and
e)Mr Kanapathy authorised Mrs Kanapathy to make the application on his behalf.[8]
[8] Affidavit of Nirmala Kanapathy, undated, filed 9 June 2011, para.4 (“Mrs Kanapathy’s Affidavit”).
With respect to Donnelly v Prentice[9] the applicant submits that:
[9] (2003) 1 ABC(NS) 205; [2003] FMCA 50 (“Donnelly”).
a)in Donnelly this Court said as follows:
… Div 7.1 of the Federal Magistrates Court Rules would permit the amendment of an application to substitute a different applicant for the applicant initially instituting the proceedings, just as they could be used to substitute a different respondent. Commonly, the interests of justice will support a change in an applicant or respondent to correct an error or oversight. Where proceedings are properly instituted the court should, in the ordinary course, not adopt too technical a view so as to frustrate the resolution of the issue sought to be resolved.[10]
The Court therefore ought to allow the applicant’s application to amend the name of the applicant pursuant to its powers under r.7.01 of the FMC Rules;
b)in Donnelly, Mr Donnelly’s name was inserted by mistake, and the correct applicant was in fact Mr Pascoe, as trustee in bankruptcy for the bankrupt. Mr Pascoe was at all times the trustee of the bankrupt. This Court did not allow the change in name because Mr Donnelly did not have a relevant interest in the application, and lacked standing to pursue it;[11]
c)Donnelly is distinguishable because:
i)in Donnelly the correct applicant was given leave to file an amended application within 28 days.[12] The present case is clearly different in that Mr Kanapathy would be out of time and no corrected application could be filed;
ii)the application is based on the AHRC Act and the RD Act, which are drafted for the benefit of complainants, often self-represented. Section 46PR of the AHRC Act which provides that this Court is not bound by technicalities or legal forms (subject to Chapter III of the Constitution) is applicable in this case. There was no comparable relevant legislation in Donnelly; and
iii)in Donnelly the application was for one person to be substituted for a different person, and there was no warning to the respondents as to who the correct applicant was prior to the application being made. In the present matter there has never been a misapprehension about who the correct applicant in fact was, and so much is clear from the naming of the applicant as “Mrs … Kanapathy on behalf of Mr Kanapathy”.
[10] Donnelly ABC(NS) at 206 per Driver FM; FMCA at para.6 per Driver FM.
[11] Donnelly ABC(NS) at 206 per Driver FM; FMCA at para.5 per Driver FM.
[12] Donnelly ABC(NS) at 207 per Driver FM; FMCA at para.9 per Driver FM.
The applicant cites Fair Work Ombudsman v Nerd Group Australia Pty Ltd[13] where this Court said:
[13] (2010) 197 IR 431; [2010] FMCA 569 (“Nerd Group”).
19. There are several relevant considerations in determining whether or not to exercise the discretion that the power under r 7.01(1) of the FMC Rules gives to the Court:
a) firstly, the interests of justice. In SZGTE it was said that the interests of justice were paramount, and in both SZGTE and Vijayakumar the interests of justice were said to be the “ultimate consideration”;
b) secondly, it is relevant to consider whether the party seeking the amendment is acting in good faith;
c) thirdly, it is relevant to consider whether the amendment sought would be futile. If the grounds for the amendment are of “doubtful merit” it is likely that they will be refused;
d) fourthly, it is relevant to consider whether any injustice to the non-amending party cannot be adequately compensated for. This includes consideration of the consequences of a late adjournment if an amendment is granted, including consideration of whether costs orders are likely to be met …; and
e) fifthly, it is relevant to consider the question of case management.[14]
[14] Nerd Goup IR at 437 per Lucev FM; FMCA at para.19 per Lucev FM (footnotes omitted).
The applicant made the following submissions based on the judgment in Nerd Group:
a)the interests of justice are taken not to be affected by a name change, and the interests of justice, in fairness to the applicant, require that the Court exercise its power to amend the name of the applicant;
b)Mr Kanapathy is acting in good faith in seeking the name change. There was no advantage to Mr Kanapathy in the original error made in the notation of the name of the applicant;
c)the change would not be futile, but necessary for Mr Kanapathy to continue proceedings in his own right;
d)Mr Kanapathy will be unable to recommence proceedings in his own name if the name change is not effected as he is out of time to file a new application;
e)there will be no prejudice to Ms in de Braekt that cannot be compensated for in allowing a change to occur, as she has not been misled about the nature of the proceedings and who the true applicant is; and
f)s.46PR of the AHRC Act is of paramount consideration in this matter. Mr Kanapathy and his wife, being self-represented at the time the application was made, made a mistake in the notation of the name.
The applicant also relies upon Bridge Shipping Pty Ltd v Grand Shipping SA & Anor.[15] In Bridge Shipping the applicant wished to substitute the name of the respondent carrier with that of another, it having been misidentified at the time of filing. Rule 36.01 of the Supreme Court Rules (Victoria) was in issue, and relevantly provided as follows:
[15] (1991) 173 CLR 231 (“Bridge Shipping”).
1) For the purpose of determining the real question in controversy between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.
(2) ….
(3) An indorsement of claim or pleading may be amended under paragraph (1) notwithstanding that the effect is to add or substitute a cause of action arising after the commencement of the proceeding.
(4) A mistake in the name of a party may be corrected under paragraph (1), whether or not the effect is to substitute another person as a party.
(5) Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced.
(6) The Court may, notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, make an order under paragraph (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise.
(7) For the purpose of paragraph (6) "any other party to the proceeding" includes a person who is substituted as a party by virtue of an order made to correct a mistake in the name of a party.
The applicant relied upon the following passage in Bridge Shipping:
Crockett J. thought that "the better view is that the rule as to correction of a mistake in the name of a party was intended to (and, in fact, must) be confined to mere cases of misnomer, misdescription, typographical or clerical error and the like". To confine r. 36.01 to "mere cases of misnomer" and the like is unduly restrictive, but to spell out the boundaries of the provision is far from easy. Certainly a mistake in the name of a party includes a formal error. And, notwithstanding Davies v Elsby Bros Ltd - fn_LAWREP-AUS-173-CLR-0231-FN.40#fn_LAWREP-AUS-173-CLR-0231-FN.40, one might think that a reference to a defendant as a firm, when it was a company, is a mistake in the name of the defendant even though, conceptually, different entities are involved. At the other end of the spectrum, a wrong assessment of one person among several as the person liable in respect of the plaintiff's claim is not a "mistake in the name of a party". As Crockett J. observed, that amounts to saying no more than that it was always the intention to sue the person who was liable. It is not particularly helpful to look to earlier decisions turning on differently worded provisions.
In Davies v Elsby Bros Ltd Devlin L.J. postulated the following test:
How would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: "Of course it must mean me, but they have got my name wrong," then there is a case of mere misnomer. If, on the other hand, he would say: "I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries," then it seems to me that one is getting beyond the realm of misnomer.
Devlin L.J.'s test has been referred to in England and in Australia with apparent approval. Devlin L.J. was concerned to reject the argument that the intention of the framer of the document was decisive. It was in that context that his Lordship spoke of the reaction of "a reasonable person receiving the document". In the present case the question is whether there was a mistake in the name of the third party (though it is usually the name of the defendant with which these applications are concerned). That question must be answered by reference to all the circumstances including the state of knowledge and belief of the plaintiff and the plaintiff's intentions, judged by reference to the circumstances. Against that background and as part of the overall circumstances, it may be relevant to look at the reaction of the "reasonable" recipient of such a document. But, for the purposes of r. 36.01, I do not find Devlin L.J.'s test helpful.[16]
[16] Bridge Shipping at 248-249 per Toohey J.
The applicant made further submissions to the effect that:
a)when Mrs Kanapathy filed the AHRC complaint “on behalf of” Mr Kanapathy, a mistake was made, and what was intended was for the name of the applicant to be “Rajandran Kanapathy”;
b)due to his stress condition, Mrs Kanapathy commenced the proceedings in the AHRC for Mr Kanapathy;
c)Mr and Mrs Kanapathy, upon commencement of proceedings in this Court, believed that the application must be in the same form as the AHRC Complaint;
d)a technicality brought about by an error of a self-represented litigant should not be the basis for an injustice whereby an applicant is not heard;[17]
e)the Court has the discretion to order such costs as it sees fit;[18] and
f)all documents in these proceedings in the possession of Mr Kanapathy’s lawyers have been served on Ms in de Braekt, the latest by 10 March 2011,[19] save for the AHRC Complaint itself which was only served on Ms in de Braekt at the time of the hearing.
[17] Citing AHRC Act, s.46PR.
[18] FM Act, s.79(3).
[19] Affidavit of Ashlea Sinead Coleman, sworn 18 March 2011.
Ms in de Braekt’s submissions
Ms in de Braekt filed lengthy submissions in relation to whether the proceedings were a nullity because of the incorrect naming of the applicant, and whether the Court had power to change the applicant’s name. Ms in de Braekt submitted that:
a)the issue of standing has to be determined on the proper construction of the AHRC Act;[20]
[20] Citing Stephenson v Human Rights and Equal Opportunity Commission & Anor (1996) 68 FCR 290.
b)Mr Kanapathy was the “affected person” in relation to the complaint, and therefore the proper applicant in these proceedings;
c)it follows that Mrs Kanapathy had no standing to make, or maintain, the application in these proceedings;
d)as the application has not been commenced by a person with the required legal standing it is a nullity;
e)the FMC Rules do not deal with the substitution of an entirely different entity in proceedings, and it is therefore necessary by reference to r.1.05 of the FMC Rules to look to O.13 r.2(1) and (4) of the Federal Court Rules 1979 (Cth);[21]
[21] “Former FC Rules”.
f)there is no evidence before the Court that there was a “mistake in the name or identity of a party”, namely, the applicant in these proceedings;
g)in this case it is clear that the alleged affected person is Mr Kanapathy, and the situation is therefore distinguishable from other cases dealing with identity of parties, mainly in respect of companies or organisations, such as Stokes & Ors v Royal Flying Doctor Service & Anor (No. 1);[22]
[22] (2003) 176 FLR 66; [2003] FMCA 164.
h)prejudice will accrue to Ms in de Braekt as:
i)the proceedings have not been validly commenced because they have been commenced by a person who does not have the required legal standing to make and maintain the substantive application;
ii)Ms in de Braekt intended to rely upon the lack of standing to her advantage in the proceedings, and if the amendment were granted this course would no longer be available and Ms in de Braekt would be deprived of a real chance of successfully defending the proceedings on that basis; and
iii)costs orders may be affected if the change is made because Ms in de Braekt may not be able to recover costs orders presently made against the applicant from the substituted applicant, and the filing of written undertakings may not resolve that issue;
i)the proceedings have not been properly or diligently pursued or prosecuted by the applicant, in that:
i)the remedies sought are not particularised;
ii)attachments to the application have not been served on the respondent nearly five months after the proceedings were commenced;
iii)the precise nature of the alleged loss, damage and compensation has not been particularised; and
iv)the precise amount of compensation sought has not been specified, or particularised;[23]
[23] Citing Kanapathy v in de Braekt & Anor (No. 2) [2011] FMCA 51 (“Kanapathy (No. 2)”).
j)in relation to an affidavit of Mr Kanapathy, sworn 7 February 2011:[24]
[24] “Mr Kanapathy’s February 2011 Affidavit”.
i)Mr Kanapathy is not presently the applicant in these proceedings and the content of the affidavit is therefore irrelevant;
ii)the effect of the amendment would be to allow an entirely different entity as the applicant nearly six months after the application was commenced; and
iii)Mr Kanapathy’s February 2011 Affidavit provides no explanation as to why he did not commence the application, rather than his wife on his behalf;
k)the applicant claims that Mr Kanapathy was not represented by lawyers at the time the application was filed, but does not depose as to when lawyers were instructed on his behalf, and in any event it was not until 7 February 2011, more than three months after the application was filed that an application was made to amend the applicant’s name;
l)no affidavit has been provided to explain why the lawyers appearing did not notice sooner, or did not realise themselves, that the application had been brought by a person without the required standing;
m)the delay in making the application is itself prejudicial to Ms in de Braekt;
n)in relation to Mr Kanapathy’s claim to be suffering from stress, and that this affected his ability to make the application in his own name:
i)it did not prevent the application being made “on his behalf”, and it is therefore difficult to understand how the stress affected the making of the application at all;
ii)it was not necessary for Mr Kanapathy to personally attend to the commencement of the proceedings in his own name, that is, to file the application, and therefore his alleged inability to attend court for that purpose provides no basis for the application not to be made in his own name;
iii)no details are provided as to what the alleged cause of Mr Kanapathy’s claimed “stress” is, or how it is manifesting itself, and how precisely it prevented him from attending court or completing the relevant application form in his own name, and there is, therefore, no valid basis for the application not to have been prepared and filed in his own name;
iv)no affidavit has been provided by any person who has treated, or is treating, Mr Kanapathy for his claimed stress;
v)whilst Mr Kanapathy claims he was too stressed to attend court, he was able to seek and engage legal representation shortly after the application was commenced, and he expressly says that he “retained Slater & Gordon as my lawyers after the application had been commenced.”[25] This contradicts his claim as to why the proceedings could not be commenced in his own name; and
[25] Mr Kanapathy’s February 2011 Affidavit, para.6.
vi)Mr Kanapathy, in company with Mrs Kanapathy, had apparently attended at Ms in de Braekt’s office prior to usual business hours on an unspecified date in November 2010 in an attempt to personally serve the application on Ms in de Braekt, which is inconsistent with a person claiming to be suffering from stress in relation to the proceedings, as it puts Mr Kanapathy in close proximity, and possible interaction, with Ms in de Braekt;
o)if the application were to be granted it would have the effect of substituting one applicant for another well outside of the 60 day time limit provided for in the AHRC Act, and no good reason exists to do so on the basis of the usual test for an extension of time;[26]
[26] AHRC Act, s.46PO(2).
p)the remedies sought, namely:
i)a letter of apology;
ii)compensation for suffering; and
iii)the respondent to attend any racism training courses,
are not remedies or final orders within the power of the Court to order;
q)a letter of apology does not fall within the scope of s.46PO(4)(b) of the AHRC Act as an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant, as a letter of apology would not, and could not, redress any loss or damage suffered by an applicant, and would, in any event, be worthless and meaningless;
r)no details have been provided of the loss and damage suffered by Mr Kanapathy because of Ms in de Braekt’s alleged conduct, and is a further basis for finding the application to be incompetent, and also oppressive if an order substituting the applicant is allowed;
s)an order for the respondent to attend anti-racism training courses is not within the power of the Court as it is not an order which requires a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant, and could not in any event, redress any loss or damage suffered by an applicant;[27]
t)justice is not served by granting an application to amend the name of the applicant in circumstances where the final orders or remedies sought are not within the jurisdiction of the Court, and prolonging proceedings in which they are brought is contrary to the public interest, as scarce public resources are wasted on proceedings in which it is not legally possible to obtain an enforceable outcome;
u)the exercise of the Court’s discretion to allow the amendment to the application must be considered within the context of the proceedings as a whole, and must take into account all the matters set out above; and
v)the proceedings were commenced in Mrs Kanapathy’s name for an ulterior purpose, namely, an attempt to avoid liability for costs orders.
[27] AHRC Act, s.46PO(4)(b).
If the application to amend the name of the applicant was not successful, then Ms in de Braekt submitted that the Court would have to summarily dismiss the substantive proceedings as they cannot possibly succeed.
Consideration – nullity and name change
Section 46PR of the AHRC Act applies to this matter. Section 46PR of the AHRC Act provides that, absent Constitutional issues, which are not relevant here, the Court may, in its discretion, apply a less technical and less formally legal approach. That imports a discretion the exercise of which recognises that the AHRC Act is remedial legislation intended to benefit those who have been, or who allege that they have been, discriminated against. It is a discretion to be exercised recognising that litigants in proceedings under the AHRC Act are often self-represented, and that the nuances of legislation and procedures which might be recognised and applied automatically by a lawyer, might not be recognised nor applied by a litigant in person, or those persons permitted to make a complaint on behalf of a “person aggrieved” at the AHRC stage. Section 46PR of the AHRC Act endorses the Court taking a “flexible approach”,[28] or for the Court to proceed in such a way that it gets to the substance of the matter and decides the essential questions in issue between the parties.[29] Of s.46PR of the AHRC Act, and s.42 of the FM Act, this Court has succinctly observed that “… these provisions are designed to ensure that the form does not triumph over substance and that justice prevails over technicalities.”[30]
[28] Maghiar v State of Western Australia [2002] FCA 262 at para.22 per French J.
[29] De Motte v Minister for Immigration & Ethnic Affairs & Anor (1997) 44 ALD 521 at 527 per Tamberlin J (“De Motte”), there dealing with s.420(2) of the Migration Act 1958 (Cth) which provided that the Refugee Review Tribunal in a review of a decision of a delegate “(a) is not bound by technicalities, legal forms or rules of evidence”.
[30] Philip v State of New South Wales [2011] FMCA 308 at para.27 per Lloyd-Jones FM (“Philip”).
Were this matter to be determined on the basis of the application of the provisions of s.46PR of the AHRC Act and s.42 of the FM Act there can be little doubt that the amendment sought by the applicant to the name of the applicant would be granted, as to do so is entirely consistent with the intent of the legislative provisions cited, and would allow the Court to deal with the substance of the matter by having the “affected person” before it as the applicant.
The matter is complicated, however, by the existence of rr.7.01 and 7.03 of the FMC Rules, which deal with amendments to documents, and, specifically in the case of r.7.03 of the FMC Rules, to the name of a party, outside of the relevant period of limitation current at the date the proceedings started, even when the effect of doing so would be to substitute any party.[31]
[31] FMC Rules, r.7.03(2).
It is necessary to remember that the FMC Rules, as subsidiary legislation, must be read by reference to the FM Act, and the intention of s.42 of the FM Act.[32]
[32] One.Tel Limited & Anor v Australian Communications Authority (2001) 110 FCR 125 at 141 per Hill J; [2001] FCA 54 at para.64 per Hill J.
This is a proceeding to which r.7.03(1) of the FMC Rules applies. The AHRC Complaint was terminated on 23 August 2010. The application to this Court was made on 20 October 2010, two days within the 60 day time limit for the making of such an application.[33] The application in a case to amend the name of the applicant was made on 7 February 2011, more than three months outside the 60 day time limit.
[33] AHRC Act, s.46PR(2).
Rule 7.03(2) of the FMC Rules applies in these circumstances in that the amendment is seeking to correct the name of the applicant, and arguably to substitute a new party, Mr Kanapathy, for an existing party, Mrs Kanapathy. The Court may, therefore, make the amendment if the Court:
a)considers it appropriate;[34] and
b)is satisfied that:
i)the mistake sought to be corrected was genuine; and
ii)the mistake was not misleading, or such as to cause reasonable doubt as to the identity of the party.[35]
[34] FMC Rules, r.7.03(2)(a).
[35] FMC Rules, r.7.03(2)(b).
The Court considers it appropriate to amend the name of the applicant to “Rajandran Kanapathy” because:
a)the AHRC Complaint was made “on behalf of” Mr Kanapathy;
b)the application to this Court was made “on behalf of” Mr Kanapathy;
c)the relevant factual matrix of the matters in issue in relation to the alleged racial discrimination remains the same as between the AHRC Complaint and the application;
d)there has never been any doubt that the matters in issue are issues affecting Mr Kanapathy;
e)Mrs Kanapathy is not the appropriate applicant for the purposes of an action in this Court as she is not the “affected person”, and in any event, had no actual involvement in the matters the subject of the AHRC Complaint, which factual matrix remains the basis for the subsequent application to this Court; and
f)unlike Mr Donnelly in Donnelly, Mr Kanapathy otherwise has standing and a relevant interest in pursuing the application.
The Court must then ask whether the mistake sought to be corrected was a genuine one, and not misleading or such as to cause reasonable doubt as to the identity of the party.
The first issue in this respect is whether or not there has in fact been a mistake. Ms in de Braekt argues that there was no mistake by the applicant because what was done was what was intended to be done, namely, that Mrs Kanapathy made the application, and made it on behalf of Mr Kanapathy.
Although Ms in de Braekt’s approach reflects that of the dissenting judgment in Bridge Shipping,[36] the approach is too simplistic. It adopts what was done, or intended to be done, and says that because what was done, or intended to be done, was done, there was no mistake.
[36] Bridge Shipping at 245 per Dawson J.
The better approach is to look at all the circumstances of the case, including the applicant’s state of knowledge and belief and intentions, judged by reference to the circumstances. That approach should also not be overly technical or legally formalistic, and should not prevent the Court from dealing with the substance of the issue or from administering justice.[37] It might also be relevant to look at the reaction upon receipt of the relevant documents, of a reasonable person in Ms in de Braekt’s position.[38] There can be no real doubt that a reasonable person in Ms in de Braekt’s position, having received and read the application, would understand that it related to alleged racial discrimination against Mr Kanapathy.
[37] AHRC Act, s.46PR; FM Act, s.42; De Motte at 427 per Tamberlin J; Philip at para.27 per Lloyd-Jones FM.
[38] Bridge Shipping at 249 per Toohey J.
There was unchallenged evidence from both Mr Kanapathy and Mrs Kanapathy that the application to this Court was made in the name of Mrs Kanapathy on behalf of Mr Kanapathy because they were told at the Registry when filing the application that it had to be made in a form which was the same as that on the AHRC Complaint.[39] The Court can only operate on the basis of the admitted evidence, which is uncontroverted. There is nothing inherently incredible in the evidence concerning what Mr and Mrs Kanapathy assert they were told at the Registry, and in the absence of contradiction, their evidence of these events is accepted by the Court.
[39] Mrs Kanapathy’s Affidavit, paras.15 and 16; affidavit of Rajandran Kanapathy, sworn 9 June 2011, para.5 (“Mr Kanapathys June 2011 Affidavit”).
There was brief uncorroborated evidence from Mr Kanapathy about the state of his health, and a stress complaint. There was no medical evidence to support Mr Kanapathy’s evidence in that regard. There was evidence from Ms in de Braekt about conversations she had heard that Mr Kanapathy was involved in, and various proceedings that he had sat in on, whilst employed as a security officer at the Central Law Courts in Perth.
The Court has wholly disregarded Mr Kanapathy’s evidence concerning his medical condition as being so vague as to be unreliable, and uncorroborated, or not supported by medical evidence. As to Mr Kanapathy’s activities as a security officer at the Central Law Courts they are irrelevant to a proper consideration of the issues before this Court. And, even if Mr Kanapathy did have some basic knowledge of criminal and bail procedure, as appears to be asserted by Ms in de Braekt, that is of no assistance in determining whether or not a mistake has been made in the name of the applicant in filing proceedings in this matter. In that regard, the Court notes that the provisions of the AHRC Act allowing a representative complaint to be filed at the AHRC stage by a “person aggrieved”, or on that person’s behalf,[40] but for an application to be filed in this Court by an “affected person”,[41] are apt to be confusing, particularly to a litigant in person or a non-lawyer.
[40] AHRC Act, s.46P(2).
[41] AHRC Act, s.46PO; and definition of “affected person” in AHRC Act, s.3(1).
Having regard to the provisions of the AHRC Act, and the concepts of “aggrieved” and “affected” persons, and, therefore, to the persons who may make a complaint to the AHRC and an application to this Court, the Court accepts that when Mr and Mrs Kanapathy were told that the application had to be filed in the same name as the AHRC Complaint was filed in, or at least understood that to be the case from what they were told, Mr Kanapathy was not aware that Mrs Kanapathy could not in fact be named as the applicant on the application.
In all of the above circumstances, the Court accepts that a “mistake” was made by the applicant when the application was filed in the name of “Mrs … Kanapathy on behalf of Mr Kanapathy”. It also follows from the forgoing that the mistake was genuine.
The mistake was not one which was misleading or such as to cause reasonable doubt as to the identity of the party. That is because it was always an application:
a)made on behalf of Mr Kanapathy; and
b)which related to facts concerning alleged racial discrimination by Ms in de Braekt against Mr Kanapathy.
The Court has, therefore, concluded that this was a case of a genuine and not misleading mistake in respect of which there is no reasonable doubt as to the identity of the true applicant, and in respect of which it is appropriate to order, pursuant to rr.7.01 and 7.03(1) and (2) of the FMC Rules, that the name of the applicant be amended to read “Rajandran Kanapathy” as sought in the applicant’s application in a case.
Because the order operates as a correction, it is as if the proceeding was started by Mr Kanapathy, and all extant orders continue to have effect. This also disposes of the suggestion, for which there was no evidentiary support in any event, that the change of name application was a ploy to avoid any costs in relation to earlier proceedings.
It follows that Ms in de Braekt’s application to summarily dismiss the application on the basis that the current application names the wrong applicant, and that the applicant’s application in a case ought not be granted, should be dismissed.
Given the conclusions reached above with respect to the effect of the various provisions of the AHRC Act, FM Act and FMC Rules, it is unnecessary to consider the various submissions that were made with respect to the Former FC Rules.
Summary dismissal
Service
Ms in de Braekt asserts that she was not properly served with attachment A, which is the Termination Letter, and attachment B, which is the AHRC Complaint, to the application, and seeks to have the application summarily dismissed on this basis, amongst others.
Given the nature of the Termination Letter and the AHRC Complaint, that is that they were documents which were part of the AHRC Complaint process, the failure to serve them has little practical effect, as their content was already known by Ms in de Braekt. Further, even if they were not served as asserted by Ms in de Braekt, it has not prevented her from giving adequate or proper consideration to the matters to be argued. That much is evident from the fact that any failure to serve the Termination Letter and the AHRC Complaint did not prevent Ms in de Braekt from filing:
a)a reasonably detailed Response on 10 March 2011;
b)a 15 page Outline of Submissions dated 9 April 2011, but not filed until the day of the hearing of the applications in a case, 10 June 2011; and
c)a 13 page and 91 paragraph affidavit (much of which was in fact actually submissions) sworn on 2 June 2011, but not filed until 8 June 2011,[42] to which were attached copies of the Termination Letter and the AHRC Complaint, which formed attachments A and B to the application.
[42] “Ms in de Braekt’s June 2011 Affidavit”.
It is relevant to observe that the Response is a detailed one, and clearly apprehends that allegations of race discrimination are being made against Ms in de Braekt, and which responds to those allegations, albeit in an idiosyncratic and, in many respects, embarrassing manner. The embarrassment does not arise from a lack of knowledge of the content of the Termination Letter and the AHRC Complaint, but rather, for example, from a lawyer pleading in a response to an allegation of race discrimination that as a ten year old she selected Dr Martin Luther King Junior’s “I Have a Dream” speech to recite in a public speaking competition, and still knows that speech off by heart to this day, and then asking “Does this sound like someone who would say something racist?”[43]
[43] Response, Part C, para.9.
In circumstances where:
a)there has been a detailed Response;
b)all documents have now been served;
c)Ms in de Braekt was able to make detailed oral and written submissions, both in her Outline of Submissions and in Ms in de Braekt’s June 2011 Affidavit; and
d)the proceedings have not yet been the subject of a Reply, or mediation before a Registrar of this Court,
it is not apparent that any disadvantage or prejudice has been suffered by Ms in de Braekt in these proceedings, and, if it were ever appropriate to summarily dismiss a case because of a failure to serve such attachments, this is not such a case.
To the extent that Ms in de Braekt’s first application in a case seeks summary dismissal based on failures with respect to service of the attachments to the application, the application in a case is dismissed.
Particulars and statement of claim
There is some suggestion in Ms in de Braekt’s June 2011 Affidavit that the application is not properly particularised and that there has been a failure to file a statement of claim, or that at least no statement of claim has been filed.
The above criticism may readily be answered by reason of the fact that a human rights application to this Court requires only the filing of an application in the required form, and the attaching of the Termination Letter and the AHRC Complaint (as they have been described in these proceedings), provisions which have been complied with in this case, albeit with some delay.[44] Likewise, a Response is required to be in a particular form, and that provision has been complied with by Ms in de Braekt.[45] Furthermore, there has been no application for particulars in this case and no order for a statement of claim or points of claim to be filed. In the circumstances the “suggestion” that the application should be dismissed on these bases is misconceived.
[44] FMC Rules, rr.41.01 and 41.02A.
[45] FMC Rules, r.41.04.
Remedies
The Outline of Submissions filed by Ms in de Braekt asserts that the application ought to be summarily dismissed because it seeks remedies that are not within the power of the Court to grant, and that the application has failed to provide details of the compensation applied for.
Apology
It is asserted that the ordering of a letter of apology from Ms in de Braekt is not within the power of the Court to order under s.46PO(4) of the AHRC Act which provides that the Court may order “ … a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant”.
The Court does have discretionary power to order an apology to be provided by a respondent in human rights proceedings.[46] In Creek the Federal Court would have ordered a short apology if the discrimination complaint had been made out, so as to vindicate the applicant in the eyes of her community.[47]
[46] Grulke v K C Canvas [2000] FCA 1415 at para.4 per Ryan J; Creek v Cairns Post Pty Ltd (2001) 112 FCR 352; [2001] FCA 1007 (“Creek”).
[47] Creek FCR at 360-361 per Kiefel J; FCA at para.35 per Kiefel J.
In Forbes v Commonwealth of Australia[48] an apology was ordered as part of a “benefit from achieving final closure”.[49]
[48] [2003] FMCA 140 (“Forbes FMC”).
[49] Forbes FMC at para.34 per Driver FM.
In Cooke v Plauen Holdings Pty Ltd trading as Bica Prolab[50] the applicant was held to be “entitled to a formal apology”, an apology being “frequently worth more to an applicant than money.”[51] Where an apology is offered if liability is found, it may be ordered.[52] In Campbell v Kirstenfeldt[53] this Court said, citing Forbes FMC and Oberoi v Human Rights and Equal Opportunity Commission,[54] that:
In relation to that conduct the applicant has sought a written apology. The Court has power to order an apology be made. Mr Kirstenfeldt gave evidence that he was prepared to give an apology to Mrs Campbell. In those circumstances, an apology in the terms sought by Mrs Campbell, which is set out above, is considered by the Court to be appropriate.[55]
[50] [2001] FMCA 91 (“Cooke”).
[51] Cooke at para.43 per Driver FM.
[52] Escobar v Rainbow Printing Pty Ltd (No. 2) (2002) 120 IR 84 at 95 per Driver FM; [2002] FMCA 122 at para.43 per Driver FM.
[53] (2008) EOC 93-515; [2008] FMCA 1356 (“Kirstenfeldt”).
[54] [2001] FMCA 34.
[55] Kirstenfeldt EOC at 74,770 per Lucev FM; FMCA at para.40 per Lucev FM.
Where it is plain that an apology will not come freely from a respondent, a court may decide not to exercise its discretion to order what would be a forced apology.[56]
[56] Jones v Toben [2002] FCA 1150 at para.106 per Branson J; Jones v Scully (2002) 120 FCR 243 at 308 per Hely J; [2002] FCA 1080 at para.245 per Hely J; Lee v Smith & Ors (No. 2) [2007] FMCA 1092 at para.16 per Connolly FM.
In Forbes v Australian Federal Police (Commonwealth of Australia),[57] this Court in Forbes FMC had ordered an apology,[58] but on appeal the source of the power to issue an apology was not raised, and it was not necessary in the view of the Full Court to deal with that issue.[59]
[57] [2004] FCAFC 95 (“Forbes Full Court”).
[58] See para.54 and footnote 49 above.
[59] Forbes Full Court at paras.3 and 7 per Black CJ, Tamberlin and Sackville JJ.
There is no doubt that the Court has discretionary power to order that an apology be made. There is, therefore, no basis for summary dismissal of the application, or any part of the application, on the basis that the ordering of an apology by Ms in de Braekt is without power.
Compensation
Although the required form requires that the details of compensation are to be provided,[60] details of compensation are frequently not provided, and even more frequently, amended in the course of the proceedings. This is not inconsistent with what often happens in other civil litigation. Given the early stage at which these proceedings remain, the Court will not order summary dismissal on the basis that the amount of compensation sought has not been quantified. The Court observes, however, that it is important, given that the range of compensation in existing cases may be as wide as $1,500 to $85,000,[61] that details of the compensation claimed, and how it has been calculated, are provided before any mediation is ordered in this Court.
[60] Part A, s.1.
[61] See Federal Discrimination Law, Part 7.2.2, at 118.
Attendance at course
Ms in de Braekt also seeks summary dismissal of the application on the basis that the Court has no jurisdiction to make an order that she attend an anti-racism training course, as sought by the applicant, because that would not be an order “to redress any loss or damage suffered by an applicant.”[62] The submission was based on pure assertion, unsupported by any relevant authority, or a consideration of the meaning of the particular words.
[62] AHRC Act, a.46PO(4).
The primary meaning of “redress” is:
Reparation of, satisfaction or compensation for, a wrong sustained or the loss resulting from this.[63]
[63] The Shorter Oxford English Dictionary on Historical Principles (Oxford: Clarendon Press, 1973) page 1773.
To the extent that “redress” of some, perhaps unquantifiable, loss or damage which has been suffered by an applicant is sought, it need not be repaired or compensated for by a monetary award, but, arguably redressed by some other form of “reparation” or “satisfaction”, such as seeing a person held to have discriminated against an applicant be educated in relation to the subject matter of the discrimination.
In the circumstances, the Court considers it arguable that an order directing a respondent to attend a particular kind of training course might be within power under s.46PO(4)(b) of the AHRC Act, and the application, or that part of it, seeking such redress, ought not be summarily dismissed.
Amendment and re-issuing of judgment in Kanapathy (No. 1)
The second application in a case in these proceedings by Ms in de Braekt seeks that the Reasons for Judgment in Kanapathy (No. 1) be amended and re-issued. The grounds for that are contained in Ms in de Braekt’s June 2011 Affidavit.
In essence, what Ms in de Braekt submits, is that the applicant did not give a complete rendering of the facts relevant to the issues of substituted service at the time the orders were made in Kanapathy (No. 1). Ms in de Braekt is concerned that the Reasons for Judgment in Kanapathy (No. 1) “reflects upon me in a poor light”,[64] and that people doing internet searches on her name will “think poorly of me”,[65] because the facts in Kanapathy (No. 1), taken from an affidavit of Mr Kanapathy sworn on 13 December 2010, were factually incorrect or misleading, in Ms in de Braekt’s view.[66] Ms in de Braekt suggests no fault on the part of the Court in making the judgment it did in Kanapathy (No. 1).[67]
[64] Ms in de Braekt’s June 2011 Affidavit, para.19.
[65] Ms in de Braekt’s June 2011 Affidavit, para.20.
[66] Ms in de Braekt’s June 2011 Affidavit, para.21.
[67] Ms in de Braekt’s June 2011 Affidavit, para.21.
The judgment in Kanapathy (No. 1) resulted in orders ordering substituted service, based on the difficulty in effecting personal service on Ms in de Braekt at the premises from which she worked as a lawyer.[68] There had been unsuccessful attempts by Mr and Mrs Kanapathy to effect personal service, make telephone contact, and send registered mail (the latter going uncollected).[69]
[68] Kanapathy (No. 1) at para.11 per Lucev FM.
[69] Kanapathy (No. 1) at para.9 per Lucev FM.
In Ms in de Braekt’s June 2011 Affidavit she says that:
23. Firstly Mr Kanapathy did not mention in his Affidavit, the whole content of the signs on my office door, as at October & November 2010. The signs on my officer door also say (words to the effect of) that:
· my office may be frequently unattended due to my court commitments;
· “walk ins” or persons without appointments are not accommodated by my practice & that prior arrangements always need to be made to meet with me personally;
· I may be contacted by mobile telephone;
· messages may also be left on my answering machine, which is connected to my landline telephone;
· Messages may also be sent to me by facsimile or email, with relevant details also appearing on the front of my office;
· Notes may be pushed under my office door.
24. It is very clear from the signs on my office doors & windows that a person cannot simply turn up at my office, at any time they like, without any prior arrangement & expect me to be there waiting for them.[70]
and:
30. In September – November 2010, I was in trials & had other Court appearances, & in particular a very lengthy trial in the District Court. This trial required me to be at Court nearly every day, all day, & on several occasions from 9am to after 5pm (on some occasions until after 7pm). Therefore at 8.50am in the morning, I was very unlikely to be at my office, as I was either at Court, or on my way to Court.
31. The Victoria Park Post Office is open between 9am – 5pm Monday to Friday. When I am in Court every day, it is impossible to attend the Victoria Park Post Office during their opening hours, to collect registered mail, or parcels, or any other such items. Mr Kanapathy’s Affidavit paints the picture that I was refusing to attend at the Victoria Park Post Office, or engaging in avoidance behaviour or the like, which is simply not true & causes me great offence.[71]
[70] Ms in de Braekt’s June 2011 Affidavit, paras.23-24.
[71] Ms in de Braekt’s June 2011 Affidavit, paras.30-31 (emphasis in original).
The above paragraphs simply prove the correctness of the judgment in Kanapathy (No. 1) in ordering substituted service by reason of the difficulty in effecting personal service on Ms in de Braekt. They provide no reason to amend or supplement the judgment in Kanapathy (No. 1).
Other factual material disputed by Ms in de Braekt included the distance from her office to that of the Victoria Park Post Office, and the amount of time that Mr and Mrs Kanapathy might have spent knocking on the door of Ms in de Braekt’s Victoria Park office, but these are not material to the Court’s consideration of her second application in a case.[72]
[72] Ms in de Braekt’s June 2011 Affidavit, paras.32-38.
It follows that Ms in de Braekt’s second application in a case will be dismissed.
Conclusions and orders
The Court has concluded that:
a)the name of the applicant on the application ought to be changed to “Rajandran Kanapathy”; and
b)Ms in de Braekt’s two applications in a case ought to be dismissed.
Having regard to these conclusions the Court will order that:
a)the applicant’s application in a case filed 7 February 2011 be upheld, and that the name of the applicant on the application in these proceedings be corrected so as to read “Rajandran Kanapathy”;
b)the respondent’s application in a case filed 8 June 2011 seeking the summary dismissal of the application be dismissed; and
c)the respondent’s application in a case filed 8 June 2011 seeking an addendum to the Reasons for Decision in Kanapathy v in de Braekt & Anor [2010] FMCA 1015 be dismissed.
The Court will hear from the parties as to costs and further directions.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 21 December 2012
- AGLC
- Kanapathy on behalf of Rajandran Kanapathy v In De Braekt (No 3) [2012] FMCA 1213
- Case
- [2012] FMCA 1213
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were primarily focused on the procedural aspects of the applications, including the correctness of the applicant’s name on the application, the validity of the respondent’s request for summary dismissal, and the appropriateness of the requested addendum to the reasons for decision. The court had to determine whether the applications met the necessary procedural requirements and whether they were justified based on the law and facts of the case.
In its reasoning, the court addressed the procedural concerns raised by the applications. It found that the applicant’s application to correct his name was valid and necessary for the accurate representation of the case. Regarding the respondent’s applications, the court concluded that neither the request for summary dismissal nor the request for an addendum to the reasons for decision was substantiated. The court emphasised the importance of proper procedural steps and the necessity for any amendments or dismissals to be supported by compelling evidence. Consequently, the court upheld the applicant’s application to correct the name, dismissed the respondent’s applications for summary dismissal and for an addendum, and made the corresponding orders as reflected in the case summary.
Orders
Orders of the court
1.
That the applicant’s application in a case filed 7 February 2011 be upheld, and that the name of the applicant on the application in these proceedings be corrected so as to read “Rajandran Kanapathy”.
2.
That the respondent’s application in a case filed 8 June 2011 seeking the summary dismissal of the application be dismissed.
3.
That the respondent’s application in a case filed 8 June 2011 seeking an addendum to the Reasons for Decision in Kanapathy v in de Braekt & Anor [2010] FMCA 1015 be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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