Kanapathy v In De Braekt
[2019] FCCA 2541
•29 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KANAPATHY v IN DE BRAEKT | [2019] FCCA 2541 |
| Catchwords: PRACTICE AND PROCEDURE – Application to set aside judgment under Federal Circuit Court Rules 2001 – where Applicant alleges legal representatives failed to appear on her behalf – where there is no evidence of legal representation – no reasonable excuse as to why there was no appearance – where there is a great prejudice to the original applicant if the judgement were to be set aside – where there is insufficient merit in the application – application dismissed. |
| Legislation: Racial Discrimination Act 1975 (Cth), s.18(c) Federal Circuit Court Rules 2001, rr.15.31(2), 16.05 |
| Cases cited: AID15 v Minister for Immigration & Anor (No.2) [2015] FCCA 2028 |
| Applicant: | RAJANDRAN KANAPATHY |
| Respondent: | MEGAN IN DE BRAEKT |
| File Number: | PEG 192 of 2010 |
| Judgment of: | Judge Vasta |
| Hearing date: | 29 July 2019 |
| Date of Last Submission: | 29 July 2019 |
| Delivered at: | Perth |
| Delivered on: | 29 July 2019 |
REPRESENTATION
| Applicant appearing in person |
| Respondent appearing in person |
ORDERS
That the Application in a Case filed 10 December 2018 is dismissed.
That there be no Orders as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 192 of 2010
| RAJANDRAN KANAPATHY |
Applicant
And
| MEGAN IN DE BRAEKT |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
On 10 December 2018, the Respondent in the main application, Megan Marie in de Braekt, filed an application in a case seeking that this Court set aside an order of Judge Lucev made on 31 March 2017 which dismissed a previous application in a case filed by Ms in de Braekt to set aside a judgment that His Honour Judge Lucev gave in September 2013.
Very briefly, the chronology is that, on 16 January 2009, Ms in de Braekt, who is a legal practitioner, is alleged to have come to the Court precinct. When asked by the Applicant in the main application, Mr Kanapathy (who was in charge of security for the building) to stop and allow a search of her purse, Ms in de Braekt called him names that I do not want to repeat, and made reference to his race.
Mr Kanapathy took the matter further to the Australian Human Rights Commission. The complaint was terminated by that body because there was no reasonable prospect of the matter being settled by conciliation. That aspect took quite some time.
Mr Kanapathy ended up filing an application in this Court in October 2010 where he was alleging that Ms in de Braekt had breached s.18C of the Racial Discrimination Act 1975 (Cth). As His Honour Judge Lucev noted, there were a number of issues that arose during the course of those proceedings. However, the main one, which was an application for summary dismissal of the application, was dismissed.
That meant that on 26 March 2013, there was to be a mediation of the matter. It was noted that Mr Kanapathy appeared, but Ms in de Braekt did not. At a directions hearing on 15 April 2013, the matter was adjourned for final hearing with an estimated time of one day, and that matter ended up being set down for final hearing on 17 September 2013.
On 24 July 2013, Mr Kanapathy filed a notice to admit facts addressed to Ms in de Braekt. That notice contained the following paragraph:
AND FURTHER TAKE NOTICE that if you do not, within 14 days of this notice upon you, serve a notice on the said name of person delivering the notice in “A” above disputing any facts (and authenticity of any document) above specified, that fact, (and the authenticity of that document) shall for the purpose of these proceedings, be admitted by you.
As Judge Lucev noted, the effect of the failure to serve a notice disputing the fact or the authenticity of a document set out in the notice to admit facts is consistent with r.15.31(2) of the Federal Circuit Court Rules 2001 (“the Rules”). As His Honour noted, Ms in de Braekt did not respond to the notice to admit facts and therefore she is taken to have admitted those facts.
His Honour noted that, on 17 September 2013, Ms in de Braekt did not appear at the final hearing. The final hearing still went ahead where Mr Kanapathy gave oral evidence, which went to the question of the effect of the alleged conduct upon him both at the time it occurred and subsequently.
His Honour gave a very detailed judgment and went through all of the appropriate legislation as well as the remedies. His Honour came to a conclusion that Ms in de Braekt had engaged in conduct rendered unlawful by section 18C of the Racial Discrimination Act1975 by her offensive behaviour towards Mr Kanapathy, which he then specified in three aspects.
His Honour ordered that Mr Kanapathy be awarded compensation for loss and damage totalling $12,500.
On 19 October 2015, well over two years after the judgment had been given, Ms in de Braekt filed an Application in a Case in this Court. The orders sought were that:
1. The Judgment & the Order on 25th September 2013 by Lucev J, in PEG192/2010 be set aside.
2. That the time for Ms in de Braekt to file & serve a response to the Notice To Admit Facts filed on behalf of Mr Kanapathy on, & dated 24th July 2013, be extended to 28 days from the date of these Orders.
3. A hearing be listed for the matter PEG192/ 2010 before a Judge of this Court, for determination according to law.
That application took some little time to work its way through the system. It would seem on 3 March 2017, the matter was set down for final hearing on the application to set aside the judgment. On that day, 31 March 2017, neither Mr Kanapathy nor Ms in de Braekt appeared and His Honour, quite properly, dismissed the application.
That would seem to have been the end of the matter until the present application was filed on 10 December 2018. Ms in de Braekt has sought this order pursuant to r.16.05 of the Rules. That rule allows a Court, in its discretion, to vary or set aside a judgment by order if a number of matters have occurred; the first being if the order was made in the absence of a party.
The original order of His Honour Judge Lucev, of 25 September 2013, was a full judgment that had been dealt with on the merits. It would seem to me, that, notwithstanding the existence of r.16.05 of the Rules, this was a matter that had been heard on the merits and a judgment given.
Even though the wording of r.16.05 does not go into the specifics of the absence of a party, it would seem to me, that the way in which that rule is usually administered is that the judgment sought to be set aside is one that has been delivered in the absence of a party, but more particularly, is a judgment that has been entered by default pursuant to r.13.03(1)(c) of the Rules. That is simply an observation and nothing turns on it.
Ms in de Braekt has pointed to an authority of my brother Judge Street, AID15 v Minister for Immigration & Anor(No.2) [2015] FCCA 2028, who, when dealing with the Court’s discretion under r.16.05 pointed out five aspects that are relevant to the exercise of the discretion. These are:
(a) Reason for failure to attend the hearing;
(b) Reasons for delay in making the set aside application;
(c) Overall interests of justice;
(d) Nature of the judgment/Orders sought to be set aside;
(e) Existence of any utility in setting aside the judgment.
It would seem to me that the prejudice to the Respondent to the application is also a factor that must be seen as being relevant.
The main argument that Ms in de Braekt addresses in this application, because it is really looking at the decision of 31 March 2017, is that she is of the opinion and belief that she was represented in these proceedings by a Mr Anthony Elliott; a barrister in private practice at the Bar at Francis Burt Chambers.
Whilst it is not detailed in any of her material, she has told me from the Bar Table that she engaged Mr Elliott for a sum of $50,000 and that he was representing her in all matters.
She has, in an affidavit that she filed on 10 December 2018, a number of emails that have passed between her and Mr Elliott. The majority of those emails have been blacked out or redacted. I will detail the emails that Ms in de Braekt believes are relevant.
An email of 5 April 2017 has, as the only part that has been not redacted, this sentence:
… Although we could rope it in under the FCCA proceeding & cause a subpoena to issue.
Unfortunately, I have no context as to what that means.
Another email on 18 September 2017, which is all redacted, except for:
…We are challenging ractist [sic] fiding [sic] in the FCCA for set aside.
One on 15 October 2017:
Dear Tony could you also advise me what is happening in the FCCA matter.
One on 24 May 2018, the only part that is un-redacted:
Dear Tony,
…Understandably, my focus is on the WASAT & FCCA legal proceedings, with me getting back on the roll.
And then, Thursday, 6 September 2018:
…Would you still be able to act for me in the FCCA matter, please?
12 September 2018:
Dear Tony,
Could you please advise if you still act for me in the FCCA matter.
And then:
Dear Tony. Lastly, again, could you advise me the status of the FCCA matter and whether you continue to act for me in that matter? If you can, I would be grateful.
And then, on 9 October 2018:
Dear Tony.
[redacted]
I have asked you a number of times about the progress of the FCCA matter.
I have not had any responses from you.
I have had great difficulty contacting you.
I have asked you whether you continue to appear for me in that matter.
I had no response from you.
[redacted]
What is your position in respect of that matter, please?
Could you please advise of the next court date.
Thank you
Regards
Megan
There are other matters interspersed with those matters that have been redacted as well. Ms in de Braekt has explained that she has been also involved in proceedings in the State Administrative Tribunal (SAT), and these matters were also being dealt with by Mr Elliott. She says that after not hearing any word from Mr Elliott, she then found out that the matter had been dismissed. She then filed the current application.
Even though there is no direct evidence before me that Mr Elliott was actually engaged, it would seem that the preponderance of evidence is that Ms in de Braekt believed that he was engaged. If he, in fact, were engaged, and as I say at the moment I do not have any evidence of that, there is no evidence from Mr Elliott himself as to why he did not turn up on that day.
That seems very odd, considering that Ms in de Braekt has known, at least since December of 2018, when she filed this application in a case, that it was her case that Mr Elliott had not turned up and that the Court would want to know why Mr Elliott did not turn up.
She has put no evidence before this Court as to why that had happened. Instead she has asked for another adjournment so that she could give me evidence of emails that she had sent which would show some form of client/barrister agreement, and some receipt that she had paid him $50,000. But unless there was going to be actual evidence from Mr Elliott, it really would not have resolved the issue that is before me.
There has been no explanation why there is not any evidence from Mr Elliott other than Mr Elliott somehow does not want to communicate with Ms in de Braekt.
But one then has to have a look at the merits of the matter in any event.
What Ms in de Braekt has said is that she now has a psychiatric report that details what her mental state was like, which would then allow the Court to come to a conclusion about where she was mentally at the time of the original proceedings. The psychiatric “report” is under the hand of a Professor Paul W Skerritt, who, as a treating psychiatrist, has given four letters. Coincidentally, they have all been addressed to the counsel, Mr Anthony Elliott, which may put a little bit more evidence to the notion that Mr Elliott had been representing her in all of her matters and not just the SAT matters.
The report says this at page 2 in the fourth and fifth paragraph:
Things again became unstuck with the sequence of events beginning about 2009. She described a dispute about delivery of some legal material by the police which she was prepared to defend. In this period it would appear that her legal practice on behalf of other people was impaired and she mentioned an uncharacteristic episode of rudeness to a magistrate and of alleged racist comments to a court attendant (which she is also prepared to defend). The task then was to defend herself which required arrangement of the several documents etc. The depression was such that her thought processes were so slow that she could not do it and the anxiety such that she could not bring herself to appear in court. Thus various appeals (about which I will not go into details) lapsed because of her non-appearance and non-submission of the appropriate documents.
I think that she was unwell throughout this period but there were exacerbations produces by the death of her grandfather who was literally a father figure to her and her house burning down in a mishap apparently caused by her grandmother. She told me of hospital visits to Royal Perth Hospital and Sir Charles Gairdner Hospital where psychiatric treatment was suggested and declined.
That seems to be the crux the evidence upon which Ms in de Braekt relies to say that, in effect, she was, to use a criminal colloquialism, unfit for trial at 2013. It would seem to me, though, this is, at best, a reconstruction by Professor Skerritt, who is a treating psychiatrist and not a forensic psychiatrist, looking back some three years after events to try and put an explanation as to some facts that have actually occurred.
It seems to me that this material is certainly insufficient for me to say that, as at September 2013, Ms in de Braekt was unfit for trial, or that she lacked the capacity to understand the nature of what it was that she was supposed to do, or to understand that she ought still fill out the paperwork and attend Court. To my mind, this report does not give her the excuse that she thinks it does.
The judgment of Judge Lucev did go through all of the matters that were before him. Ms in de Braekt says that now that she is in a better mental state; she herself can see that Mr Kanapathy, who gave evidence before the State Administrative Tribunal in January 2012, has made some inconsistent remarks in that testimony as compared to his testimony before Judge Lucev.
The problem that Ms in de Braekt has here is that those statements would have to be such as to undermine the basis for the award of compensation. The liability aspect of the matter had been settled because Ms in de Braekt had not complied with the notice to admit. It would seem to me that this is really asking the Court for a totally new application where Mr Kanapathy would be now tested upon evidence that he gave some six and then seven years ago, and that therefore the Court would be able, in 2019, to discern for itself exactly what happened back in 2009.
It seems to me that everyone’s memory was that much fresher in 2013 and 2012, and that the overall interests of justice are not achieved by a revisiting of this matter. Furthermore, Mr Kanapathy has had a judgment in his favour now for nearly six years. He has not been able to enjoy the fruits of this judgment simply because of Ms in de Braekt making, first, the set aside application in 2015 and then the current set aside application.
In my view, the overall justice of the situation demands now that this Court put an end to the matter. Notwithstanding that Ms in de Braekt has sought adjournments to fix up the missing details that I have identified in the course of argument, none of that derogates from what is the true justice of the situation.
It seems to me that the proper order that I should make is one that finalises proceedings, and that can be a matter, if Ms in de Braekt so wishes, that she can take on appeal.
I therefore dismiss the application.
There are no costs to be ordered because both parties are not legally represented.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 10 September 2019
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