Kanapathy v in de Braekt & Anor - [2010] FMCA 1015

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KANAPATHY v IN DE BRAEKT & ANOR

[2010] FMCA 1015

HUMAN RIGHTS – Unlawful discrimination on the basis of race.

PRACTICE AND PROCEDURE – Application for substituted service –difficulty in serving first respondent – likelihood of the means of substituted service bringing the proceedings to the attention of the first respondent.

Federal Court Rules (Cth), O 7 r.9
Federal Magistrates Act 1999 (Cth), s.13(3)(a)
Federal Magistrates Court Rules 2001 (Cth), rr.6.06(1), 6.14, 6.15

Ricegrowers Co Operative Ltd v ABC Containerline NV (1996) 138 ALR 480

Applicant:

NIRMALA KANAPATHY ON BEHALF OF RAJANDRAN KANAPATHY

First Respondent:

MEGAN IN DE BRAEKT

Second Respondent:

G4S CUSTODIAL SERVICES PTY LTD

File Number:

PEG 192 of 2010

Judgment of:

Lucev FM

Hearing date:

13 December 2010

Date of Last Submission:

13 December 2010

Delivered at:

Perth

Delivered on:

22 December 2010

REPRESENTATION

Counsel for the Applicant:

Mr S. Millman

Solicitors for the Applicant:

Slater & Gordon Lawyers

The First Respondent:

No appearance

Counsel for the Second Respondent:

Ms A. Beaumont

Solicitors for the Second Respondent:

HLS Legal

ORDERS

Service by way of substituted service be ordered to be effected on the first respondent in these proceedings by:
(a)facsimile of all relevant Court documents filed by the applicant and copies of all Orders made by the Court, including today’s Orders, to facsimile number 9361 8558, marked to the attention of the first respondent; and
(b)by email with respect to the same documents as in sub-paragraph (a) above, addressed to the first respondent at: megan.indebraekt@iinet.net.au,
by 24 December 2010.

An affidavit of service with respect to substituted service by the applicant on the first respondent be filed by 14 January 2011.
The matter otherwise be adjourned to 9:45am on 31 January 2011.
The costs with respect to substituted service be reserved to the adjourned directions hearing on 31 January 2011.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 192 of 2010

NIRMALA KANAPATHY ON BEHALF OF RAJANDRAN KANAPATHY

Applicant

And

MEGAN IN DE BRAEKT

First Respondent

G4S CUSTODIAL SERVICES PTY LTD

Second Respondent

REASONS FOR JUDGMENT

(Delivered in Chambers under s.13(3)(a) of the Federal Magistrates Act 1999 (Cth))

Introduction

At a directions hearing on 13 December 2010 an oral application was made by Counsel for Mrs Kanapathy for an order for substituted service on the first respondent, Ms in de Braekt.
An order for substituted service on Ms in de Braekt was made by the Court on 13 December 2010, as asked. The Court then indicated that Reasons for Judgment would be provided at a later date. These are those Reasons for Judgment.

History of the proceedings

The substantive application in these proceedings was filed by Mrs Kanapathy, on behalf of her husband, Mr Kanapathy, on 20 October 2010.
The matter was listed for a first directions hearing on 12 November 2010, at which time Mrs Kanapathy was self-represented. At this hearing, orders were made allowing Mrs Kanapathy to file and serve an affidavit outlining her attempts to serve Ms in de…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Kanapathy v in de Braekt & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FMCA 1015
Decision Date: 22 December 2010

CaseChat Overview and Summary

The matter in the Supreme Court of Victoria between Kanapathy and de Braekt involved a dispute where the applicant alleged unlawful discrimination on the basis of race. The applicant sought an order for substituted service of the proceedings on the first respondent, who was difficult to locate. The legal issues that the court had to address included whether the proposed method of substituted service would effectively bring the proceedings to the attention of the first respondent, considering the difficulty in locating them, and whether such service complied with the rules and principles of natural justice.

The court considered the evidence presented and the difficulties in locating the first respondent. It was noted that the first respondent had provided an email address and a facsimile number, and the proposed substituted service involved sending documents to these contact details. The court concluded that given the difficulty in locating the first respondent, the proposed means of substituted service were appropriate and likely to bring the proceedings to their attention. The court found that this method complied with the principles of natural justice and granted the application for substituted service.

Accordingly, the court ordered that service be effected on the first respondent by facsimile and email by a specified date, with an affidavit of service to be filed by a later date. The matter was adjourned to a later date, and the costs associated with the substituted service were reserved for the adjourned directions hearing. The court's decision ensured that the applicant's right to access the court was not unduly hindered by the difficulty in locating the first respondent, while also protecting the first respondent's right to be properly served and to respond to the proceedings.

Orders

Orders of the court

Service by way of substituted service be ordered to be effected on the first respondent in these proceedings by:

(a) facsimile of all relevant Court documents filed by the applicant and copies of all Orders made by the Court, including today’s Orders, to facsimile number 9361 8558, marked to the attention of the first respondent; and

(b) by email with respect to the same documents as in sub-paragraph (a) above, addressed to the first respondent at: megan.indebraekt@iinet.net.au,

by 24 December 2010.

An affidavit of service with respect to substituted service by the applicant on the first respondent be filed by 14 January 2011.

The matter otherwise be adjourned to 9:45am on 31 January 2011.

The costs with respect to substituted service be reserved to the adjourned directions hearing on 31 January 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.