Kanapathy v In De Braekt & Anor (No. 2)

[2011] FMCA 51

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KANAPATHY v IN DE BRAEKT & ANOR (No.2) [2011] FMCA 51

HUMAN RIGHTS – Unlawful discrimination on the basis of race.

PRACTICE AND PROCEDURE – Service – substituted service – proper applicant and costs.

COURTS – Failure to comply with Court orders.

Federal Magistrates Act 1999 (Cth), ss.79(2) and (3)
Federal Magistrates Court Rules 2001 (Cth), r.21.10, Schedule 1 Part 1

Breakthrough Australia Pty Ltd v Halpin [2010] FMCA 519
Griffiths v Westbury Holdings Pty Ltd [2009] FMCA 1130
Hinchliffe v University of Sydney (No.2) [2004] FMCA 640
Joshua Brook Pty Ltd v Outdoor Centre Holdings Pty Ltd & Anor (No.2) [2010] FMCA 446
Kanapathy v in de Braekt & Anor [2010] FMCA 1015
Latoudis v Casey (1990) 170 CLR 534
Naroth v Innovative Hair Loss Solutions Pty Ltd & Ors [2010] FMCA 908
Pierson’s Pro-Health Pty Ltd v Silvex Nominees (No.3) [2010] FMCA 250
Willis v State of Western Australia (No.2) [2009] WASCA 2005

Justice Murphy, “Notice to Legal Practitioners – Communicating with Judges – Matters in Murphy J’s Docket” (Family Court of Australia, Chambers of Hon Justice Murphy, July 2009)
Justice PW Young, “Don’t ring the judge” (2008) 82 ALJ 73

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: 31 January 2011

Date of Last Submission: 31 January 2011

Delivered at: Perth

Delivered on: 4 February 2011

REPRESENTATION

Counsel for the Applicant: Ms Siljanoska

Solicitors for the Applicant: Slater & Gordon Lawyers

For the first Respondent: No appearance

Counsel for the second Respondent: Ms Beaumont

Solicitors for the second Respondent: HLS Legal

ORDERS

1. The time for compliance with Order 2 of the Court’s Orders of 13 December 2010 be extended to today.

2. All future service of documents in these proceedings upon the first respondent be effected by:

   (a)facsimile, to facsimile number 9361 8558, marked to the attention of the first respondent; and

   (b)email, addressed to the first respondent at [email protected]

3. With respect to the question of the proper applicant raised by the second respondent’s outline of submissions filed in Court on 13 December 2010:

   (a)the applicant and first respondent file and serve an outline of submissions with respect to the application in a case for dismissal of the application on the proper applicant ground by 21 February 2011;

   (b)the second respondent file and serve an outline of submissions in reply by 28 February 2011; and

   (c)the application in a case for dismissal of the application on the proper applicant ground be listed for hearing at 10:15am on 10 March 2011.

4. Any application in a case by the applicant to amend the name of the applicant be filed and served by 7 February 2011.

5. With respect to any application in a case by the applicant to amend the name of the applicant:

   (a)the applicant file and serve an outline of submissions with respect to the application for amendment of the applicant’s name by 21 February 2011;

   (b)the first and second respondents file and serve an outline of submissions with respect to the application in a case for amendment of the applicant’s name by 28 February 2010;

   (c)the applicant file and serve any outline of submissions in reply by 8 March 2011; and

   (d)any application in a case to amend the name of the applicant be listed for hearing at 10.15am on 10 March 2011.

6. All issues as to costs be reserved to 10 March 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

(Published in Chambers pursuant to s.13(3)(a) of the Federal Magistrates Act 1999 (Cth))

Introduction

1. On 31 January 2011 this matter came before the Court, and the Court made the following orders:

   1. The time for compliance with Order 2 of the Court’s Orders of 13 December 2010 be extended to today.

   2.All future service of documents in these proceedings upon the first respondent be effected by:

   (a)facsimile, to facsimile number 9361 8558, marked to the attention of the first respondent; and

   (b)email, addressed to the first respondent at [email protected]

   3.With respect to the question of the proper applicant raised by the second respondent’s outline of submissions filed in Court on 13 December 2010:

   (a)the applicant and first respondent file and serve an outline of submissions with respect to the application in a case for dismissal of the application on the proper applicant ground by 21 February 2011;

   (b)the second respondent file and serve an outline of submissions in reply by 28 February 2011; and

   (c)the application in a case for dismissal of the application on the proper applicant ground be listed for hearing at 10:15am on 10 March 2011.

   4.Any application in a case by the applicant to amend the name of the applicant be filed and served by 7 February 2011.

   5.With respect to any application in a case by the applicant to amend the name of the applicant:

   (a)the applicant file and serve an outline of submissions with respect to the application for amendment of the applicant’s name by 21 February 2011;

   (b)the first and second respondents file and serve an outline of submissions with respect to the application in a case for amendment of the applicant’s name by 28 February 2010;

   (c)the applicant file and serve any outline of submissions in reply by 8 March 2011; and

   (d)any application in a case to amend the name of the applicant be listed for hearing at 10.15am on 10 March 2011.

   6.All issues as to costs be reserved to 10 March 2011.

2. When the above orders were made the Court indicated that it would deliver Reasons for Judgment later in the week. These are those Reasons for Judgment.

Application

1. 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.

2. On 13 December 2010 the Court made orders in the following terms:

   1.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: [email protected],

   by 24 December 2010.

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

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

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

3. The applicant has not complied with Order 2 which required filing of an affidavit by 14 January 2011. The failure to comply with Order 2 of the Court’s Order of 13 December 2010 is the third failure in the space of three directions hearings in this matter by the applicant to comply with an order of the Court.[1] An affidavit of service with respect to substituted service by the applicant on the first respondent was sought to be tendered in Court today, but the Court indicated it would extend time for filing to today, and the affidavit of service could be filed in the Registry.

   [1] The Court’s Orders of 12 and 29 November 2010 with respect to the filing of affidavits by the applicant were not complied with by the applicant.

4. This Court has on a number of occasions cited the observations of Buss JA in Willis v State of Western Australia (No.2)[2] that:

   “… apologies are a poor and unacceptable substitute for performance. If a solicitor becomes aware that he or she will be unable, for any reason, to comply with an order of the court, his or her duty is to inform the court and the other party or parties immediately of this inability, and to apply for new or varied orders by consent or otherwise. It is unprofessional to ignore or otherwise fail to comply with orders of the court and leave it to the court or the other party or parties to take remedial or enforcement action.”[3]

   [2] [2009] WASCA 2005 (“Willis”).

   [3] Willis at para.12 per Buss JA, cited by this Court in Naroth v Innovative Hair Loss Solutions Pty Ltd & Ors [2010] FMCA 908 at para.25 per Lucev FM; Breakthrough Australia Pty Ltd v Halpin [2010] FMCA 519 at para.2 per Lucev FM; Joshua Brook Pty Ltd v Outdoor Centre Holdings Pty Ltd & Anor (No. 2) [2010] FMCA 446 at para.1 per Lucev FM; Griffiths v Westbury Holdings Pty Ltd [2009] FMCA 1130 at para.12 per Lucev FM.

5. Courts make orders expecting that parties will comply with them. Orders are also made for a purpose, in this instance they would have allowed the Court to read the affidavit which ought to have been filed beforehand so as to understand developments, prepare for the directions hearing, and assist in determining the future course of the proceedings. It is inconvenient, to say the least, to continually have a party seek to tender affidavits, which ought to have been filed previously, on the day of a hearing or directions hearing, and to simply expect the Court to absorb the information on the spot and determine the future directions of the proceedings without necessarily having the benefit of the time which it should have had to do so. The applicant ought note the Court’s comments, as future non-compliance with the Court’s orders may not be met with further indulgence.

6. Prior to proceedings commencing today the Court was advised that the first respondent had sent an email to the Court in the following terms:

   Ms Dinon,

   
   
   

   Reference is made to the abovementioned matter, before the Federal Magistrates' Court on Monday 31st January 2011.

   
   
   

   Please be advised that I have NOT been served, either by way of email or facsimile, with the documents required to be served on me by the Applicant, as per the Orders of His Honour Federal Magistrate Lucev, issued on 13^th December 2010.

   
   
   

   Any claim that may be made to the contrary (ie that I have been so served) is entirely false & incorrect.

   
   
   

   Therefore as I have not been served with the respective documents, I am still not a party to the proceedings & will not be attending Court on Monday 31st January 2011.

   
   
   

   The proceedings & the manner in which they are being conducted (or more accurately, failing to be conducted) is scandalous & an abuse of the Court's processes.

   
   
   

   The Applicant's failure to adhere to His Honour Federal Magistrate Lucev's Orders of 13th December 2010, (for which there could not possibly be any reasonable or satisfactory explanation) provides further support for my strong view that the proceedings were commenced for an ulterior & improper purpose.

   
   
   

   The proceedings should accordingly be dismissed for want of prosecution.

   
   
   

   Lastly, although I do not have a copy of the Affidavit apparently sworn by Mr Kanapathy in support of an application for substituted service (although I did request a copy form the Registry, but did not receive such copy), if the references made by His Honour Federal Magistrate Lucev in his honour's reasons for decision are correct (& I have no reason to believe they are not correct), the content of that Affidavit is false & can very easily be proven as such.

   
   
   

   Please could you bring this email to the attention of His Honour Federal Magistrate Lucev, prior to the next appearance in this matter on 31^st January 2011.

   
   
   

   Lastly, I was most alarmed to learn by reading His Honour Federal Magistrate Lucev's reasons for decision of 13th December 2010, that Mr Kanapathy & his wife apparently visited my office.  I do NOT want Mr Kanapathy or his wife, anywhere near me or my office.  He has made scandalous & wicked accusations against me, which he well knows to be a complete fabrication.  Neither Mr Kanapathy nor his wife have permission to attend my office or enter it, or attempt to do so, & if they ever attempt to do so again, I will immediately call the Police & take out a misconduct restraining order against them both. How outrageous that they both dare attend my office.

   
   
   

   Thank you very much for your anticipated assistance.

   
   
   

   Yours sincerely,

   
   
   

   Megan in de Braekt

   
   

   Barrister

   
   336 Albany Highway
   Victoria

   Park 

   
   Western Australia

   6100

   
   Mobile

   :       041 359 2120

   
   

   Telephone:  [phone]

   
   

   Facsimile:  [phone]

   
   

   Email:        [email protected]

   The email was brought to the attention of the Court as presently constituted, and read, in its terms, to the applicant and second respondent by the Court in Court.[4] It suffices to observe that:

   a)the letter is neither an application nor evidence;

   b)the means of substituted service is the subject of Order 1 of the Court’s Orders of 13 December 2010;[5] and

   c)whether substituted service has been effected in accordance with the Substituted Service Order is a matter of evidence and determination by the Court if and when that becomes necessary: which is not now.

   [4] As to the appropriateness of unsolicited communication with a judicial officer or a judicial officer’s chambers see, for example, Justice PW Young, “Don’t ring the judge” (2008) 82 ALJ 73; Justice Murphy, “Notice to Legal Practitioners - Communicating with Judges – Matters in Murphy J’s Docket” (Family Court of Australia, Chambers of Hon Justice Murphy, July 2009).

   [5] “Substituted Service Order”.

7. The first respondent has not appeared at all before this Court in these proceedings, notwithstanding that the evidence indicates some awareness of the proceedings and Court dates.[6]

   [6] See Kanapathy v in de Braekt & Anor [2010] FMCA 1015 at paras.12-17 per Lucev FM (“Kanapathy (No. 1)”).

8. Given:

   a)the necessity for the making of orders for substituted service against a lawyer, for the reasons set out in Kanapathy (No.1); and

   b)the non-appearance of the first respondent,

   the Court considers it appropriate that there be an order that all future service of documents in these proceedings upon the first respondent be effected by facsimile and by email to the facsimile number and email address referred to in Order No. 1 of the Court’s Orders of 13 December 2010. Such an order does not preclude the first respondent from arguing that the Substituted Service Order has not been complied with, although that may require the making of an application in a case and affidavit evidence in proper form.

9. The Court’s Orders of 13 December 2010 provided that the matter of costs with respect to substituted service were to be reserved to the 31 January 2011 directions hearing.

10. The Federal Magistrates Court has jurisdiction and discretion to award costs in all proceedings before the Court under s.79(2) and (3) of the Federal Magistrates Act 1999 (Cth).[7] The general rule is that, subject to other considerations in the exercise of the Court’s discretion, the successful party should recover its costs.[8] That general rule applies in human rights proceedings in this Court. That is, as to costs, human rights proceedings are in no different a position to the ordinary run of proceedings in this Court.[9] So, unless the Court otherwise orders, a party is entitled to the costs in a proceeding in accordance with Part 1 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth),[10] and disbursements properly incurred.[11] However, because there is an application in a case by the second respondent related to the question of who the proper applicant is, the Court considers it prudent to defer the making of any costs orders until that issue has been determined.

    [7] “FM Act”.

    [8] Latoudis v Casey (1990) 170 CLR 534 at 566 and 567 per McHugh J.

    [9] Hinchliffe v University of Sydney (No. 2) [2004] FMCA 640 at para.10 per Driver FM.

    [10] “FMC Rules”.

    [11] FMC Rules, r.21.10; Pierson’s Pro-Health Pty Ltd v Silvex Nominees (No. 3) [2010] FMCA 250 at paras.41(a) and 43 per Lucev FM.

11. The question of the proper applicant is raised by the second respondent’s outline of submissions filed in Court on 13 December 2010, which the Court, in its further orders of 13 December 2010, ordered be treated as an application in a case for dismissal of the application on the grounds set out in that outline of submissions. The hearing of that application in a case will be on 10 March 2011. In the circumstances, as the applicant seeks to amend the name of the applicant, the Court considers it appropriate that the applicant be given an opportunity to file an application in a case to do so, and for that application in a case, if filed, to be heard together with the second respondent’s application for dismissal on the basis that the present applicant is not the proper applicant in these proceedings.

12. It follows that the costs of 13 December 2010 in respect of the issue of proper applicant, which were reserved to the directions hearing on 31 January 2011, ought also to be further reserved, to the hearing of the application for dismissal by the second respondent on 10 March 2011.

13. Also reserved to 10 March 2011 is an application for costs made by the second respondent against the applicant arising from the applicant’s failure to comply with the Substituted Service Order. The parties might confer to see if that issue can be resolved between them prior to 10 March 2011.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date:  4 February 2011