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Kanapathy v In De Braekt (No 4)

Kanapathy v In De Braekt (No 4)

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FEDERAL CIRCUIT COURT OF AUSTRALIA

KANAPATHY v IN DE BRAEKT (No.4)

[2013] FCCA 1368

Catchwords:
HUMAN RIGHTS – Unlawful acts – national origin – abusive language – supervising security officer abused by legal practitioner – remedies – whether to order apology and attendance at anti-racism training course – whether futile to do so – compensation – evidence of loss or damage.

WORDS AND PHRASES – “prick”.

Legislation:

Australian Human Rights Act 1986 (Cth), ss.46PH(1), 46PO(1) and (3)
Federal Circuit Court Rules 2001 (Cth), r.15.31(2)
Racial Discrimination Act 1975 (Cth), ss.18B, 18C

Bropho v Human Rights & Equal Opportunity Commission & Anor (2004) 135 FCR 105; [2004] FCAFC 16

Campbell v Kirstenfeldt (2008) EOC 93-515; [2008] FMCA 1356

Catholic Education Office v Clarke (2004) 138 FCR 121; [2004] FCAFC 197
Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573; [2000] FCA 1531
Clarke v Catholic Education Office (2002) 202 ALR 340; [2003] FCA 1085
Clarke v Nationwide News Pty Ltd (2012) 201 FCR 389; [2012] FCA 307

Font v Paspaley Pearls Pty Ltd [2002] FMCA 142
Gama v Qantas Airways Limited (2006) 195 FLR 475; [2006] FMCA 11

Ho v Regulator Australia Pty Ltd [2004] FMCA 62
Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721

Jones v Scully (2002) 120 FCR 243; [2002] FCA 1080
Jones v Toben [2002] FCA 1150

Kanapathy v in de Braekt & Anor [2010] FMCA 1015
Kanapathy v in de Braekt & Anor (No. 2) [2011] FMCA 51

Kanapathy on behalf of Rajandran Kanapathy v in de Braekt (No. 3) [2012] FMCA 1213
Lee v Smith & Ors (No.2) [2007] FMCA 1092
Legal Professional Complaints Committee -v- in de Braekt [2013] WASC 124
Oorloff & Anor v Lee& Ors [2004] FMCA 893
Perry v Howard [2005] FCA 1702

Phillis v Mandic [2005] FMCA 330

Qantas Airways Limited v Gama (2008) 167 FCR 537; [2008] FCAFC 69
Re East; Ex parte Nguyen (1998) 196 CLR 354; [1998] HCA 73
Stokes & Ors v Royal Flying Doctor Service & Anor (2003) 176 FLR 66; [2003] FMCA 164
Trapman v Sydney Water Corporation & Ors [2011] FMCA 398

Travers v New South Wales [2000] FCA 1565

Oxford English Dictionary online,
The Macquarie Dictionary (3^rd Edn) (Macquarie University: Macquarie Library Pty Ltd, 2001)
Urban Dictionary,

Applicant:

RAJANDRAN KANAPATHY

Respondent:

MEGAN IN DE BRAEKT

File Number:

PEG 192 of 2010

Judgment of:

Judge Lucev

Hearing date:

17 September 2013

Date of Last Submission:

17 September 2013

Delivered at:

Perth

Delivered on:

25 September 2013

REPRESENTATION

Counsel for the Applicant:

Mr S Millman

Solicitors for the Applicant:

Slater & Gordon Lawyers

For the Respondent:

No appearance

DECLARATION AND ORDERS

The Court declares that on 16 January 2009 the respondent engaged in conduct rendered unlawful by s.18C of the Racial Discrimination Act 1975 (Cth) by her offensive behaviour toward the applicant because of his national origin, specifically by:
(a)telling the applicant that she knew he was from…

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.

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Details

Case: [2013] FCCA 1368
Decision Date: 25 September 2013

CaseChat Overview and Summary

In *Kanapathy v In De Braekt (No 4)*, the applicant, Mr. Kanapathy, a supervising security officer, brought proceedings against the respondent, a legal practitioner, alleging that he had been subjected to abusive language based on his national origin. The matter came before Judge Lucev in the Magistrates Court of Western Australia.

The court was required to determine whether the respondent's conduct constituted an unlawful act under the relevant human rights legislation, specifically concerning discrimination based on national origin. The court also had to consider what remedies, if any, were appropriate, including whether to order an apology and attendance at an anti-racism training course, and whether such orders would be futile. Finally, the court needed to assess whether the applicant had provided sufficient evidence of loss or damage to warrant compensation.

Judge Lucev found that the respondent's use of the word "prick" towards Mr. Kanapathy, in the context of a dispute over Mr. Kanapathy's national origin, amounted to abusive language and an unlawful act. The court reasoned that while the term itself might be considered mild in some contexts, its use in this instance, coupled with the reference to national origin, rendered it discriminatory and offensive. The court concluded that ordering an apology and attendance at anti-racism training would not be futile, as it served a public interest in denouncing such conduct and promoting respectful interactions. However, the court found that the applicant had failed to adduce sufficient evidence to establish any quantifiable loss or damage, and therefore, no compensation was awarded.

Orders