Kanapathy v In De Braekt (No 4)
[2013] FCCA 1368
•25 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KANAPATHY v IN DE BRAEKT (No.4) | [2013] FCCA 1368 |
| Catchwords: WORDS AND PHRASES – “prick”. |
| Legislation: Australian Human Rights Act 1986 (Cth), ss.46PH(1), 46PO(1) and (3) |
| 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 Font v Paspaley Pearls Pty Ltd [2002] FMCA 142 Ho v Regulator Australia Pty Ltd [2004] FMCA 62 Jones v Scully (2002) 120 FCR 243; [2002] FCA 1080 Kanapathy v in de Braekt & Anor [2010] FMCA 1015 Kanapathy on behalf of Rajandran Kanapathy v in de Braekt (No. 3) [2012] FMCA 1213 Phillis v Mandic [2005] FMCA 330 Qantas Airways Limited v Gama (2008) 167 FCR 537; [2008] FCAFC 69 Travers v New South Wales [2000] FCA 1565 Oxford English Dictionary online, |
| 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 Singapore, that he ought to go back to Singapore, and that people like him were not needed here, and by then describing him as “you prick”;
(b)calling the applicant a “Singaporean prick” on one occasion; and
(c)in the context of the above offensive behaviour, calling the applicant “a prick” on approximately six further occasions, and calling him a “short prick” on one occasion.
The Court orders that:
(a)the applicant be awarded compensation for loss and damage in the sum of $12,500; and
(b)the respondent is to pay the compensation to the applicant by 23 October 2013.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 192 of 2010
| RAJANDRAN KANAPTHY |
Applicant
And
| MEGAN IN DE BRAEKT |
Respondent
REASONS FOR JUDGMENT
Introduction – a “Singaporean prick”
In this case it is alleged that on 16 January 2009 the respondent, Ms in de Braekt, then a legal practitioner, abused the applicant, Mr Kanapathy, by calling him a “Singaporean prick”, a “prick” and a “short prick”, and by telling Mr Kanapathy to go back to where he had come from, namely Singapore, when Mr Kanapathy, in his capacity as supervising security officer at the Central Law Courts building in Perth, requested that Ms in de Braekt undergo a security search upon entry to the Central Law Courts.
The application therefore alleges unlawful acts in contravention of s.18C of the Racial Discrimination Act 1975 (Cth)[1] on the basis of Mr Kanapathy’s national origin. Underlying the application is a complaint to the Australian Human Rights Commission,[2] brought by Mrs Kanapathy on behalf of Mr Kanapathy, alleging the same contravention, but which was terminated under s.46PO(1) of the Australian Human Rights Act 1986 (Cth)[3] by the President of the AHRC, on the basis that it was not able to be resolved in conciliation proceedings before the AHRC.
[1] “RD Act”, s.18C.
[2] “AHRC Complaint” and “AHRC” respectively.
[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.
AHRC Complaint
The AHRC Complaint against Ms in de Braekt was made by Mrs Kanapathy sometime after 16 January 2009 and before Ms in de Braekt’s response on 23 August 2009. Although the AHRC Complaint was subsequently amended to include Mr Kanapathy’s employer, G4S, it is only the conduct of Ms in de Braekt which is presently in question in this application. The AHRC Complaint alleged discrimination on the basis of race, and in response to the AHRC Complaint form question “What happened?” reference was made to attached reports “detailing the dispicable (sic) act.”[4] It suffices to refer to one of those reports, being a report prepared by Mr Kanapathy, on 16 January 2009, being the date of the events in question, and entitled “Officers Report”.[5] The substance of the Officers Report is as follows:
[4] AHRC Complaint, page 3.
[5] The Officers Report was subsequently tendered in evidence at hearing and is Exhibit 1 in the proceedings.
On this date: 16/01/2009 Day: Friday at about: 1100 Hours
I Officer: _Rajandran Kanapathy Permit Number: CS9-045 was on duty at: Central Law Courts in the area of: Primary Security Check Point when the following Incident took place:
At about 1100hrs Ms Megan In De Bracekt (Lawyer) came by thru Level 1 at the PSCP bypassing officers to have a quick look at the notice board. Later she tries to walk away without being searched. Officer Morgan approached her to be searched but she refused. As I (Security Supervisor CLC) was at the vicinity doing my checks and rounds observe what was happening. Ms Megan has a history of refusing searches and abusing Officers. I approached her and asked her politely to comply with the searches.
She refused to be searched and told me angrily to check the policy on searching.
I advised her to comply with the searches or she has to leave the building. She became very defensive and started attacking and abusing me verbally. She still refuses to go thru the search and demanded to speak to the Operation Manager. I told her that I am the Supervisor in Charge for CLC. She insisted on talking to the Operation Manager. And again I told her either you comply with the searches or you can leave the building.
Then she took a personal attack on me asking me “are you from Singapore you don’t belong here you don’t know anything why don’t you go back to Singapore you idiot you prick”. I told her “to Mind her words and watch what you are saying you should behave like a Lawyer”. She again abuse me by saying who give the short prick like you idiot to be in charge”. “You got short man syndrome”. I again warn her to mind her words, she kept on going “you prick” “you prick” “you idiot” And eventually she went to be searched. Officer Kalyani and myself asked her to open her bag she refuse and said “you can go thru you prick you idiot and carried on”. After we search her bag we allowed her into the building, she kept on abusing me by calling me a prick repeatedly while she walked away.
This is a personal attack of my origin “Singapore” where I came from and also an attack of my appearance which is disgraceful. This show of very inappropriate behaviour and misconduct was displayed in the presents of my staff and audience of the member of the public. Which is clearly a very discriminative behaviour by her. It is also very disrespectful, disgraceful and dishonourable to my position and uniform. I am very offended, humiliated and hurt by her discriminative and disgraceful verbal abuse especially because she is a lawyer and she should know better about discrimination which is racial to me and verbally abusing an officer on duty. I would like to pursue this further and asked Management to take appropriate and stern action towards Ms Megan.[6]
[6] Exhibit 1. Transcribed without amendment from original copy.
The Officers Report was prepared and signed by Mr Kanapathy within 30 to 40 minutes of the incident occurring.
On 23 August 2010 the AHRC terminated the AHRC Complaint under s.46PH(1)(i) of the AHRC Act on the ground that there was no reasonable prospect of the matter being settled by conciliation. The Reasons for Decision of the Delegate of the President in relation to the termination relevantly say as follows:
Dear Mrs Kanapathy
Your complaint on behalf of Mr Kanapathy against Ms Megan in de Braekt and G4S Custodial Services Pty Ltd (G4S)
I am writing to advise you of my decision in regard to your complaint on behalf of Mr Kanapathy which alleges racial discrimination in employment and racial hatred against Ms in de Braekt and G4S under the Racial Discrimination Act 1975 (RDA).
The complaint
The original complaint named Ms in de Braekt as the respondent. Mr Kanapathy is employed by G4S as a security officer and works at the Central Law Courts. Mr Kanapathy claims that on 16 January 2009, Ms in de Braekt attended the courts and when he approached to search her, she made comments to him including “are you from Singapore – you don’t belong here – you don’t know anything – why don’t you back to Singapore you idiot – you prick”. Mr Kanapathy alleges that this constitutes racial hatred.
…
Responses to the complaint
…
Ms in de Braekt claims that at no time did she see or communicate with Mr Kanapathy on 16 January 2009 and denies his claims against her.
…
The complaint has been considered under sections 9, 15, 18A, 18C and 18D of the RDA.
My decision
Under the AHRCA, the President may decide to terminate a complaint if she is satisfied that there is no reasonable prospect of the matter being settled by conciliation.
On 2 June 2010, Ms in de Braekt advised the Commission that she was not willing to participate in a conciliation conference to attempt to resolve the complaint. … Having carefully considered the information before me, I have decided to terminated (sic) the complaint under section 46PH(1)(i) of the AHRCA as I am satisfied that there is no reasonable prospect of the matter being settled by conciliation.
…
Yours sincerely
Jodie Ball
Delegate of the President[7]
[7] See fn.3 above.
Proceedings thus far in this Court
The application to this Court was filed in October 2010, and thus far the proceedings have been bitterly contested by Ms in de Braekt.
Initially there were disputes concerning service on Ms in de Braekt. Those disputes necessitated the Court making orders for substituted service.[8] Subsequently, there were further disputes concerning issues of service, and the Court had to make further substituted service orders.[9] Ms in de Braekt did not appear at either of the hearings concerning the service issues, but did send unsolicited communication directly to the Court.[10]
[8] See Kanapathy v in de Braekt & Anor [2010] FMCA 1015 (“Kanapathy (No. 1)”).
[9] See Kanapathy v in de Braekt & Anor (No. 2) [2011] FMCA 51 (“Kanapathy (No. 2)”).
[10] See Kanapathy (No. 2) at paras.8-10 per Lucev FM.
Because the application was originally filed by Mr Kanapathy’s wife on behalf of Mr Kanapathy, issues arose as to the proper applicant in the proceedings. The issue of the proper applicant was listed for hearing, and it was ordered that if Ms in de Braekt did not appear at the hearing, then there was to be liberty to apply for summary judgment. Two days before the initially scheduled hearing, and more than a week late, Ms in de Braekt filed an outline of submissions in relation to the issue of the proper applicant (which was the subject of an application in a case by Mr Kanapathy to change or amend the name of the applicant) opposing the name change. Ms in de Braekt also sought, without proper application or leave, to have the application summarily dismissed. Ms in de Braekt subsequently filed an application in a case seeking summary dismissal of the proceedings, and an application in a case seeking an addendum to the Reasons for Judgment in Kanapathy (No. 1). These matters were determined in Kanapathy v in de Braekt (No. 3)[11] in which the Court ordered that:
a)Mr Kanapathy’s application in a case for a change of name of the applicant be granted; and
b)Ms in de Braekt’s application in a case for summary dismissal of the application, and for an addendum to the Reasons for Decision in Kanapathy (No. 1), be dismissed.
[11] [2012] FMCA 1213 (“Kanapathy (No. 3)”).
On 26 March 2013 there was a mediation at which Ms in de Braekt did not appear.
At a directions hearing on 15 April 2013, the matter was “adjourned for final hearing with an estimated time of one day, on a date to be advised not before 20 May 2013.”[12] The matter was set down for final hearing on 17 September 2013, by way of a notice of listing sent to the parties at their addresses for service (and in Ms in de Braekt’s case by post and by email) on 20 June 2013.
[12] Order, Judge Riley, 15 April 2013.
On 24 July 2013 Mr Kanapathy filed a Notice to Admit Facts addressed to Ms in de Braekt, in the following terms:
Take notice that you are required by the above named to admit for the purpose of these proceedings only –
See Schedule A
You are required to admit for the purpose of these proceedings only the authenticity of the following documents
1.Legal Professional Complaints Committee v Megan Maree in de Braekt [2012] WASAT 58
2.Legal Professional Complaints Committee v Megan Maree in de Braekt [2012] WASAT 58(s)
3.Legal Professional Complaints Committee v Megan Maree in de Braekt [2012] WASAT 55
4.Legal Professional Complaints Committee v Megan Maree in de Braekt [2011] WASAT 1
5.Legal Professional Complaints Committee -v- in de Braekt [2013] WASC 124.
Schedule A to the Notice to Admit Facts is in the following terms:
Schedule A
Take notice that you are required by the above named to admit for the purpose of these proceedings only -
1.That you are Ms Megan Maree in de Braekt.
2.That you were the Respondent in Legal Professional Complaints Committee -v- Megan Maree in de Braekt [2012] WASAT 58 heard on 15, 16 and 17 November 2011 and 20, 21, 22 and 23 February 2012 and delivered on 27 March 2012.
3.That you were the Respondent in Legal Professional Complaints Committee -v- Megan Maree in de Braekt [2012] WASAT 58(s) that was determined on the documents and delivered on 27 March 2012.
4.That you visited the Central Law Courts building on or about 16 January 2009 in the course of carrying out your legal practice.
5.That Mr Rajandran Kanapathy was a security supervisor at the Central Law Courts Building on or about 16 January 2009.
6.That you behaved in a discourteous and abusive manner to Mr Kanapathy on or about 16 January 2009 by:
a. saying words to the effect, ‘I know you’re from Singapore, go back to your country, we don’t need people like you here, you prick’;
b. calling Mr Kanapathy a ‘Singaporean prick’ on one occasion;
c. calling Mr Kanapathy ‘a prick’ on approximately six occasions;
d. making a comment to the effect that Mr Kanapathy has ‘short man’s syndrome’ on two occasions; and
e. calling Mr Kanapathy a ‘short prick’ on one occasion.
7.That Mr Kanapathy prepared an incident report within 30-40 minutes of the event that occurred on or about 16 January 2009 and tendered it as evidence in the above mentioned proceedings.
8.That the Tribunal found that your extraordinary display of discourtesy and abusive conduct to a member of the court security staff compromised not only the good standing of the legal profession, but also the important relationship between the legal profession and the security staff in the courts and tribunals. That your conduct therefore constituted professional misconduct.
9.That you were previously a practicing lawyer but you have now had your name removed from the Roll of Legal Practitioners.
The Notice to Admit Facts contains the following paragraph as to the effect of the Notice to Admit Facts:
AND FURTHER TAKE NOTICE if you do not, within 14 days after service of this notice upon you, serve a notice on the said name of person delivering notice in “A” above disputing any facts (and authenticity of any document) above specified, that fact, (and authenticity of that document) shall, for the purpose of these proceedings, be admitted by you.
The effect of the failure to serve a notice disputing a fact or the authenticity of a document, as set out in the Notice to Admit Facts is consistent with r.15.31(2) of the Federal Circuit Court Rules 2001 (Cth), which provides as follows:
(2) If the other party does not, within 14 days, serve a notice on the first party disputing the fact or the authenticity of the document, the other party is taken to admit, for the proceeding only, the fact or the authenticity of the document.
Ms in de Braekt has not responded to the Notice to Admit Facts.
In the circumstances, Ms in de Braekt is taken to have admitted the facts set out in Schedule A of the Notice to Admit Facts, and the authenticity of the documents referred to in Part C of the Notice to Admit Facts, as set out above.[13]
[13] See paras.11 and 12 above.
Ms in de Braekt did not appear at the final hearing. At the final hearing Mr Kanapathy gave oral evidence, which particularly went to the question of the effect of the alleged conduct of Ms in de Braekt upon him, both at the time that it occurred and subsequently. That evidence is set out in greater detail below.[14]
[14] See para.28 below.
Other matters relevant to the proceedings
As will be evident from the content of the Notice to Admit Facts Ms in de Braekt’s conduct has been the subject of controversy before the Legal Professional Complaints Committee.[15] That controversy culminated in the LPCC moving the Supreme Court of Western Australia for an order that Ms in de Braekt be struck off the Roll of Legal Practitioners in the State of Western Australia.[16] Relevant to the proceedings presently before this Court the Supreme Court observed that one of the issues dealt with by the State Administrative Tribunal[17] in findings concerning Ms in de Braekt’s conduct as a practitioner was as follows:
[15] “LPCC”.
[16] Legal Professional Complaints Committee -v- in de Braekt [2013] WASC 124 at para.1 per Martin CJ, McKechnie and Hall JJ (“in de Braekt – Supreme Court”).
[17] “SAT”.
13 The final incident dealt with by the Tribunal was an exchange between the practitioner and Mr Rajandran Kanapathy, a court security supervisor, on 16 January 2009 at the Central Law Courts (CLC). The practitioner had previously expressed her dissatisfaction with the change in security policy at the CLC, which now required practitioners to submit to a security screening before entering the secure area. On the day in question, she entered the secure area of the CLC without going through the screening process, and proceeded to the notice board listing the daily list of matters. Mr Kanapathy, noticing this, instructed his co-worker, who was attending the security checkpoint, to approach the practitioner and ask that she comply with the security procedure. After his co-worker did as instructed, and requested that the practitioner pass through the security checkpoint, the practitioner indicated she did not wish to do so. Mr Kanapathy then approached the practitioner and politely asked her to comply with the standard security procedure. The practitioner refused to do so, citing a letter she had written to the Chief Magistrate protesting about the procedure. Mr Kanapathy then told the practitioner that if she received a reply from the Chief Magistrate that she was exempt from the search procedure she would be able to bypass the security checkpoint on her next visit to the CLC, however, on this occasion she would have to comply with the procedure. Mr Kanapathy gave evidence to the effect that following this the practitioner became abusive towards him, saying, among other things, words to the effect of:
(a) 'Are you from Singapore? I know you're from Singapore, go back to your country, we don't need people like you here';
(b) 'Singaporean prick';
(c) 'prick' (approximately six times); and
(d) that he had 'short man syndrome' (Tribunal decision [192]).
14 The Tribunal accepted the evidence of Mr Kanapathy, and other witnesses of the exchange between Mr Kanapathy and the practitioner who substantially corroborated Mr Kanapathy's evidence. The Tribunal found that the practitioner's 'extraordinary display of discourtesy and abusive conduct' constituted professional misconduct (Tribunal decision [193]).[18]
[18] in de Braekt – Supreme Court at paras.13-14 per Martin CJ, McKechnie and Hall JJ.
SAT had also found that Ms in de Braekt had knowingly and intentionally misled the Magistrates Court of Western Australia with respect to a matter not relevant to these proceedings, and also made three other findings of misconduct not directly relevant to these proceedings.[19]
[19] in de Braekt – Supreme Court at paras.6-12 per Martin CJ, McKechnie and Hall JJ.
Applying well-recognised principles as to the conduct of legal practitioners,[20] the Supreme Court agreed with the conclusion of SAT that Ms in de Braekt was not a fit and proper person to remain on the Roll of Legal Practitioners in the State of Western Australia, and made the following observations:
32 As outlined, the Tribunal concluded that the seriousness of Incident A, which involved knowingly and dishonestly misleading the Magistrates Court on two occasions, warranted a determination that the practitioner should be removed from the Roll, irrespective of the other instances of misconduct (Penalty decision [26]). …
33 In relation to Incidents B-E, the Tribunal determined that while the four instances of misconduct would not individually warrant a determination that the practitioner should be removed from the Roll, collectively they demonstrate:
[A] character and course of conduct on the part of the practitioner which is inconsistent with the privileges of practice as a member of the legal profession' (Penalty decision [27]).
34 We agree. In the course of the conduct that constituted Incidents B-E, the practitioner demonstrated a persistent disregard for the duties of a legal practitioner, the professional standards expected within the legal profession, and the need to maintain and respect the goodwill and trust reposed in the legal profession by the general public, and by those in regular contact with the legal profession, such as police and court staff.
35 …
36 In this case, it is clearly in the public interest, both in terms of the protection of the public, and the maintenance of the reputation and standards of the legal profession, for the practitioner's name to be removed from the Roll. An order will be made to that effect.[21]
[20] in de Braekt – Supreme Court at paras.24-30 per Martin CJ, McKechnie and Hall JJ.
[21] in de Braekt – Supreme Court at paras.32-36 per Martin CJ, McKechnie and Hall JJ.
Jurisdiction of the Court
The AHRC Act provides an exclusive regime for remedying contraventions of the RD Act.[22]
[22] Re East; Ex parte Nguyen (1998) 196 CLR 354 at 365-366 per Gleeson, McHugh, Gummow, Hayne and Callinan JJ; [1998] HCA 73 at paras.26 and 31-32 per Gleeson, McHugh, Gummow, Hayne and Callinan JJ; Perry v Howard [2005] FCA 1702 at para.37 per Siopis J.
Section 46PO(1) 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.
Only an “affected person” can make an application to this Court.[23] Thus, where a wife sought to be party to an application where the complaint to the AHRC was made only by the husband, the wife’s complaint was dismissed for want of jurisdiction.[24] In Kanapathy (No. 3) the Court ordered that the name of the applicant on the application in these proceedings be corrected so as to read “Rajandran Kanapathy”. Because the order operates as a correction, it is as if the proceedings were started by Mr Kanapathy rather than Mrs Kanapathy (and all extant orders continued to have effect). In the circumstances, an “affected person”, namely Mr Kanapathy, must be taken to have made the application to the Court.[25]
[23] Oorloff & Anor v Lee & Ors [2004] FMCA 893 at para.55 per Walters FM (“Oorloff”).
[24] Oorloff at paras.54-56 per Walters FM. Where an organisation or corporation lodges a complaint with HREOC it is arguable that this Court may permit an application brought by that organisation or corporation to be amended so that it is brought in the names of the individual members constituting the organisation or corporation: Stokes & Ors v Royal Flying Doctor Service & Anor (2003) 176 FLR 66; [2003] FMCA 164.
[25] Kanapathy (No. 3) at paras.40-42 per Lucev FM.
The scope of any application made to this Court is however limited by s.46PO(3) of the AHRC Act which provides as follows:
(3) The unlawful discrimination alleged in the application:
(a)must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b)must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
By reason of s.46PO(3)(b) of the AHRC Act an applicant is permitted to allege in this Court facts different to those alleged in the terminated AHRC Complaint, provided that the newly alleged facts are not different in substance from the formerly alleged facts.[26] These provisions do not limit this Court to considering the initial complaint to the AHRC, but rather the complaint ultimately considered by the AHRC.[27] No doubt difficulties may arise with a complaint generally expressed or lacking details.[28] Given that complaints will often not be prepared by lawyers, and ought not be construed as if they were pleadings, this kind of difficulty will be for the Court to determine as to whether the evidence arises out of the same, or substantially the same, acts, omissions or practices that were the subject of the terminated complaint.[29]
[26] Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580-581 per Katz J; [2000] FCA 1531 at para.39 per Katz J.
[27] Travers v New South Wales [2000] FCA 1565 at para.8 per Lehane J (“Travers”); Ho v Regulator Australia Pty Ltd [2004] FMCA 62 at para.4 per Driver FM; Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721 at para.10 per Driver FM.
[28] Gama v Qantas Airways Limited (2006) 195 FLR 475 at 480 per Raphael FM; [2006] FMCA 11 at para.9 per Raphael FM (“Gama”). Gama was appealed, but not on this point: Qantas Airways Limited v Gama (2008) 167 FCR 537; [2008] FCAFC 69 (“Gama Appeal”).
[29] Travers at para.8 per Lehane J; Gama FLR at 480 per Raphael FM; FMCA at para.9 per Raphael FM.
Facts forming the basis for the AHRC Complaint
The facts which form the basis for the AHRC Complaint, and the subsequent proceedings in this Court, are:
a)those set out at paragraphs 4 to 7 of Schedule A of the Notice to Admit Facts, as set out above;[30] and
b)those in the Officers Report, which is the report referred to in paragraph 7 Schedule A of the Notice to Admit Facts, and which is set out above.[31]
[30] See para.12 above.
[31] See para.3 above.
These facts constitute the unlawful discrimination alleged for the purposes of this application. For all practical purposes the unlawful discrimination alleged in this application is the same, or the same in substance, as the unlawful discrimination that was the subject of the AHRC Complaint, and arises out of the same acts that were the subject of the AHRC Complaint. Thus, the unlawful discrimination alleged in the application falls within the scope of s.46PO(3) of the AHRC Act, and is therefore within the jurisdiction of the Court.
Mr Kanapathy’s oral evidence
The other evidence in the proceedings is the oral evidence of Mr Kanapathy as to the immediate and ongoing effects of Ms in de Braekt’s conduct on 16 January 2009. That evidence was given orally at hearing, and can be summarised as follows:
a)Mr Kanapathy was a security supervisor at the Central Law Courts building, and on 16 January 2009 was in charge;
b)Ms in de Braekt’s abuse occurred in the terms set out in the Notice to Admit Facts, which is set out above;[32]
[32] See para.12 above.
c)Mr Kanapathy prepared the Officers Report within 30 to 40 minutes of the abuse occurring, and the contents of the Officers Report are true and correct;[33]
[33] The Officers Report is Exhibit 1, and is set out at para.3 above.
d)there were other security officers and members of the public present when Mr Kanapathy was abused by Ms in de Braekt;
e)the abuse by Ms in de Braekt was, in Mr Kanapathy’s view:
i)“very very hurtful”;
ii)discriminatory;
iii)disrespectful, especially as it was delivered with a raised voice; and
iv)racial, as it referred to Mr Kanapathy’s national origin, being from Singapore, which he is (but he did not know how Ms in de Braekt knew that);
f)Ms in de Braekt’s abuse was subsequently referred to the LPCC by Mr Kanapathy;
g)Mr Kanapathy was so upset by Ms in de Braekt’s abuse, both at the time and subsequently, that he saw his general practitioner, and was referred to a psychologist and clinical psychologist;
h)Mr Kanapathy subsequently made 15 to 18 visits to the psychologist and clinical psychologist for counselling purposes, but he ceased to see them as he could not afford to do so as he had become unemployed in January 2012 when he left G4S;
i)Mr Kanapathy still sees his general practitioner in relation to the effects of the abuse, and is medicated with anti-depressant medication, which he continues to take because of the effects of the abuse;
j)Mr Kanapathy “goes back” to the abuse in his mind, and still thinks about it;
k)Mr Kanapathy has not worked since he left G4S in January 2012, but has been for a number of job interviews (approximately 10 to 12), and continues to look for work;
l)Mr Kanapathy’s consultations with his general practitioner are covered by Medicare, and a “few” of the counselling sessions were covered by Medicare, but not all of them;
m)Mr Kanapathy estimates that his medical expenses, including the prescribed anti-depression medication, which has not been covered by Medicare, has cost him between $2,000 to $3,000 over the last four years; and
n)Mr Kanapathy is presently 55 years of age, and worked for G4S (or its predecessors) for 12 years prior to 2012. Before that he was a motor mechanic for ten years, and before that in the Army in Singapore for 13 years.
In the absence of any appearance for Ms in de Braekt, Mr Kanapathy was not cross-examined on his evidence, and the Court is prepared to accept the substance of his evidence, it being neither incredible nor obviously untrue. The Court notes that no medical or psychological evidence was called in relation to his depressive condition or the ongoing effects of the abuse.
RD Act provisions
The application alleges unlawful conduct under s.18C of the RD Act, which provides as follows:
18C (1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
“public place” includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
The civil wrong established by s.18C of the RD Act has four elements, as follows:
a)an act performed otherwise than in private;
b)an act by a person;
c)an act reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or group of people; and
d)an act done because of the race, colour or national or ethnic origin of the other person or group of people.
The applicant must prove each of the above four elements for the Court to be satisfied that the unlawful conduct has occurred as alleged.
Section 18C of the RD Act – the elements of a civil wrong
There is no question that the act was done by a person, namely, Ms in de Braekt.
The Court is satisfied that the act was one performed otherwise than in private. This is because it was an act performed in the foyer of the Central Law Courts building which houses the District Court of Western Australia, at a time when the evidence sufficiently establishes that there were persons other than Ms in de Braekt and Mr Kanapathy present, including, but not limited to, Mr Kanapathy’s fellow security officers and members of the public. The act was manifestly committed “in public”.
As to whether the acts complained of, that is, the words used, were reasonably likely to offend, insult, humiliate or intimidate and whether they were done because of the race, colour or national or ethnic origin of Mr Kanapathy requires further consideration of the incident.
The abuse in this case was particularly egregious because:
a)it occurred in a particular type of public place, namely, a court building;
b)it was in relation to a particular type of person, namely, a security person performing duties designed to protect those using and occupying the court building, including the public, the legal profession, employees of the Court administration, prisoners and the judiciary; and
c)the abuse fell from a particular kind of person, a legal practitioner, for whom conduct which is both unlawful and lacking in civility ought to be alien.
As the Supreme Court of Western Australia observed in in de Braekt – Supreme Court:
29 Discourtesy can undermine the reputation and standing of the legal profession in our community, and the efficient function of the legal system itself. In Lander v Council of the Law Society of the Australian Capital Territory [2009] ACTSC 117, a case involving discourteous correspondence sent by a practitioner to a government department, Higgins CJ, Gray and Refshauge JJ held that:
[P]ractitioners should, in the course of their practice, conduct their dealings with other members of the community according to the same principles of honesty and fairness which are required in relations with the courts and other lawyers namely, to take all reasonable care to maintain the integrity of the legal profession by ensuring that the practitioner's communications are courteous and that the practitioner avoids offensive or provocative language or conduct [15].
30 To adopt the warning of Chief Justice Robert Benham of the Supreme Court of Georgia in Butts v State 546 SE 2d 472 (GA, 2001):
Civility is more than just good manners. It is an essential ingredient in an effective adversarial legal system such as ours. The absence of civility would produce a system of justice that would be out of control and impossible to manage: normal disputes would be unnecessarily laced with anger and discord; citizens would become disrespectful of the rights of others: corporations would become irresponsible in conducting their business: governments would become unresponsive to the needs of those they serve; and alternative dispute resolution would be virtually impossible (486).[34]
[34] in de Braekt – Supreme Court at paras.29-30 per Martin CJ, McKechnie and Hall JJ.
It is not sufficient that Mr Kanapathy feel hurt or humiliated by the abuse. The abuse must be reasonably likely to offend, insult, humiliate or intimidate.[35] Does calling someone a “prick”, both simply and descriptively (that is, “Singaporean prick” and “short prick”) mean that those words are reasonably likely to offend, insult, humiliate or intimidate? Self-evidently, the answer would appear to be “yes”. The self-evident view is supported by a consideration of the colloquial and slang meanings of “prick”, which include meanings from:
a)standard dictionaries such as:
A stupid, contemptible, or annoying person (esp. a man or boy) also used as a general term of abuse.[36]
and
colloquial … an unpleasant or despicable person.[37]
[35] RD Act, s.18C(1)(a).
[36] Oxford English Dictionary online, Rsky=vNnuvY&result=1.
[37] The Macquarie Dictionary (3rd Edn) (Macquarie University: Macquarie Library Pty Ltd, 2001) page 1695.
and
b)from a more edgy modern online dictionary, the following:
derogatory term used to sum up the existence of a worthless arsehole
a total arsehole, jerk, or jackoff (or jagoff)
someone who is completely worthless
complete arsehole
an ungrateful piece of shit of a person.[38]
[38] Urban Dictionary, >
It is evident both from the meaning of the word, and the manner and context of its use by Ms in de Braekt to Mr Kanapathy, that viewed objectively, it was reasonably likely to, and did, offend, insult and humiliate Mr Kanapathy.[39] The acts occurred in circumstances where Mr Kanapathy was doing no more than his duty, and, in the circumstances, were more than “mere slights”.[40]
[39] Bropho v Human Rights & Equal Opportunity Commission & Anor (2004) 135 FCR 105 at 123 per French J; [2004] FCAFC 16 at paras.65-67 per French J (“Bropho”); Clarke v Nationwide News Pty Ltd (2012) 201 FCR 389 at 404 per Barker J; [2012] FCA 307 at paras.65-66 per Barker J (“Clarke”).
[40] Clarke FCR at 405-406 per Barker J; FCA at paras.68-76 per Barker J (and cases there cited).
In relation to whether the act was done because of Mr Kanapathy’s national origin, it suffices to observe that Ms in de Braekt referred to the fact that Mr Kanapathy was from Singapore, told him to go back to “your country”, that is Singapore, and told him that “we don’t need people like you here”, the “people like you” obviously being a reference to, in context, his being from Singapore. Similarly, the reference to Mr Kanapathy as a “Singaporean prick” makes it clear that the abuse was based upon Mr Kanapathy’s national origin. The ongoing use of the word “prick” after it having been used in conjunction with the fact that Mr Kanapathy was from Singapore, and Ms in de Braekt calling him a “Singaporean prick” means that the other uses of “prick” in such close proximity in time can also arguably be seen to be reference back to, at least in part, Mr Kanapathy’s national origin. In any event the express use of, and reference to, his Singaporean origins is sufficient to find that the abuse was as a consequence of Mr Kanapathy’s national origin.
The fact that Ms in de Braekt might also have abused Mr Kanapathy on the basis that she did not want to undergo the security check does not avail her of a defence in these proceedings, as an act done for two or more reasons where one of the reasons is the national origin of a person, whether or not it is the dominant reason or a substantial reason for the doing of the act, nevertheless means that for the purposes of s.18C of the RD Act, the act is taken to be done because of the person’s national origin.[41]
[41] RD Act, s.18B.
In all the circumstances, the Court is satisfied that the abuse of Mr Kanapathy by Ms in de Braekt on 16 January 2009 satisfies all of the elements of the civil wrong established by s.18C of the RD Act.
Remedies
Mr Kanapathy’s application seeks the following remedies in relation to Ms in de Braekt’s conduct:
a)compensation for loss and damage;
b)an apology from Ms in de Braekt; and
c)for Ms in de Braekt to be ordered to attend an anti-racism training course.
In the course of the hearing the application for an apology and for an order for the attendance of Ms in de Braekt at an anti-racism training course were not pursued, for reasons set out below.[42]
[42] See paras.59-60 and 62 below.
Compensation
The evidence establishes abuse on the basis of national origin which warrants Mr Kanapathy being compensated. The issue is: how much compensation?
A lawyer entering a court building and having their bag checked for security purposes is almost the last person from whom a security officer performing security checks as a public service and in the public interest might expect abuse, particularly unlawful racial abuse. The circumstances of this case, in which the abuse as set out above was rendered in such circumstances, is, therefore, more likely to make Mr Kanapathy’s hurt and humiliation worse. That of course must be balanced against the fact that this racial abuse was but a single incident at a single point in time, and was not part, on the evidence, of an ongoing course of racially abusive conduct.[43]
[43] There was some evidence that Ms in de Braekt had previously abused security personnel, but no evidence that on the previous occasions it was racially motivated.
What evidence is there then of an ongoing effect on Mr Kanapathy separate from the immediate effect which an unexpected abusive outburst might have had?
The Court accepts Mr Kanapathy’s evidence that there have been ongoing effects as a consequence of the abuse that he suffered at the hands of Ms in de Braekt. The ongoing effects have seen Mr Kanapathy revisit, seemingly with some regularity, the hurt and humiliation that he says he suffered, and which the Court accepts he suffered, as a consequence of Ms in de Braekt’s abuse on 16 January 2009. Likewise, the Court accepts that he takes anti-depressive medication as a consequence of the abuse that he suffered from Ms in de Braekt, at least in part. But Mr Kanapathy’s bare descriptions of events and outcomes apart, there is no other evidence to assist the Court in assessing the affect upon Mr Kanapathy of the effects of his abuse. It is perhaps surprising that none of his wife, general practitioner, psychologist or clinical psychologist, or former work colleagues gave any evidence on his behalf in these proceedings.
There is no medical evidence as to the ongoing effect of the abuse on Mr Kanapathy. The lack of proper medical and psychological evidence as to the loss or damage suffered by Mr Kanapathy makes it difficult for the Court to properly assess compensation.
An individual’s loss or damage cannot be assessed by undertaking a comparative exercise with awards of compensation in other cases, although such awards might indicate that there is a band within which certain types of case might fit. In this case the Court notes, for instance, that in Trapman v Sydney Water Corporation & Ors[44] the Federal Magistrates Court awarded an applicant $5000 by way of general damages to compensate for the hurt and humiliation he suffered as a result of what the Court found to be a weak and unfunny racist joke told by his supervisor in the presence of the applicant and his co-workers. The Court found that a restrained, but minimal award was appropriate, in respect of a practice that ought not be permitted in the workplace, but which was at the lower end of the scale.[45] In Campbell v Kirstenfeldt[46] the Federal Magistrates Court found that Mrs Campbell, an Aboriginal woman, had been subject to six separate acts of racial hatred in breach of s.18C of the RD Act. Following a neighbourhood garden dispute Mr Kirstenfeldt called Mrs Campbell a “black mole”, and continued to do so on many occasions. She, and her family, were called “niggers”, “coons” and “black bastards” and told to “go back to the scrub where you belong”. Abuse in similar vein continued for some time on a number of occasions, and on the final occasion when Mr Kirstendfeldt has called Mrs Campbell a “lying black, mole, cunt” she lodged a complaint with what is now the AHRC. Although these were neighbourhood incidents, they did take place in public.[47] The Federal Magistrates Court awarded Mrs Campbell $7,500 in damages for hurt and humiliation. This was made up of separate damages awards for five of the six incidents. Damages were not awarded for one of six separate acts because Mr Kirstenfeldt had already been convicted and fined in a State Magistrates Court in relation to that incident and the Federal Magistrates Court found that that must have afforded Mrs Campbell a level of compensation by reason of the outcome.[48] Higher awards were made in respect of incidents that occurred after Mr Kirstenfeldt’s conviction in the State Magistrates Court because the Court was prepared to infer that greater hurt and humiliation might have been caused to Mrs Campbell in circumstances where she might expect that the conviction and fine would lead to the conduct coming to an end.[49] Mr Kirstenfeldt was also ordered to make a written apology, which he accepted that he should make.
[44] [2011] FMCA 398 (“Trapman”).
[45] Trapman at para.149 per Scarlett FM.
[46] (2008) EOC 93-515; [2008] FMCA 1356 (“Kirsenfeldt”).
[47] Kirstenfeldt EOC at 74,769-74,670 per Lucev FM; FMCA at paras.21-26 per Lucev FM.
[48] Kirstenfeldt EOC at 74,769-74,670 per Lucev FM; FMCA at para.44 per Lucev FM.
[49] Kirstenfeldt EOC at 74,769-74,670 per Lucev FM; FMCA at para.44 per Lucev FM.
Damages in cases under the RD Act are compensatory and no more.[50]
[50] Clarke v Catholic Education Office (2002) 202 ALR 340 at 360 per Madgwick J; [2003] FCA 1085 at para.83 per Madgwick J, a judgment upheld on appeal in Catholic Education Office v Clarke (2004) 138 FCR 121 at 149-150 per Sackville J and Stone JJ; [2004] FCAFC 197 at para.134 per Sackville and Stone JJ.
The difficulty of determining damages in cases of depressive illness and hurt and humiliation has been well recognised.[51] As noted in Mandic, in cases such as this it is usual to have expert evidence to assist in determining the effect of the unlawful conduct on an applicant. In this case there was no such evidence, and the Court is left with little more than Mr Kanapathy’s bare assertions concerning the effects of the abuse by Ms in de Braekt. Nevertheless, and even though the loss is abstract, the Court must strive to measure and give value to the loss evinced by such feelings.[52] The award of damages in such cases does not involve a comparative rating but a “degree of comparison between decided cases is both unavoidable and appropriate”.[53]
[51] Gama Appeal FCR at 569 per French and Jacobson JJ; FCAFC at para.99 per French and Jacobson JJ; Phillis v Mandic [2005] FMCA 330 at para.24 per Raphael FM (“Mandic”).
[52] Font v Paspaley Pearls Pty Ltd [2002] FMCA 142 at para.165 per Raphael FM.
[53] Mandic at para.26 per Raphael FM.
This case is not one of:
a)an inappropriate racist workplace joke;[54] or
b)racial abuse and name calling in a neighbourhood, in front of family and friends, but nevertheless in public.[55]
Rather, it is a case of a person abused in a public place whilst carrying out duties designed to ensure public safety and the protection of a court building, and the occupants, invitees and users of that building, in circumstances where the abuse was levelled by a legal practitioner. There was, however, but a single instance, and the evidence of the loss or damage is less compelling without medical, psychological or other evidence further detailing the effects on Mr Kanapathy.
[54] See Trapman.
[55] See Kirstendfeldt.
Doing the best that it can in all of the circumstances, the Court considers that an award of general damages of $10,500 is appropriate.
With respect to specific damages for medical expenses the evidence given by Mr Kanapathy was that:
a)he had seen his general practitioner and been referred to a psychologist and a clinical psychologist, and had seen the former three times and the latter somewhere between 12 and 15 times; and
b)he could no longer afford to go and see the clinical psychologist for counselling sessions, and has reverted to seeing his general practitioner, and to obtaining medication for his depression from his general practitioner.
No specific evidence as to the cost of medical expenses for the general practitioner, psychologist and clinical psychologist, or the medication, was lead. Mr Kanapathy did, however, estimate that those expenses amounted to approximately $2,000 to $3,000. Some of those expenses, and specifically the costs of his general practitioner, were, on the evidence, borne by Medicare. Otherwise, it appears that to a significant extent the costs were met by Mr Kanapathy.
In all of the above circumstances, the Court is prepared to find that Mr Kanapathy has suffered loss or damage by way of medical expenses incurred as a result of the incident of racial abuse. On the evidence, the Court assesses those specific damages at $2,000.
Counsel for Mr Kanapathy also submitted that specific damages might be awarded for loss of employment, but frankly, and properly, conceded that there were difficulties with this in circumstances where Mr Kanapathy had worked for approximately three years after the incident until January 2012. Further, in the Court’s view, those difficulties are compounded by the fact that there is no evidence as to why Mr Kanapathy actually left his employment with G4S, and whether there is any causal link with the incident of racial abuse by Ms in de Braekt. Mr Kanapathy’s evidence that he still thinks about the incident frequently, and still feels hurt and humiliation as a consequence of the incident, does not establish that he left his employment with G4S because of the incident, or its effects. In those circumstances, there will be no award of special damages for loss of income as a consequence of Mr Kanapathy ceasing employment with G4S in late January 2012, and his subsequent unbroken period of unemployment.
Apology
In Kanapathy (No. 3) the Court dealt with its power to order that an apology issue, and found that there was no doubt that the Court had a discretionary power to do so, but also observed that the discretionary power may not be exercised where an apology will not come freely from a respondent.[56]
[56] See Kanapathy (No. 3) at paras.52-58 per Lucev FM generally, and in particular, at paras.56 and 58. As to an apology not being ordered when it will not come freely from a respondent see the authorities cited in Kanapathy (No. 3) at para.56 per Lucev FM, namely, 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.
As the Court observed at the outset of these Reasons for Judgment this matter has been bitterly disputed. Ms in de Braekt initially refused to appear on the basis that she had not been properly served, or served at all, and has not appeared, at mediation or final hearing. When Ms in de Braekt did appear she took numerous quite often spurious points. As might be expected when a lawyer is the subject of an action personally, and that lawyer then appears for themself, she conducted herself, and by extension conducted the proceedings, in a manner which was both confrontational and lacking objectivity. She has, as a consequence of the incident the subject of these proceedings, together with other incidents of conduct, been struck from the Roll of Legal Practitioners for the State of Western Australia. Ms in de Braekt did not appear on the motion before the Supreme Court of Western Australia which resulted in the removal of her name from the Roll of Legal Practitioners for the State of Western Australia. There was some suggestion in the judgment that she may have been suffering from chronic depression and a nervous breakdown, for which due allowance was made by the Supreme Court of Western Australia.[57] In these proceedings, no medical evidence, or other evidence, indicating any reason for Ms in de Braekt’s failure to appear at final hearing has been tendered to the Court.
[57] in de Braekt – Supreme Court at paras.21-23 per Martin CJ, McKechnie and Hall JJ.
In the circumstances, Counsel for Mr Kanapathy ultimately conceded that an order for an apology was likely to be futile, and did not pursue such an order. In the exercise of its broad discretion, the Court would not have ordered that an apology be rendered by Ms in de Braekt. The Court considers it unlikely, in all the circumstances, that she would have been prepared to make an apology, and the Court would not therefore have ordered one be made.[58] Whilst legally Mr Kanapathy might not be entitled to an apology from Ms in de Braekt for the reasons set out above, there is no doubt that morally Mr Kanapathy deserves an apology from Ms in de Braekt.
[58] Contrast Kirstenfeldt EOC at 74,770 per Lucev FM; FMCA at para.25 per Lucev FM where Mr Kirstenfeldt gave evidence that he was prepared to give an apology to Mrs Campbell in relation to remarks concerning her aboriginality.
Attendance at training course
In Kanapathy (No. 3) the Court considered that it was 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.[59]
[59] Kanapathy (No. 3) at para.63 per Lucev FM.
For similar reasons with respect to those related to an apology set out above, an order for Ms in de Braekt to attend at an anti-racism training course was not pursued by Counsel for Mr Kanapathy. As Counsel observed, it is difficult to see Ms in de Braekt attending a court ordered anti-racism training course when she has been unable or unwilling to attend many of the hearings in these proceedings, and proceedings elsewhere. In the exercise of its broad discretion, the Court will not therefore order that Ms in de Braekt attend at an anti-racism training course.
Conclusion and orders
The Court has concluded that:
a)on 16 January 2009 Ms in de Braekt engaged in conduct rendered unlawful by s.18C of the RD Act by her offensive behaviour toward Mr Kanapathy because of his national origin, specifically by:
i)telling Mr Kanapathy that she knew he was from Singapore, that he ought to go back to Singapore, and that people like him were not needed here, and by then describing him as “you prick”; and
ii)calling Mr Kanapathy a “Singaporean prick” on one occasion; and
iii)in the context of the above offensive behaviour, calling Mr Kanapathy “a prick” on approximately six further occasions, and calling him a “short prick” on one occasion;
b)Mr Kanapathy ought to be awarded compensation for loss and damage in the total sum of $12,500, being $10,500 general damages for the offensive behaviour set out above, and $2,000 special damages in relation to his medical expenses arising from the effects of the unlawful conduct; and
c)in the circumstances, that ordering that Ms in de Braekt give an apology or that she attend at an anti-racism training course would be futile, and will therefore not be ordered.
There will be declaration and orders to reflect the above conclusions. The Court will hear submissions as to costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 25 September 2013
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