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Rangi v Kmart Australia Ltd

Rangi v Kmart Australia Ltd

Case [2018] FCCA 2040 26 July 2018

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FEDERAL CIRCUIT COURT OF AUSTRALIA

RANGI v KMART AUSTRALIA LTD

[2018] FCCA 2040

Catchwords:
INDUSTRIAL LAW – Application for summary dismissal – where part of the claim is statute barred – relief sought in relation to a failure to promote – no prejudicial alteration of Applicant’s position – claim does not engage s.342 of the Fair Work Act 2009 (Cth) – no reasonable prospects of success – summary judgment entered.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 341, 342, 361, 544, 570

Federal Circuit Court of Australia Act 1999 (Cth), s.17A, 18

Limitation of Actions Act 1958 (Vic), s.5

Federal Circuit Court Rules 2001 (Cth) r.13.10

Cases cited:

Birkett & Birkett & Anor [2017] FCCA 2503

Henderson v City of Adelaide (No 2) [2012] FCA 9

Kanan v Australian Postal and Telecommunications Union [1992] FCA 539

Przybylowski v Australian Human Rights Commission (No. 2) (2018) FCA 473

Unsworth v Tristar Steering and Suspension Australia Limited [2008] FCA 1224

Applicant:

YUDHVIR RANGI

Respondent:

KMART AUSTRALIA LTD

File Number:

MLG 345 of 2017

Judgment of:

Judge Hartnett

Hearing date:

20 April 2018

Delivered at:

Melbourne

Delivered on:

26 July 2018

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondent:

Mr McKenney

Solicitor for the Respondent:

Ms De Marchi, in-house lawyer for Kmart Australia Ltd

ORDERS

Pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) there be judgment for the Respondent against the Applicant in respect of the whole application filed on 22 February 2017.
The Respondent file and serve any further submissions as to costs and quantum of costs within 14 days hereof.
The Applicant file and serve submissions as to costs and quantum of costs within 14 days of service upon the Applicant of the Respondent’s submissions as to costs.
The Respondent file and serve further submissions in reply if any, within 7 days of service upon the Respondent of the Applicant’s submissions.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 345 of 2017

YUDHVIR RANGI

Applicant

And

KMART AUSTRALIA LTD

Respondent

REASONS FOR JUDGMENT

Preliminary

By application in the Fair Work Division of the Court and by Form 4 filed on 22 February 2017, the Applicant alleged contravention, by the Respondent, of a general protection under the Fair Work Act 2009 (Cth) (‘the FW Act’) and sought amongst other things, compensation and the imposition of pecuniary penalties upon the Respondent. The Applicant also filed, on 22 February 2017, a document headed ‘Points of Claim’.
The Applicant, who is a qualified lawyer and has his own legal practice ‘Rangi Lawyers’ which practices in many areas, including employment law and general protections litigation, acted as a litigant in person throughout the proceedings.
When the matter was first before the Court on 16 March 2017 it was adjourned. Service by the Applicant upon the Respondent had not been effected. The adjourned date was 13 April 2017. By that time a Notice of Appearance had been filed by the lawyers acting for the Respondent. Those lawyers had also…

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.

Continue reading Rangi v Kmart Australia Ltd

Details

AGLC: Rangi v Kmart Australia Ltd [2018] FCCA 2040
Case: [2018] FCCA 2040
Decision Date: 26 July 2018

CaseChat Overview and Summary

In *Rangi v Kmart Australia Ltd*, the applicant, Ms Rangi, brought proceedings against the respondent, Kmart Australia Ltd, alleging unlawful discrimination. The matter was heard in the Federal Court of Australia.

The primary legal issue before the court was whether Kmart Australia Ltd had unlawfully discriminated against Ms Rangi on the ground of her race, in contravention of the *Racial Discrimination Act 1975* (Cth). Specifically, the court had to determine if the alleged conduct constituted an act of racial discrimination.

Judge Hartnett found that the evidence did not establish that Kmart Australia Ltd had engaged in unlawful discrimination against Ms Rangi. The court applied the principles of the *Racial Discrimination Act 1975* (Cth), which requires proof of an act done because of a person's race, colour, descent or national or ethnic origin. The court concluded that the applicant had failed to discharge the onus of proof required to establish such a contravention.

The application was dismissed.

Orders