FEDERAL COURT OF AUSTRALIA In De Braekt v Kanapathy [2020] FCA 977 Appeal from: Application for extension of time: Kanapathy v In De Braekt [2019] FCCA 2541 File number: WAD 445 of 2019 Judge: MCKERRACHER J Date of judgment: 7 July 2020 Catchwords: PRACTICE AND PROCEDURE – service of originating documents – where originating documents were sent to the respondent by ordinary post – where personal service is required by r 8.06 of the Federal Court Rules 2011 (Cth) – orders made requiring service to be effected correctly – in circumstances where neither party appeared Legislation: Racial Discrimination Act 1975 (Cth) s 18C Federal Court Rules 2011 (Cth) rr 8.06, 10.1, 36.01 Federal Circuit Court Rules 2001 (Cth) r 16.05 Cases cited: AID15 v Minister for Immigration and Border Protection (No 2) [2015] FCCA 2028 Kanapathy v In De Braekt [2019] FCCA 2541 Kanapathy v In De Braekt (No 4) [2013] FCCA 1368 Date of hearing: 7 July 2020 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 22 Counsel for the Applicant: The Applicant did not appear Counsel for the Respondent: The Respondent did not appear ORDERS WAD 445 of 2019 BETWEEN: MEGAN IN DE BRAEKT Applicant AND: RAJANDRAN KANAPATHY Respondent JUDGE: MCKERRACHER J DATE OF ORDER: 7 JULY 2020 THE COURT ORDERS THAT: 1. Unless within 21 days of the date of these orders the applicant files: (a) An affidavit deposing to the fact that the respondent has been personally served with the originating documents in this matter in accordance with Rules 8.06 and 10.1 of the Federal Court Rules 2011 (Cth); or (b) An application for service other than personal service of the originating documents in this matter on the respondent; the application will be dismissed. 2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT REVISED FROM THE TRANSCRIPT MCKERRACHER J: 1 This matter concerns an application for an extension of time for leave to appeal from a decision of the Federal Circuit Court of Australia. The decision was made by a second Federal Circuit Court judge who dismissed the applicant's application for orders setting aside previous orders made by a first judge: Kanapathy v In De Braekt [2019] FCCA 2541. In October 2019, the matter was referred to me for case management. 2 On 16 January 2009, the applicant is alleged to have made racist remarks to the respondent, a Western Australian Central Law Courts precinct security guard who had asked to search the applicant's purse. After his complaint to the Australian Human Rights Commission was terminated on the basis of no reasonable prospect of conciliation, the respondent filed in the Federal Circuit Court in October 2010, alleging breaches of s 18C of the Racial Discrimination Act 1975 (Cth). 3 Following procedural disputes regarding service and other matters requiring preliminary judgments, on 25 September 2013, the first Circuit Court judge delivered judgment in favour of the respondent in these proceedings and ordered that the applicant in these proceedings pay the respondent $12,500 in compensation for loss and damage: Kanapathy v In De Braekt (No 4) [2013] FCCA 1368. It is unclear as to whether there has been any compliance with those orders. 4 More than two years later on 19 October 2015, the applicant in these proceedings filed an application to set aside the first judge's final orders. The application was set down for final hearing on 3 March 2017. Neither the applicant nor the respondent appeared and the first judge dismissed the application. 5 On 10 December 2018, the applicant filed an application seeking orders pursuant to r 16.05 of the Federal Circuit Court Rules 2001 (Cth) that the decision of 3 March 2017 to dismiss the initial set aside application be set aside. 6 The second judge heard the application on 29 July 2019 and delivered ex tempore reasons dismissing the application. In considering the exercise of discretion under r 16.05, the second judge had regard to the following factors as set out in AID15 v Minister for Immigration and Border Protection (No 2) [2015] FCCA 2028: (a) reason for failure to attend a hearing; (b) reason for delay in making the set aside application; (c) overall interests of justice; (d) nature of the judgment or orders sought to be set aside; (e) existence of any utility in setting aside the judgment. In addition, the second judge also considered the prejudice to the respondent as a relevant factor. 7 The substantive part of the second judge's reasons are concerned with the applicant's submissions which purport to explain her reason for her failure to attend the initial set aside hearing before the first judge in March 2017 and her mental state at the time of the 2009 incident. The applicant alleged that: (a) first, she was of the belief that in 2017, she was represented in the proceedings by a certain barrister in a set of chambers in Western Australia. She provided redacted emails to the Court purporting to demonstrate a legal relationship; (b) from 2009 to 2013, she suffered from severe depression and anxiety which made her unfit for trial when the first judge found against her in 2013. She provided a psychiatric report in support of this contention; and (c) additionally, in separate proceedings in the State Administrative Tribunal concerning the same facts, the respondent in these proceedings made inconsistent statements in evidence to that given at the 2013 hearing in the Federal Circuit Court before the first judge. 8 The second judge considered (at [30]-[34] of his reasons for judgment) the evidence of a legal relationship and found it to be unconvincing in the absence of any evidence from the barrister himself as to why he did not attend the 2013 hearing. The second judge found that on the evidence before him, the only conclusion that could be drawn was that the applicant believed she was represented at the time, as distinct from that she was actually entitled to be represented at the time. The second judge concluded that the psychiatric report was insufficient for a conclusion that the current applicant was unfit for trial in September 2013 (at [38]-[39]). 9 In relation to the problems with inconsistent testimony of the current respondent, the second judge said that those statements would have to be such as to undermine the basis for the award of compensation. The liability aspect of the matter had been settled because the applicant (then respondent) had not complied with a notice to admit. His Honour said (at [41]): … It would seem to me that this is really asking the Court for a totally new application where [the respondent] would be now tested upon evidence that he gave some six and then seven years ago, and that therefore the Court would be able, in 2019, to discern for itself exactly what happened back in 2009. 10 The second judge concluded that the overall interests of justice favoured finalising the matter and he dismissed the application. 11 The applicant then filed an application for an extension of time and leave to appeal in this Court on 5 September 2019. She contended that she was unable to file her grounds of appeal at that time because she was unable to gain access to the raw transcript of the proceedings. Her contention was that the second judge's ex tempore reasons differed from those subsequently published. 12 From September 2019 until April 2020, the applicant has corresponded with my chambers on numerous matters including the following: (a) in November 2019, she was required to file an affidavit of service before progressing the matter: (b) on 7 January 2020, the applicant filed an affidavit of service, but the respondent has not yet come on the record; (c) on 17 February 2020, the transcript (of the hearing before the second judge) was provided to the applicant; (d) on 24 March 2020, the applicant requested an audio recording of the hearing in order to formulate her grounds of appeal; (e) on 27 March 2020, the audio file was provided to the applicant; (f) on 21 April 2020, the applicant sent her draft grounds of appeal to my chambers; (g) on 21 April 2020, my chambers responded, requiring the applicant to provide the grounds in the correct format pursuant to r 36.01 of the Federal Court Rules 2011 (Cth); (h) on 27 April 2020, the applicant requested the complete audio visual footage from the call-over before the second judge on 29 July 2019; (i) on 1 May 2020, the audio file of the hearing was provided to the applicant. She was also advised that the Court does not capture visual footage of the proceedings, generally speaking, and certainly not those proceedings; (j) on 5 May 2020, the applicant advised that if the audio visual recording of the entire list from 29 July 2019 was not provided, she would make a formal application for access to that footage; (k) on 5 May 2020, my chambers responded reiterating that visual footage is not captured and that audio from the second judge's other hearings would not be provided; and (l) on 25 June 2020, the applicant was advised by my chambers that the matter had been listed for a case management hearing today. 13 Throughout this correspondence, the applicant has expressed her preference for an oral hearing of her application for an extension of time and that her application be heard together with the appeal. No programming orders have yet been made for reasons I will explain. The grounds of appeal are extensive and do not presently require further examination. 14 The current and fundamental difficulty is that the affidavit of service filed on 7 January 2020 indicates that the respondent has not been personally served. 15 The respondent has yet to come on the record, and attempts to make contact with him by my chambers have been unsuccessful. In the affidavit of service filed by the applicant, she deposes that she caused, on 8 September 2019, a notice of appeal to be sent by ordinary post to the respondent's address. 16 Rule 8.06 of the Federal Court Rules requires an originating application to be served personally on a respondent. 17 Rule 10.1 of the Federal Court Rules states that personal service is effected by leaving the document with the individual. This is not achieved by ordinary post to a residential address. 18 At today's case management hearing, there is no appearance by the applicant. After three minutes, I directed the court officer to telephone the applicant on her mobile phone. I was informed by the court officer that she had done so but the call was 'cancelled'. 19 This very long running matter, from events of more than a decade ago, needs to be brought on for proper determination or dismissal. 20 In my view, the applicant has had very substantial indulgence and assistance by the Court, and extensive public resources are being utilised in the circumstances of a case which is now very old. 21 In those circumstances, while it would be open to dismiss the application altogether on the grounds of non-appearance, I consider that the appropriate disposition of the matter is to make orders as follows: (1) Unless within 21 days of the date of these orders the applicant files: (a) An affidavit deposing to the fact that the respondent has been personally served with the originating documents in this matter in accordance with Rules 8.06 and 10.1 of the Federal Court Rules 2011 (Cth); or (b) An application for service other than personal service of the originating documents in this matter on the respondent; the application will be dismissed. (2) There be no order as to costs. 22 I reserve the right to edit and amend and correct any infelicities in these written reasons. Other than that, I make orders in accordance with the orders foreshadowed in those reasons. Those orders are now made. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 10 July 2020