In De Braekt v Kanapathy [2020] FCA 977

In De Braekt v Kanapathy [2020] FCA 977

Because the affidavit of service showed that the respondent had only been sent the notice of appeal by ordinary post, the respondent had not been personally served as required by rr 8.06 and 10.1 of the Federal Court Rules 2011 (Cth). Although dismissal for non-appearance was open, the appropriate disposition was to...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
07 July 2020
Procedural Posture
Application for Extension of Time for Leave to Appeal From a Decision of the Federal Circuit Court of Australia / Case Management Hearing
Outcome
Conditional dismissal order made unless service is regularised within 21 days; no order as to costs.
Legal Topics
['service of Originating Documents' 'personal Service' 'extension of Time for Leave to Appeal' 'non Appearance']
['practice and Procedure' 'administrative and Constitutional Law and Human Rights' 'racial Discrimination'] ['service of Originating Documents' 'personal Service' 'extension of Time for Leave to Appeal' 'non Appearance']

Source-derived case record

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Procedural Posture

Application for Extension of Time for Leave to Appeal From a Decision of the Federal Circuit Court of Australia / Case Management Hearing

Legal Issues

  1. 1 ['Whether the respondent had been properly served with the originating documents.' 'Whether the application should be dismissed for non-appearance or for failure to effect proper service.' 'Whether further orders should be made requiring personal service or an application for service other than personal service.']

Ratio Decidendi

Because the affidavit of service showed that the respondent had only been sent the notice of appeal by ordinary post, the respondent had not been personally served as required by rr 8.06 and 10.1 of the Federal Court Rules 2011 (Cth). Although dismissal for non-appearance was open, the appropriate disposition was to require the applicant within 21 days to prove personal service or apply for service other than personal service, failing which the application would be dismissed.

Court Disposition

Conditional dismissal order made unless service is regularised within 21 days; no order as to costs.

Orders

  • ['Unless within 21 days of the date of these orders the applicant files 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 an application for service other than...