Cavar v Australian Unity Home Care Services

[2021] FedCFamC2G 316

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Cavar v Australian Unity Home Care Services [2021] FedCFamC2G 316

File number(s):	SYG 1822 of 2021
Judgment of:	JUDGE CAMERON
Date of judgment:	24 November 2021
Catchwords:	PRACTICE & PROCEDURE – Application for recusal – no matter of principle.
Division:	General
Number of paragraphs:	7
Date of hearing:	24 November 2021
Place:	Sydney
Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Mr M. Peterson, Hall & Wilcox

ORDERS

SYG 1822 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CELIA CAVAR

Applicant

AND:

AUSTRALIAN UNITY HOME CARE SERVICES ABN 73 609 694 475

Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	24 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The application in a proceeding filed 21 October 2021 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors, or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE CAMERON

1. This proceeding concerns a dispute between the applicant, Ms Cavar, and Australian Unity Home Care Services, the respondent.  Ms Cavar has filed an application in a proceeding seeking, relevantly for today’s purposes, “immediate exemption of Judge Cameron from matter SYG1822/2021”, namely, this case.  In support of that application, Ms Cavar has filed two affidavits, one affirmed 20 October 2021 and another sworn 1 November 2021.

2. The matters raised by Ms Cavar in her affidavits and in her written submissions do not clearly identify a proper basis upon which I should disqualify myself from hearing this matter were it to remain in this Court, noting that Ms Cavar has also filed an application for the transfer of this matter to the Federal Court of Australia.

3. In her affidavit of 1 November 2021 Ms Cavar relevantly deposed as follows:

   …

   5.In proceeding of matter SYG106/2015 judge Cameron has made big damages to the applicant ordering fix amount of $6424.14 as to costs to be paid to the respondent and dismissed all applicant's claim in that proceeding…

   6.In further proceeding at Federal Court of Australia in matters: NSD925/2015 application for leave to appeal granted in relation to FWA 2009, matter remitted to same judge Cameron for proceeding and no order for costs…

   …

4. In those paragraphs Ms Cavar refers to a proceeding brought by her which came before me in 2016 which, over two judgments, I dismissed on a summary basis.  The first of those decisions was the subject of a partially successful appeal, and the matter remitted to me to deal with the particular issue Flick J identified on appeal.  Following the second decision on 22 December 2016, Ms Cavar sought leave to appeal which Flick J refused in a decision published on 10 May 2017.

5. It seems Ms Cavar did not suggest then and she has not suggested today that I was biased in the decisions which I rendered or that a reasonable lay observer might reasonably have apprehended that I might not have brought an open mind to the determination of the matters raised in that case.  As I said, the matter was dismissed on a summary basis and, most relevantly, no oral evidence was taken and no questions of credit or credibility arose for consideration.

6. It should be recorded for the purposes of this judgment that judges should not lightly disqualify themselves from the hearing of cases.  A judge’s role is to hear the proceedings allocated to her or him. Parties should not think that they can pick and choose their judge, whatever reasons might motivate them.

7. Absent proper reasons why I should not discharge the duty which is imposed on me in this case, it would not be proper to accede to Ms Cavar’s request.  It is not apparent to me that anything has been raised by Ms Cavar whether in her affidavits, her written submissions or her oral address to the Court today that identifies a proper basis upon which I should disqualify myself from hearing this matter. For that reason the application in a proceeding will be dismissed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       1 December 2021