Cavar v Australian Unity Home Care Services (No 2)
[2022] FedCFamC2G 75
•27 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cavar v Australian Unity Home Care Services (No 2) [2022] FedCFamC2G 75
File number(s): SYG 1822 of 2021 Judgment of: JUDGE CAMERON Date of judgment: 27 January 2022 Catchwords: PRACTICE & PROCEDURE – Application for transfer of matter to the Federal Court of Australia – relevant considerations.
COSTS – Indemnity costs.
Legislation: Competition and Consumer Act 2010 (Cth), s.31
Federal Circuit and Family Court of Australia Act 2021 (Cth), s.153
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r.8.02Division: General Division Number of paragraphs: 18 Date of hearing: 27 January 2022 Place: Sydney Counsel for the Applicant: No appearance by or on behalf of the Applicant Counsel for the Respondent: Ms R. Sweet Solicitor for the Respondent: 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:
27 JANUARY 2022
THE COURT ORDERS THAT:
1.The applicant’s application in a proceeding filed 8 November 2021 be dismissed.
2.The applicant pay the respondent’s costs of and incidental to the application in a proceeding filed 8 November 2021 on an indemnity basis, those costs to be agreed or assessed by the Court.
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 (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), 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
INTRODUCTION
The applicant, Ms Cavar, filed an originating application on 30 September 2021 alleging that the respondent, Australian Unity Home Care Services (“Australian Unity”), had breached s.31 of the Competition and Consumer Act 2010 (Cth) by engaging in misleading and deceptive conduct towards her in relation to employment.
The matter comes before the Court today for consideration of an application in a proceeding filed by Ms Cavar on 8 November 2021 seeking the transfer of the proceeding to the Federal Court of Australia.
When the matter was called on today there was no appearance by or for Ms Cavar. She is aware of the listing of this matter as she was present by telephone on 24 November 2021 when the listing was pronounced. I also note that in her written submissions of 22 December 2021 Ms Cavar states, “The applicant will not attend hearing on 27 Jan 2022 because of his medical conditions.” It is apparent that Ms Cavar has elected not to attend today and in the circumstances there is no reason why the application in the proceeding cannot be determined or straight away and in her absence.
As I have said, the matter comes before the Court at this point for consideration of the application in a proceeding which Ms Cavar has filed seeking the following orders:
(1)Transfer of proceeding in above matter to Federal Court of Australia
(2)Legal grounds for transfer are in Affidavit sworn on 5 Nov 2021 specified in points 1 to 5 by applicant.
LEGISLATION
The Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) relevantly provides:
153 Discretionary transfer of proceedings
(1) If:
(a)a proceeding is pending in the Federal Circuit and Family Court of Australia (Division 2); and
(b) the proceeding is not a family law or child support proceeding;
the Court may, by order, transfer the proceeding from the Court to the Federal Court.
(2) The Federal Circuit and Family Court of Australia (Division 2) may transfer a proceeding:
(a) on the application of a party to the proceeding; or
(b) on its own initiative.
(3) In deciding whether to transfer a proceeding to the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) must have regard to:
(a) any Rules of Court made for the purposes of subsection 154(2); and
(b)whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c)whether the resources of the Federal Circuit and Family Court of Australia (Division 2) are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
…
The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“Rules”) relevantly provide:
8.02 Transfer to Federal Court
(1)The Court may, at the request of a party or on its own initiative, transfer a proceeding to the Federal Court.
(2)Unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding.
(3)Unless the Court otherwise orders, the request must be included in a response or made by application supported by an affidavit.
(4)In addition to the factors to which the Court must have regard under subsection 153(3) of the Act in deciding whether to transfer a proceeding to the Federal Court, the Court must take the following factors into account:
(a)whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue;
(b)whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding were not transferred;
(c) whether the proceeding will be heard earlier in the Court;
(d)the availability of particular procedures appropriate for the class of proceeding;
(e)the wishes of the parties.
APPLICANT’S EVIDENCE AND SUBMISSIONS
Ms Cavar filed a supporting affidavit sworn on 5 November 2021 in which she deposed that:
1.I am self litigant and I am authorised to make this affidavit in supporting of Application in a proceedings regardless transfer of the matter SYG 1822/2021 to Federal Court of Australia.
2.Under Division 2, section 153.2(a) of FCFCOA 2021 I applicant seeking transfer of proceedings of the matter on the application made by applicant.
3.Under section 153.1(b) and 153.3 the proceeding is general federal law matter-Consumer protection Action, and in the ineterest of administation of justice the applicant seek an order for transfer of the matter to the Federal Court of Australia.
4.Pursuant to General Law Rules 2021 under rules 8.01 , 8.02 and 8.03 on ground of reduction in costs, and as greater convenience matter to be transfered to the Federal Court of Australia.
5.Pursuant to Central Practice Direction (GENFED-CPD) rules 4.2 and 4.3 the matter to be transfered toFederal Court of Australia.
6.In support of this affidavit and application for transfer proceeding to Federal Court of Australia are submissions with affidavit dated/filed on 01/11/2021 too.
Rule 8.01 is not relevant to the present interlocutory application as it is concerned with venue, not with transfer, and r.8.03 is concerned with the steps to be taken by the registrar in the event that a transfer order is made. The Central Practice Direction – General Federal Law proceedings relevantly merely repeats some portions of r.8.02 and refers to s.153 of the FCFCOA Act.
In her earlier affidavit of 1 November 2021, Ms Cavar relevantly deposed that the transfer of this matter to the Federal Court would be the more efficient and inexpensive course. She also relied on the Federal Court’s Employment and Industrial Relations Practice Note, which is not applied in this Court.
As I have mentioned already, Ms Cavar filed an outline of written submissions on 22 December 2021. The majority of that document addresses the merits of her case against Australian Unity and so to that extent is not relevant to present considerations. The one point that arguably was relevant stated:
Based on all above the applicant pursuant to Federal Circuit Court and Family Court (Division 2) Rules 2021 Part 10, Division 10.1 &10.2 the applicant has big concern regardless Conduct of proceedings by judge Cameron and to avoid long way of proceedings such as Dispute resolution or Consiliation conference the applicant seeks an order for TRANSFER OF MATTER TO FEDERAL COURT OF AUSTRALIA IMMEDIATELY.
CONSIDERATION
Australian Unity summarised Ms Cavar’s case for transfer in the following terms which I adopt:
(a)there would be a “reduction in costs” if the case was transferred to the FCA, because, based on prior experience, the FCA is less likely to award costs against the Applicant compared to this Court;
(b)it is more convenient for this matter to be heard in the FCA; and
(c)a lengthy proceeding would be avoided in the FCA because alternative dispute resolution processes would not be facilitated by the FCA.
As recorded earlier, Ms Cavar also deposed that the interests of the administration of justice favour the transfer of the matter.
As there is no associated proceeding pending in the Federal Court, at least none which has been identified in the present application, the matters to which the Court must have regard when deciding the present transfer application are those set out in the Rules and the FCFCOA Act and may be summarised as:
(a)whether a request for transfer was made on or before the first court date;
(b)whether the resources of this Court are sufficient to hear and determine the proceeding;
(c)whether the proceeding is likely to involve questions of general importance;
(d)whether the proceeding is likely to be heard and determined in the Federal Court at less cost and more convenience to the parties than if it remained in this Court;
(e)whether the proceeding would be heard earlier in this Court;
(f)the availability of particular procedures appropriate for the class of proceeding;
(g)the interests of the administration of justice; and
(h)the wishes of the parties.
Points (a) and (h) may be addressed by recording that Australian Unity takes no issue with the present application being made slightly later than the first court date and the parties do not agree that the matter should be transferred, Australian Unity opposing it. I should also note before passing from this issue that Ms Cavar was the party who filed the proceeding in this Court and seems to want to transfer it only because the matter has been docketed to me.
None of the other considerations favour transfer:
(b)Ms Cavar has not demonstrated that the resources of the Court would not be sufficient to hear and determine this proceeding. It does not appear that the matter presents particular difficulties or has particular features that would point to an answer of that sort.
(c)It is not apparent from the initiating application that the matter involves a question of general importance. It seems probable that the case will turn on its own facts and not involve matters likely to be significant to anyone beyond the present parties.
(d)There is no reason to think that questions of cost or convenience favour transfer. I appreciate that Ms Cavar has asserted otherwise but she has not supported that assertion with any evidence which would give it substance. The fact that particular costs orders concerning Ms Cavar may have been made in the past in this Court and in the Federal Court is not to the point. The consideration in question is concerned with the expense of litigation more generally.
(e)There is also no reason to think that the matter will not be able to be dealt with expeditiously in this Court. The fact that a mediation might be ordered in this Court, an issue raised by Ms Cavar in her written submissions which is also a possibility in the Federal Court, would not be likely to delay any hearing to a significant, or possibly any, extent.
(f)No procedures peculiar to the Federal Court which might be particularly appropriate to this matter have been identified.
(g)Overall no other matter suggests that the interests of the administration of justice favour transfer. In saying that, I have regard to Ms Cavar’s concerns stated in her affidavit 1 November 2021 and in her letter to the respondent’s solicitors of 22 January 2022, which is Ex.R1 on the present application, that I would not bring a fair and open mind to the matter. In that connection, I note that an application that I disqualify myself from hearing this matter was determined in the negative on 24 November 2021. As far as I am aware, Ms Cavar has not sought leave to appeal that determination. That being so, her present application in a proceeding seeks to re-agitate in a different manner the matter that was determined on 24 November 2021 and her concerns therefore do not support a conclusion that the interests of the administration of justice favour transfer in order that the matter might be heard by a judge of the Federal Court.
For all these reasons, I am not satisfied that it is appropriate to order that the matter be transferred to the Federal Court and so the application in a proceeding filed on 8 November 2021 will be dismissed.
COSTS
As the application is to be dismissed Australian Unity has sought an order for its costs. It points out that the present matter is in substance the re-agitation of a matter already decided by me on 24 November 2021, namely, whether I should hear this matter. As I indicated earlier today in my reasons for dismissing the Ms Cavar’s more recent application in a proceeding, it seems that that application was brought in order that somebody other than I hear this matter. But, as I said in those reasons, an application that I disqualify myself from hearing this matter was dismissed on 24 November 2021 and I am unaware of any application for leave to appeal from that decision.
In the circumstances, the bringing of a second interlocutory proceeding to place the matter before another judge, this time in the Federal Court, was distinctly unmeritorious and Australian Unity should not have been put to the costs of dealing with it.
In the circumstances, I accede to Australian Unity’s application that Ms Cavar pay its costs of the application in a proceeding on an indemnity basis.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 11 February 2022
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