Cavar v Australian Unity Home Care Services (No 3)
[2022] FedCFamC2G 269
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cavar v Australian Unity Home Care Services (No 3) [2022] FedCFamC2G 269
File number(s): SYG 1822 of 2021 Judgment of: JUDGE CAMERON Date of judgment: 14 April 2022 Catchwords: PRACTICE AND PROCEDURE – Application for summary dismissal – relevant considerations Legislation: Competition and Consumer Act 2010 (Cth) sch. 2 ss.18, 31, 50
Federal Circuit and Family Court Act 2021 (Cth) ss.143, 239
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r.13.13
Vexatious Proceedings Act 2008 (NSW)
Cases cited: J & A Vaughan Super v Becton Property Group [2014] FCA 581 Division: Division 2 General Federal Law Number of paragraphs: 27 Date of hearing: 6 April 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 73609694475
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
14 APRIL 2022
THE COURT ORDERS THAT:
1.The respondent’s application in a proceeding filed on 11 March 2022 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 (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
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) [sic] and s.18 of the Australian Consumer Law by engaging in misleading and deceptive conduct towards her in relation to employment.
The matter comes before the Court, that is to say the Federal Circuit and Family Court of Australia (Division 2): s.8(2) of the Federal Circuit and Family Court Act 2021 (Cth) (“FCFCOA Act”), for consideration of an application in a proceeding filed by Australian Unity on 11 March 2022 seeking summary dismissal pursuant to r.13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“FCFCOA Div 2 GFL Rules”) or, in the alternative, orders staying or dismissing the proceeding pursuant to s.239(2)(a) of the FCFCOA Act. It also seeks vexatious proceedings orders under s.239(2)(b) of the FCFCOA Act.
For the reasons that follow that application in a proceeding will be dismissed.
RELEVANT LAW
Section 143 of the FCFCOA Act relevantly provides:
143 Summary judgment
…
(2)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
The FCFCOA Div2 GFL Rules provide relevantly:
13.13 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Section 239 of the FCFCOA Act provides:
239 Making vexatious proceedings orders
(1)This section applies if the Federal Circuit and Family Court of Australia (Division 2) is satisfied:
(a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.
(2)The Federal Circuit and Family Court of Australia (Division 2) may make any or all of the following orders:
(a)an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;
(b)an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;
(c)any other order the Court considers appropriate in relation to the person.
Sections 18, 31 and 50 of the Australian Consumer Law (“ACL”) set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) provide respectively:
18 Misleading or deceptive conduct
(1)A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2)Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1).
…
31 Misleading conduct relating to employment
A person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to:
(a) the availability, nature, terms or conditions of the employment; or
(b) any other matter relating to the employment.
…
50 Harassment and coercion
(1)A person must not use physical force, or undue harassment or coercion, in connection with:
(a) the supply or possible supply of goods or services; or
(b) the payment for goods or services; or
(c)the sale or grant, or the possible sale or grant, of an interest in land; or
(d) the payment for an interest in land.
…
APPLICATION FOR SUMMARY DISMISSAL
Applicant – Ms Cavar
Ms Cavar’s originating application alleges:
(a)“misleading and deceptive conduct by respondent in relation to applicant’s employment” contrary to ss.18 and 31 of the ACL including in relation to:
… commencement applicant's Permanent Part Time Contract on 12 Jul 2021 involving availability, place, roster, ID and uniform;
(b)“unfair practice” in that the commencement of Ms Cavar’s employment had failed or been obstructed by Australian Unity;
(c)harassment and coercion in relation to her contract, and that Australian Unity; and
(d)unconscionable conduct by Australian Unity in that it deceived her into providing it with personal information although it intended to employ someone else in the role she sought.
Relevantly for present purposes Ms Cavar seeks monetary compensation for lost earnings and the imposition of pecuniary penalties for the alleged statutory breaches.
In her affidavit of 30 September 2021 filed in support of that application Ms Cavar said that she:
(a)attended an interview for the position of support worker on 3 June 2021;
(b)was advised that the pay rate would be $27.50/hr and that the work would be in Coogee and Sydney City;
(c)had signed the “Final Employment contract” on 25 June 2021, which had required the provision of certain personal information;
(d)was prevented from commencing the job by Australian Unity:
… making false allegations with misleading and deceptive conduct which came into effect by rejecting 5 valid referees sent through the Xref web site …; and
(e)was subsequently advised by Australian Unity:
We are not proceeding further.
No reference is made to rosters, ID and uniforms.
Ms Cavar filed an affidavit on 17 March 2022 in which she deposed that she opposed Australian Unity’s present application in a proceeding, saying that it should be set aside by reason of misconduct by Australian Unity and on its behalf. Ms Cavar said that the application in a proceeding breached ss.136 and 242 of the FCFCOA Act and her human rights.Respectively, ss.136 and 242 concern hearings being held in open court and applications for leave to commence proceedings if a vexatious proceedings order has been made otherwise prohibiting a person from doing so. Ms Cavar also referred to the Vexatious Proceedings Act 2008 (NSW).
Respondent – Australian Unity
Mr Karl Rozenbergs, solicitor for Australian Unity, filed an affidavit affirmed on 11 March 2022 in support of the application in a proceeding. Mr Rozenbergs’s evidence was that Ms Cavar had annexed to her affidavit in support of her application a largely illegible copy of the “employment schedule” which set out the terms of the offer of employment. He annexed to his affidavit a legible copy of the “employment schedule” and deposed that Ms Cavar had accepted those terms electronically on 25 June 2021. It provided for Ms Cavar’s wage to be $25.45/hr, for her primary work location to be “HCS NSW Eastern Sydney” and for her employment to commence on 12 July 2021. Under the heading “Conditional Offer”, the employment schedule stated
Please note that this employment offer is conditional upon the completion of Australian Unity’s background checks, which are set out below, to the satisfaction of the Company. In the event your background checks are not completed in time, your start date may be changed or the employment offer will lapse, at Australian Unity’s discretion, without any liability to Australian Unity for any payment or compensation to you.
It also stated under the heading “Background check”:
This role involves working closely with vulnerable clients. It is an inherent requirement of the role that employees be of good character, trustworthy and able to uphold our good reputation within the community.
The Company may require you, at any time (including pre-employment), to complete a background check including a national and international police records check. Background checks may also include confirmation of identity, Working with Children Check, reference checking, pre-employment medical checks and a check of visa restrictions to confirm your right to work in Australia (as applicable). Background checks are in some cases required to comply with applicable laws that regulate certain Australian Unity businesses.
It is a condition of this offer of employment and of your ongoing employment that you:
(a) disclose to the Company any convictions, findings of guilt (with or without conviction) and/or pending charges against you (in Australia or elsewhere) which may be relevant to your role with the Company and to your good character and trustworthiness; and
(b) Consent to the background checks described above (including a check and release of your national police record) and any further checks as required by the Company from time to time during your employment, and that the results of such disclosures and background checks are satisfactory to the Company.
Mr Rozenbergs’s evidence was that Australian Unity required all candidates for the position of Personal Care Worker to provide a reference from a previous manager, but Ms Cavar refused to provide such a reference and only provided peer references.
Mr Rozenbergs deposed that in response to an email sent on 28 June 2021 by Ms Kalkura, Talent Acquisition Specialist, which stated that a managerial reference was required, Ms Cavar responded by email stating:
I AM SECURITY OFFICER AND I ASSUMING THAT THERE MUST ORGANISED CRIME REGARDLESS OF COLLECTION OF MY DOCUMENTS INVOLVING ALL FOR SOMEONE ELSE PURPOSE
SO, PLEASE DO NOT PLAY WITH ME.
Mr Rozenbergs’s evidence was that in response to a further email from Ms Kalkura stating “these types of emails are not acceptable”, Ms Cavar replied by email later on 28 June 2021 stating:
Please do not make any more unreasonable comments about referees.
You are deliberately obstructing employment process with intention for your private purpose. Obviusly [sic] your private goal is someone close to you and your background.
I promise you that you will not misuse my personal details for placement of other person under my name. I had that experience with one company and now is court case.
…
By the way I have to stress that I am Foreign lawyer and I know what to do with you specifically in case of your obstruction of my employment.
…
You discriminate me and NO EEO and do collection of my personal details for yourself.
…
ANITHA I WILL STOP YOU TO DO THAT KIND OF PRACTICE.
PENALTY FOR INDIVIDUAL/YOU AS MANAGER ARE VERY HIGH AND FOR COMPANY TOO.
SO, THINK TWICE WHAT ARE YOU DOING.
Mr Rozenbergs deposed that because of:
(a)Ms Cavar’s incomplete reference checks, which failed to satisfy Australian Unity’s requirements; and
(b)the tone and content of Ms Cavar’s correspondence during the reference checking process,
Australian Unity determined it would not proceed with the employment, as a result of which the conditional offer contained in the “employment schedule” lapsed.
Consideration
In J & A Vaughan Super v Becton Property Group [2014] FCA 581 at [6]-[7], Pagone J summarised principles relevant to the application of a provision such as s.143 of the FCFCOA Act as:
(a)the court is concerned with substance and not form or deficiencies in pleadings;
(b)the enactment of the section lowered the bar for obtaining summary judgment and permits summary judgment where an applicant fails to identify a valid claim on the material before the court;
(c)caution must be exercised before concluding that a claim lacks reasonable prospects of success, especially where evidence can give colour and content to allegations which are best left to be heard and determined at trial;
(d)the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial;
(e)in assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences in favour of the party whose pleading or action in question; and
(f)as the section requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim.
Although Ms Cavar alleges the existence of an employment contract with Australian Unity, the evidence she has filed does not shed much light on what the terms of such an agreement might have been. In contrast, Australian Unity has, by annexure to Mr Rozenbergs’s affidavit, put before the Court a clear copy of the “employment schedule” document that Ms Cavar signed electronically on 25 June 2021. Mr Rozenbergs has also given evidence that the correspondence between the parties, which was quoted earlier, together with Ms Cavar’s failure to provide sufficient references, led to Australian Unity not proceeding further for the reason that the conditions precedent for a binding offer of employment had not been fully satisfied and so the offer “lapsed”.
It was not explained how it could be said that an offer “lapsed” when non-compliance with it, as disclosed by Ms Cavar’s email correspondence with Ms Kalkura commencing on 28 June 2021, was only apparent after it had been accepted on 25 June 2021 and the contract ostensibly formed. Presumably the conditional nature of the offer meant that it was not capable of being accepted until those conditions were satisfied. If so, the following statement at the end of the “employment schedule” document would seem apt to mislead:
Acceptance
Please confirm your acceptance of this offer of employment by signing electronically. There is no requirement for you to mail back your contract as your acceptance will be captured electronically, including a record of the terms and conditions that were accepted by you.
Congratulations and best wishes for a successful career with Australian Unity.
Australian Unity submitted that:
Assessed as a whole, there is no real or genuine dispute as to whether, as a matter of fact, the Respondent misled or made any operative misrepresentation to the Applicant in respect of her potential employment with the Respondent. Nor could it be said that any misrepresentation (if made) induced the Applicant to enter into the contract. Further, in light of the Respondent’s evidence that the Applicant’s conduct was such that it would not have proceeded with the Conditional Offer, the Applicant has suffered no loss.
All those things might be correct but the fact is that the “employment schedule” provided differently to what Ms Cavar alleges and deposes she was told on 3 June 2021. The fact that Ms Cavar is unlikely to have suffered any loss, as she appears to have been agreeable to different terms and in any event an employment relationship never commenced, are not relevant considerations. The issues are whether Ms Cavar was told what she says she was told and whether, in light of the relevant portions of the “employment schedule”, that information was “liable to mislead” her as to terms or conditions of the proposed employment.
Those are real questions of fact that are in issue and even if Ms Cavar did suffer no loss as a result of the misrepresentations alleged, there remains an issue regarding whether, if those misrepresentations were to be made out, pecuniary penalties ought to be imposed on Australian Unity as Ms Cavar seeks. Consequently, I do not find that the present application lacks reasonable prospects of success as that term is explained in the authorities.
In light of that finding it is not necessary to consider the other allegations and prayers found in the initiating application.
VEXATIOUS LITIGANT
Australian Unity also sought an order under s.239(1)(a) of the FCFCOA Act. Attached to Mr Rozenbergs’s affidavit was a table prepared by Australian Unity which summarised Ms Cavar’s litigation history from 2008 to the present. It lists a number of proceedings instituted by Ms Cavar against various individuals and companies.
Australian Unity submitted:
The Applicant’s pursuit of this proceeding, and the manner in which she has conducted it, only strengthens the case for further orders to be made against her under s 239 of the FCFCOA Act. Specifically:
(a)she has pursued claims that have no reasonable prospect of success;
(b)she has relied on illegible and/or inadmissible documentation;
(c)she has made unfounded claims of bias against the presiding judge and made an untenable application for the judge to recuse himself from the proceeding, which application was heard and dismissed;
(d)she made an untenable application for transfer of this proceeding to the Federal Court, which was in effect an attempt to re-run her recusal application.
(e)she has otherwise dealt disrespectfully with the Court, by failing to appear at times, or abruptly terminating her appearance by telephone; and
(f)she has corresponded with the Respondent’s lawyers in an unreasonable, overly hostile, uncooperative and, at times, threatening manner.
Consideration
I agree that this proceeding has not been a model of good litigation practice and it may yet be shown to less meritorious than that. However, it would be anomalous to permit it to proceed while prohibiting future claims. Accordingly I do not accede at this point to the application to make an order against Ms Cavar under s.239(1)(a) of the FCFCOA Act.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 14 April 2022
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