Cavar v Australian Unity Home Care Services (No 4)
[2022] FedCFamC2G 824
Federal Circuit and Family Court of Australia
(DIVISION 2)
Cavar v Australian Unity Home Care Services (No 4) [2022] FedCFamC2G 824
File number: SYG 1822 of 2021 Judgment of: JUDGE CAMERON Date of judgment: 1 September 2022 Catchwords: PRACTICE & PROCEDURE – Application for summary dismissal based on settlement of proceeding and applicant’s non-attendance. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 139
Federal Court of Australia Act 1976 (Cth)
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 rr 13.05, 13.06, 17.05, pt 1 sch 2
Cases cited: Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510 Division: General Division Number of paragraphs: 16 Date of hearing: 1 September 2022 Place: Sydney Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Ms R. Sweet Solicitor for the Respondent: Hall & Wilcox
Table of Corrections 7 December 2022 The end certification date “1 September 2022” has been corrected to “6 October 2022”. 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:
1 September 2022
THE COURT ORDERS THAT:
1.Pursuant to r.13.06(1)(e) of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 the proceeding be dismissed.
2.The applicant pay the respondent’s costs fixed in the amount of $23,140.
3.The costs ordered in order 2 are additional to the costs ordered earlier in the proceeding.
THE COURT NOTES THAT:
A.As Ms Cavar was not present for the majority of the hearing and these orders are made in her absence, she may apply under r.17.05(2)(a) of the Rules to have these orders set aside.
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
This matter was commenced by an initiating application filed on 30 September 2021. The applicant, Ms Cavar, sought employment with the respondent, Australian Unity Home Care Services (“Australian Unity”), but her application did not proceed to a successful conclusion as far as Ms Cavar was concerned. Australian Unity, amongst other things, was unwilling to proceed with Ms Cavar’s application because, it says, she had not provided a reference from a former employer by way of support for her application.
The matter was listed for hearing today and when the matter was called on Ms Cavar was present in person and Australian Unity was represented by counsel, Ms Sweet. At the outset of the proceeding, Ms Sweet sought summary dismissal of the proceeding on the basis that the parties had compromised the dispute and had reduced their agreement to writing in the form of a deed of release. Some initial discussion took place in relation to that instanter application, following which Ms Sweet moved to adduce the evidence on which the application for dismissal was based.
Ms Cavar indicated that she contested the alleged settlement and said from the bar table that although she had executed the deed of release, she had been pressured into doing so. She said that, amongst other things, Australian Unity’s assessment of its costs made during the course of settlement negotiations intimidated her and she signed because she was pressured. After a short time, Ms Cavar became agitated and left the hearing. She did not return.
Australian Unity pressed on with its application for dismissal following Ms Cavar’s departure.
Legislation & RULES
Section 139 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides:
139 Determination of matter completely and finally
In every matter before the Federal Circuit and Family Court of Australia (Division 2), the Court must grant, either:
(a) absolutely; or
(b) on such terms and conditions as the Court thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible:
(c)all matters in controversy between the parties may be completely and finally determined; and
(d)all multiplicity of proceedings concerning any of those matters may be avoided.
The Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (“Rules”) provides as follows:
…
13.05 Orders on default
(1) If an applicant is in default, the Court may order that:
(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b) a step in the proceeding be taken within the time limited in the order; or
(c) if the applicant does not take a step in the time mentioned in paragraph (b)—the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant.
…
13.06 Default of appearance of a party
(1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:
…
(e) proceed with the hearing generally or in relation to any claim for relief in the proceeding.
(2) If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.05(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court or the Registrar thinks just.
…
Consideration
The Court can entertain the present application for dismissal and a separate proceeding based on the agreement is not necessary. In that regard, I refer to s.139 of the Court’s statute, and the decision of the Federal Court on the equivalent provision of the Federal Court of Australia Act 1976 (Cth) in Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510.
Deed of Release
The agreement propounded by Australian Unity is documented in the deed of release to which I have referred and of which there are, in evidence, copies of two counterparts signed by the respective parties, or more accurately in Australian Unity’s case, by its attorney. Relevantly, it provides that Ms Cavar will receive an amount of money and Australian Unity will release Ms Cavar from costs orders made in this proceeding in the sum of $11,168.30. Under the deed, Ms Cavar’s obligations included providing a signed copy of the deed to Australian Unity and also taking all reasonable steps to discontinue this proceeding, including filing a notice of discontinuance. In broad terms, the deed provides that Ms Cavar releases and discharges Australian Unity and its related bodies from all claims which she might have against them, and will keep them indemnified from any claims which she might make against them. Australian Unity releases Ms Cavar from any claims it might have against her, and promises not to bring or commence proceedings against her. Clause 6(a) of the deed states:
Ms Cavar acknowledges and agrees that each member of the group may plead this deed as a bar to any proceedings brought or commenced by Ms Cavar that are directly or indirectly arising out of or in connection with the employment contract, the employment offer, the costs order or the proceedings, or any other matters referred to or contained in this deed.
The proceedings are defined in the recitals to the deed as being “the present proceeding, namely, SYG1822/2021”, and the recitals also adequately define employment offer and employment contract.
Evidence of Correspondence between Parties
The only evidence before the Court that is relevant to the question of the voluntariness of Ms Cavar’s execution of the deed is found in the correspondence between the parties. That relevantly started, it appears, with a letter from Australian Unity’s solicitors, Hall & Wilcox, to Ms Cavar, dated 24 August 2022, which enclosed an unexecuted copy of the deed and an unsigned notice of discontinuance. After reciting relevant facts and repeating its denials, Australian Unity offered to pay Ms Cavar the sum referred to in the deed of release and to release her from the costs orders which had been made in this proceeding. Australian Unity also, by way of background, stated that it had incurred more than $130,000 in costs of and incidental to the proceeding and was likely to incur a further $25,000 in costs to respond to the claim after 30 August 2022, when the offer would lapse. I note that those figures included amounts for counsel’s fees.
In a 31 August 2022 email to Mr Peterson of Hall & Wilcox, Ms Cavar said:
I am sending you reminder for email with deed of release signed by me and verified with JP. So, that is up to you.
In regards to power of attorney mentioned on deed of release I do not have any knowledge, for POA, if it exists, it is fake document, who holds that document on me will face criminal charges.
I am to serious, I am not person who should/could be under POA discovered in your deed of release for above matter.
The day before, she had written:
Hi there,
Because of my medical conditions, I am not able to proceed with proceedings further.
I am forced to accept the deed of release in this matter because of court staff obstructions to file documents with purpose of dismissing my claim and causing proceeding at Federal Court – appeal.
The second reason is corruptive conduct by your team and your client, high, unreasonable and not fair costs.
There is attached accepted and signed deed of release in above matter.
Do payment on my bank account with …
Statements of the sort made in the Hall & Wilcox letter of 24 August 2022 are unexceptional in the context of settlement negotiations. Further, although I queried counsel as to the costs figure because it appeared to me to be somewhat high, it is not obviously exaggerated for intimidating effect and would seem to be a solicitor and a client figure that would necessarily be reduced upon assessment. It might also be noted that there is no evidence that Ms Cavar queried Australian Unity’s assessment of its costs.
Ms Cavar’s stated concerns were not supported with detail that would justify a conclusion that they were well-founded.
Conclusion
In all the circumstances, there is no adequate basis to conclude that Ms Cavar entered into the deed other than voluntarily and armed with the sort of information that a party should have when considering whether to settle proceedings. Consequently, I find that the deed of release does record an enforceable compromise of the matter. In the interests of completely and finally determining all presently relevant matters and controversies between the parties I order, pursuant to r.13.06(1)(e) of the Court’s Rules, that the proceeding be dismissed.
I also note that as Ms Cavar was not present for the majority of the hearing and as the orders to be made are made in her absence, she may apply under r.17.05(2)(a) of the Rules to have them set aside.
As the application is to be dismissed, Australian Unity has sought an order for its costs. There is nothing in the conduct of this proceeding or anything which has been put to me which suggests that costs should not follow the event as they would in the ordinary course. Australian Unity is content for the costs to be quantified in accordance with the Rules and the relevant figures are to be found in pt 1 of sch 2 to the Rules. Based on items 1 ($3,147), 5 ($7,076), 9(c) ($2,357), plus counsel’s fees, Ms Cavar is to pay Australian Unity’s costs assessed in the amount of $23,140.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 6 October 2022
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