Cavar v Australian Unity Home Care Services (No 5)

[2022] FedCFamC2G 1051

Federal Circuit and Family Court of Australia

(DIVISION 2)

Cavar v Australian Unity Home Care Services (No 5) [2022] FedCFamC2G 1051  

File number(s):	SYG 1822 of 2021
Judgment of:	JUDGE CAMERON
Date of judgment:	5 December 2022
Catchwords:	PRACTICE AND PROCEDURE – Application to set aside summary dismissal – relevant considerations – application refused.
Division:	General
Number of paragraphs:	18
Date of hearing:	5 December 2022
Place:	Sydney
For the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr G. Gee
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:	5 DECEMBER 2022

THE COURT ORDERS THAT:

1.The applicant’s application in a proceeding filed 28 October 2022 be dismissed.

2.The applicant pay the respondent’s costs fixed in the amount of $13,042.00.

3.The respondent has liberty to apply until 27 January 2023.

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

1. On 30 September 2021, this proceeding was commenced by the applicant, Ms Cavar.  She sought relief in relation to an unsuccessful application for employment with the respondent, Australian Unity Home Care Services.  The matter came on for final hearing on 1 September 2022 when it was dismissed on effectively a summary basis because I was satisfied that the parties had reached a binding compromise of the case.  As my reasons on that day record, Ms Cavar left the hearing fairly shortly after it commenced and not long after the application for judgment based on the settlement was sought. 

2. Ms Cavar has now filed an application in a proceeding pursuant to r.17.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), seeking an order setting aside the judgment entered on 1 September 2022.  In support of her application, Ms Cavar relies on an affidavit she swore on 20 October 2022 which is taken to have been filed on 28 October 2022.  In that affidavit, Ms Cavar sets out some evidence and some arguments in support of today’s application. 

3. For the reasons which follow, the application to set aside the order made on 1 September 2022 will be dismissed. 

   Consideration

4. Whether to set aside an order is a discretionary matter and there are no obligatory considerations that are relevant to that determination.  In this case, I find that the matters which are appropriate for consideration are:

   (a)whether Ms Cavar has provided a satisfactory explanation for her failure to remain in court on 1 September 2022; and

   (b)whether it is in the interests of the administration of justice that the judgment be set aside and the matter reheard.

5. The explanation for leaving the hearing on 1 September 2022 advanced by Ms Cavar today and in her affidavit is that she was, in effect, ambushed by the application for summary judgment. As far as I can tell, this had to do with documents with which she was unfamiliar and which she says caused some blood pressure‑related health condition, leading to her early departure.  It might be noted in that connection that although Ms Cavar may not, before 1 September 2022, have seen the affidavit on which the respondent relied on that occasion, the documents annexed to it would have come as no surprise. Ms Cavar has also submitted that she is hard of hearing.

6. There is no evidence, other than the display of Ms Cavar’s hearing aid box at the bar table today, that Ms Cavar had medical conditions which prevented her from dealing with the hearing on 1 September 2022.  Most particularly, there is no medical evidence to the effect that being presented with an instanter application for summary dismissal would have caused some blood pressure‑related health crisis which necessitated Ms Cavar’s departure at the end of an exchange that was recorded in the transcript of the hearing on the last occasion – which was exhibit 1 in this proceeding – as follows:   

   ...

   MS CAVAR: It is – I don’t accept deed of release. I changed my mind, and I compromised and I cancelled, and I cannot accept that offer, because I was doing under pressure and threatening of the court cost of $150,000. And now you telling me respond in a minute of what is not. I have still good memory, and I can’t remember what I said, but this is not fair to us – respond in a minute to an entire document.

   HIS HONOUR:          You can have some more time if you like.

   MS CAVAR:              Yes, how more time?

   HIS HONOUR:          Well, what do you need?

   MS CAVAR: Your Honour, I am too passionate. I got depression and anxiety because of a practice like this one, and enforcement and pushing and pushing. This is not fair, and I wrote it in my objection – that I will try to come on the hearing. If I cannot handle, I will leave, and you decide on the paper. You decide on the paper.

   HIS HONOUR:          Would you like a little bit more time to contemplate what’s in the affidavit so that you can tell me - - -

   MS CAVAR: No, I don’t want, because I cannot accept it a filed document – as a valid document – because it’s not my intention to accept that offer.

   HIS HONOUR:          Well, ma’am, it doesn’t matter whether you accept or you don’t.

   MS CAVAR: But that’s a matter of – you’re judge. Are you administrating justice, or are you - - -

   HIS HONOUR:          Yes.

   MS CAVAR:              - - - administrating favour? Just tell me.

   HIS HONOUR:          I’m just - - -

   MS CAVAR: I am a victim of organised crime. I’m asking damages. I’m unemployed three years. They doing behind my back or every times in this case like this one, and especially ethnic groups, and they are alliance – like solicitor, like manager, like – whatsoever. So I have to suffer and be unemployed until my retirement, and I have to accept affidavit in a – no way. Decide on the paper, and I don’t care. I’m going to file appeal.

   HIS HONOUR:          I do hope you haven’t damaged that microphone, Ms Cavar, when you threw that paper down.

   MS CAVAR:              Go away from me.

   HIS HONOUR:          I note for the transcript that Ms Cavar has left the courtroom.

   ...

   That portion of the transcript gives no support to the submissions made today by Ms Cavar about a health crisis on 1 September 2022 and I am not persuaded by them.

7. I accept that Ms Cavar is hard of hearing. She said that she found it difficult to hear what counsel for the respondent on the last occasion, Ms Sweet, was saying.  But the transcript evidences no problems of that sort, nor do I have any recollection of Ms Cavar manifesting such difficulties.  I also have no recollection of Ms Cavar asking Ms Sweet to either slow down or speak up.

8. I am not persuaded that Ms Cavar has provided a satisfactory explanation for absenting herself from the hearing on 1 September 2022.

9. As to whether there would be merit in setting aside the order of 1 September 2022, Ms Cavar submitted that she had not consented to the respondent executing the deed of release by an attorney, which she said made the agreement totally different.  Ms Cavar has told the Court today she struck out that part of her copy of the deed that referred to execution by an attorney.  Ms Cavar also described the attorney as a party to the proceeding and that she could not settle with somebody who was not a party to the proceeding, or something of that sort.  Ms Cavar further submitted that although she had executed the deed, she objected to exchanging a signed notice of discontinuance, as provided for by the deed, in exchange for a cheque for $5,000, also provided for by the deed, on the basis that she could not be certain at the point of exchange whether the cheque would be met upon presentation. 

10. I am willing to assume, based on what Ms Cavar has said today and on common practice, that she was provided with a blank copy of the deed of release and asked to execute it as her counterpart and that it was not until some time later that she first saw the counterpart executed by the respondent by way of its attorney.  It has not been suggested that the two counterparts were different in substance or that Ms Cavar did not know what she was agreeing to.  The criticism that she makes of the respondent executing its counterpart by an attorney is misplaced.  The respondent was perfectly free to execute the document in that way, and it was not – subject to authorities to which I have not been taken and of which I am unaware – within the power of one party to an instrument to direct the other party how they may execute a deed or a contract, and certainly not after they had already signed it themselves, as seems to have been the case here.  Nor is it suggested that the parties could not execute the document in counterparts.  More generally, Ms Cavar has adduced no evidence today which in my view casts any doubt on the validity of the deed of release’s execution by the parties. 

11. The other aspect of Ms Cavar’s argument was that she had been pressured into signing the deed.  I would not be surprised that the quantification of the respondent’s costs in the letter of offer, which attached a draft copy of the deed and to which reference was made in my reasons of 1 September 2022, would have given Ms Cavar pause for reflection. However, accepting, as I do, that those costs were in fact incurred and expressed on a solicitor and client basis, reflection would have been quite an appropriate response.  It has not been suggested that the quantification in that letter was unreasonable or fictional in some way and, as counsel for the respondent noted today, it is an issue I dealt with on the last occasion.  Whatever impelling quality the respondent’s solicitors’ letter enclosing the draft deed of release might have had upon Ms Cavar’s mind, I do not accept that it was illegitimate or amounted to improper pressure. 

12. It should also be noted, as counsel for the respondent did today, that on the last occasion, as recorded by the transcript, Ms Cavar admitted that she had changed her mind in relation to the deed, and much the same seems to be the conclusion to be drawn from what Ms Cavar said today.  She interjected when counsel for the respondent was making an observation to that effect, saying:

    That’s true.

    Ms Cavar went on to say that she had changed her mind when she could not verify the cheque. 

13. I am not persuaded that anything that Ms Cavar might have said on the last occasion would have altered matters because she has not advanced anything today which suggests that the conclusion I reached on the last occasion was erroneous. 

    Conclusion

14. With all respect to Ms Cavar and taking into account the fact that she is a litigant‑in‑person, I am not persuaded by any of her arguments.

15. In the circumstances, I think that the interests of the administration of justice do not favour an order setting aside the judgment made on the last occasion and so the present application in a proceeding will be dismissed.

    Costs

16. As the application is to be dismissed, the respondent 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 the costs should not follow the event as they would in the ordinary course. 

17. The respondent has sought costs in accordance with items 3 and 9(b) of the scale, together with counsel’s fees as disbursements.  On my calculations, those items amount to $13,042 and there will be an order that the applicant pay the respondent those costs.

18. I grant the respondent liberty to apply by 27 January 2023. 

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       15 December 2022