Cavar v Australian Unity Home Care Services Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Cavar v Australian Unity Home Care Services Pty Ltd [2024] FCA 1285  

Appeal from: Cavar v Australian Unity Home Care Services Pty Ltd [2024] FCA 609
File number(s): NSD 867 of 2024
Judgment of: NEEDHAM J
Date of judgment: 8 November 2024
Catchwords:

PRACTICE AND PROCEDURE – application for extension of time to file application for leave to appeal – no evidence of “incorrect instructions” given by Registry – attempt to file special leave application instead – explanation not given for whole of period of delay

PRACTICE AND PROCEDURE – application for leave to appeal – no prospects of success of grounds of appeal – application dismissed.   
Legislation:

Competition and Consumer Act 2010 (Cth) sch 2, ss 18, 27, 31

Fair Work Act 2009 (Cth)

Federal Court of Australia Act 1976 (Cth) ss 24(1A), 26(1)(a), 31A(2)(b), 33(2)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 13.06(1)(e)

Federal Court Rules 2011 (Cth) rr 26.01(1)(d), 35.13(a), 35.14, 35.18
Cases cited:

Cavar v Australian Unity Home Care Services (No 4) [2022] FedCFamC2G 824

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

Cavar v Australian Unity Home Care Services Pty Ltd [2023] FCA 387

Deputy Commissioner of Taxation v Miraki [2022] FCAFC 96

Finch v The Heat Group (No 3) [2017] FCA 64

Krajniw v Hunt [2017] FCA 483

Quach v Australian Health Practitioner Regulation Agency (Extension of Time) [2023] FCA 578

Russel v Macquarie Bank Ltd [2020] FCA 1332

Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802
Division: Fair Work Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 37
Date of hearing: Determined on the papers
Counsel for the Applicant: Applicant was self-represented
Counsel for the Respondent: Mr G Gee
Solicitor for the Respondent: Hall & Wilcox

ORDERS

NSD 867 of 2024
BETWEEN:

CELIJA (CELIA) CAVAR

Applicant
AND:

AUSTRALIAN UNITY HOME CARE SERVICES PTY LTD

Respondent

ORDER MADE BY:

NEEDHAM J

DATE OF ORDER:

8 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The application for extension of time for filing an application for leave to appeal, and the application for leave to appeal, dated 3 July 2024, is dismissed.

2.The applicant is to pay the costs of the respondent.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

NEEDHAM J:

  1. On 3 July 2024, the applicant, Ms Cavar, filed an application for extension of time and leave to appeal from the interlocutory decision of Cavar v Australian Unity Home Care Services Pty Ltd [2024] FCA 609 (the primary judgment).

    Procedural background

  2. In June 2021, Ms Cavar was offered a contract of employment, conditional on completion of background checks by Australian Unity Home Care Services (Australian Unity). Australian Unity later withdrew the offer of employment. Ms Cavar filed an application in the Federal Circuit Court of Australia (as it was then) on 30…

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Details
Case
[2024] FCA 1285
Decision Date

CaseChat Overview and Summary

The applicant, Ms Cavar, filed an application for an extension of time and leave to appeal from the interlocutory decision in Cavar v Australian Unity Home Care Services Pty Ltd [2024] FCA 609, which dismissed her claims against the respondent, Australian Unity Home Care Services. The primary judgment involved a dispute over an employment offer contingent on background checks, which was later withdrawn. Ms Cavar alleged misleading and deceptive conduct, unfair practices, harassment, coercion, and unconscionable conduct under the Competition and Consumer Act 2010. The matter was settled by a Deed of Release, which was contested by Ms Cavar on the basis of undue pressure. The Federal Circuit and Family Court dismissed the proceedings with costs, and Ms Cavar sought an extension of time and leave to appeal this decision.

The legal issues before the court were whether an extension of time should be granted for filing an application for leave to appeal and whether there were any prospects of success for the grounds of appeal. The court considered that Ms Cavar had not provided a satisfactory explanation for the delay in filing her application for leave to appeal, as she had intended to file an application for special leave to appeal to the High Court instead. There was no evidence of incorrect instructions from the registry, and Ms Cavar’s explanation did not account for the entire period of delay. The court also considered whether there were any prospects of success for the appeal, given the terms of the Deed of Release and prior decisions that were against Ms Cavar.

The court reasoned that while the respondent accepted that there was a satisfactory explanation for the delay, the applicant’s intent to file an application for special leave to appeal was not a valid reason for the delay in seeking leave to appeal in the Federal Court. The court found that Ms Cavar had not provided a satisfactory explanation for the whole period of delay and that the application was also unlikely to succeed. The court concluded that there was no injustice in enforcing the time limit and that the application should be dismissed. The court also noted that Ms Cavar's allegations of corrupt conduct and favouritism towards the respondent were unsubstantiated.

The court dismissed the application for extension of time and leave to appeal. The applicant was ordered to pay the respondent’s costs. The decision was based on the lack of a satisfactory explanation for the delay, the absence of prospects of success for the appeal, and the terms of the Deed of Release.

Orders

Orders of the court

1. The application for extension of time for filing an application for leave to appeal, and the application for leave to appeal, dated 3 July 2024, is dismissed.

2. The applicant is to pay the costs of the respondent.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 3 July 2024, the applicant, Ms Cavar, filed an application for extension of time and leave to appeal from the interlocutory decision of Cavar v Australian Unity Home Care Services Pty Ltd [2024] FCA 609 (the primary judgment).Procedural background In June 2021, Ms Cavar was offered a contract of employment, conditional on completion of background checks by Australian Unity Home Care Services (Australian Unity). Australian Unity later withdrew the offer of employment. Ms Cavar filed an application in the Federal Circuit Court of Australia (as it was then) on 30 September 2021 alleging that the respondent had engaged in misleading and deceptive conduct in contravention of ss 18 and 31 of the Competition and Consumer Act 2010 (Cth) sch 2 (Australian Consumer Law) (ACL), unfair practices and harassment, coercion and unconscionable conduct. On 30 August 2022, a Deed of Release was executed by both parties shortly before the hearing in the Federal Circuit and Family Court of Australia. The Deed of Release provides relevantly as follows (as per [7] of the primary judgment):(a)The respondent was, within five days, to pay the applicant the sum of $5,000 and irrevocably release her from a substantial costs order that had been made in its favour.(b)The applicant was to take all reasonable steps to file a notice of discontinuance with no order as to costs.(c)By cl 3.1:(a)Ms Cavar releases absolutely and forever discharges the Group from all Claims which Ms Cavar may have had, may now have or but for this deed, may have had at any future time against the Group.(b)Ms Cavar agrees to indemnify and keep indemnified the Group from all Claims which may be made by Ms Cavar.(c)Ms Cavar promises not to bring or commence or seek to enforce any Claims in any court, commission, tribunal, or body against the Group which Ms Cavar may have had, may now have or but for this deed, may have had at any future time against the Group.(d)By cl 3.2, the respondent granted similar releases and acknowledged that the deed constituted full and final settlement of all claims which it might have against the applicant.(e)The expression “Claims” was defined broadly:Claims means all actions, applications, arbitrations, causes of action, complaints, costs, damages, debts due, demands, determinations, enquiries, judgements, liabilities, suits, sums of money and verdicts whatsoever and however arising whether at law or in equity or under any statute (including but not limited to the Competition and Consumer Act 2010 (Cth) and the [FW Act])and whether directly or indirectly, from the Employment Contract, the Employment Offer, the Costs Order or the Proceedings but does not include any claim arising under applicable workers’ compensation or superannuation legislation. On 1 September 2022, Judge Cameron dismissed the proceedings with costs pursuant to r 13.06(1)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cavar v Australian Unity Home Care Services (No 4) [2022] FedCFamC2G 824). During that hearing the applicant contested the validity of the Deed of Release, alleging undue pressure by the respondent.

Ratio Decidendi

Legal Principle Established

In her submissions in reply, the applicant reiterates that the primary judge made an error of law and fact, and that the Deed of Release had not been accepted by her, on the same bases as set out above. She also makes allegations, without evidence, that the primary judge’s decision was attended by corrupt conduct and favoured the respondent.Consideration The question of whether an extension of time should be granted is not completely answered by the respondent accepting that there was a satisfactory explanation for the delay. The applicant’s account of the advice she was given by the Registry appears to have been caused by her intent to file an application for special leave to appeal to the High Court. The applicant first sought to file an application for special leave, and filing was rejected pursuant to s 33(2) of the FC Act, which decision was communicated to her on 26 June 2024 (i.e., out of time for her to file a leave to appeal application to this Court). The applicant asked the Registrar to review her decision. The Registry of the High Court replied on 1 July 2024 stating that “there is no avenue of appeal to the High Court directly from the judgment given by [the primary judge]”. In her submissions, the applicant says that she was “instructed wrongly by staff at the registry giving the Notice of appeal on hand to file within 28 days”. There is no written evidence of this “wrong instruction” and in fact it appears that the applicant was seeking to file in the High Court rather than in this Court. An applicant for an extension of time must provide an explanation for the whole of the delay; see Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20] (Lindgren J). The respondent relied upon the passage quoted above in paragraph [15] from Finch v The Heat Group (No 3) at [33], see also Russel v Macquarie Bank Ltd [2020] FCA 1332 (Thawley J) at [23]–[24], and Krajniw v Hunt [2017] FCA 483 (Logan J) at [3] where the above passage of Pagone J from Finch v the Heat Group (No 3) was referred to with approval. The delay is not in itself significant, and no specific prejudice arising from the delay itself (apart from that alleged by the respondent if leave were to be granted) is pointed to by the respondent. However, the respondent submits that given the application’s lack of any prospects of success, there is no injustice which would arise by strict application of the time limit being enforced. I differ from the respondent in considering that there is a “satisfactory explanation for delay”. However, that point is not significant, given that in any event, the question of extension of time is also dependent on the issue of whether the decision from which leave to appeal is sought is “attended by sufficient doubt” so to render the grant of leave liable to reconsideration by a Full Court. The question is whether any utility would be afforded by extending the time in which to seek leave to appeal. The respondent says that there are no reasonable prospects of the applicant succeeding. This is based on:(a)The terms of the Deed of Release signed by the applicant; and(b)The two prior decisions standing “squarely in the way” of a reconsideration of the validity of the Deed of Release (see primary judgment at [15]).