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
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:
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…
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- Case
- [2024] FCA 1285
- Decision Date
CaseChat Overview and Summary
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
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]).