Cavar v Green Gate Management Services Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Cavar v Green Gate Management Services Pty Ltd [2017] FCA 471

Appeal from: Application for leave to appeal:  Cavar v Greengate Management Services Pty Ltd (No 2) [2016] FCCA 3358
File numbers: NSD 102 of 2017
NSD 103 of 2017
Judge: FLICK J
Date of judgment: 10 May 2017
Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – leave refused 
Legislation:

Age Discrimination Act2004 (Cth)

Fair Work Act2009 (Cth) ss 340, 351, 361, 725, 728, 732, 734

Racial Discrimination Act 1975 (Cth)

Cases cited:

Bashour v Victorian Civil and Administrative Tribunal [2016] VSC 527

Cavar v Greengate Management Services Pty Ltd (No 2) [2016] FCCA 3358

Cavar v Green Gate Pty Ltd [2015] FCA 1179

Cavar v St Brigid’s trading as Green Gate Pty Ltd [2015] FCCA 1993

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273

Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108, (1999) 91 FCR 463

Hill v Compass Ten Pty Ltd [2012] FCA 761, (2012) 205 FCR 94

Kirk v Industrial Court of New South Wales [2010] HCA 1, (2010) 239 CLR 531

RailPro Services Pty Ltd v Flavel [2015] FCA 504, (2015) 242 FCR 424

Date of hearing: Determined on the papers
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 26
Counsel for the Applicant: The Applicant was self-represented
Solicitor for the Respondent: Mr T Brett of FBC Workplace Law

ORDERS

NSD 102 of 2017
NSD 103 of 2017
BETWEEN:

CELIA CAVAR

Applicant

AND:

GREEN GATE MANAGEMENT SERVICES PTY LTD

Respondent

JUDGE:

FLICK J

DATE OF ORDER:

10 MAY 2017

THE COURT ORDERS THAT:

1.The Applications for Leave to Appeal are refused.

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

  1. Since about 2014 there has been an ongoing dispute between Ms Celia Cavar and her employer.

  2. That dispute has focussed upon (inter alia) allegations that her employer has acted in breach of contract and contravened the Fair Work Act2009 (Cth) (the “Fair Work Act”) and has discriminated against her in contravention of (inter alia) the Age Discrimination Act2004 (Cth) and the Racial Discrimination Act 1975 (Cth).

  3. In 2015 a judge of the Federal Circuit Court of Australia summarily dismissed Ms Cavar’s proceedings:  Cavar v St Brigid’s trading as Green Gate Pty Ltd [2015] FCCA 1993. Leave to appeal from that decision was allowed (in part) and the matter was remitted to the Federal Circuit Court for re-hearing: Cavar v Green Gate Pty Ltd [2015] FCA 1179. The grant of leave to appeal was confined to the claim for relief under the Fair Work Act.

  4. The Federal Circuit Court has since re-heard…

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Details
Case
[2017] FCA 471
Decision Date

CaseChat Overview and Summary

The Federal Circuit Court was presented with an application for leave to appeal from Ms. Cavar against decisions previously made by the court. The disputes involved Ms. Cavar’s claims under the Fair Work Act and her "human rights proceeding", both of which had been summarily dismissed. The Federal Circuit Court had previously considered and dismissed these claims, and Ms. Cavar sought to appeal this decision.

The legal issues before the court were whether the previous decisions of the Federal Circuit Court warranted an appeal and whether the applicant should be granted leave to appeal. The court was tasked with determining whether there were grounds for an appeal, considering the merits of Ms. Cavar's claims and the arguments presented. The court had to weigh the importance of the legal questions involved and the potential impact of an appeal on the proceedings.

The court found that there were no grounds to grant leave to appeal. It concluded that the previous decisions of the Federal Circuit Court were correctly made, and there was no error in law or procedure that warranted an appeal. The court emphasised that appeals should not be granted if they have no reasonable prospect of success or if they are not in the interests of justice. Given the court's previous findings and the arguments presented, it determined that the application for leave to appeal should be refused. The court also ordered that the applicant pay the costs of the respondent.

Accordingly, the court's orders were that the applications for leave to appeal were refused, and Ms. Cavar was ordered to pay the costs of the respondent. This decision upheld the previous rulings of the Federal Circuit Court and emphasised the importance of the criteria for granting leave to appeal in Australian courts.

Orders

Orders of the court

1. The Applications for Leave to Appeal are refused.

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

The application for leave to appeal from this decision of that Judge is also refused. CONCLUSIONS Leave to appeal from the second decision of the Federal Circuit Court – whereby the Judge again summarily dismissed Ms Cavar’s claims made under the Fair Work Act consequent upon that proceeding having been remitted to that Court for further consideration – is refused. Leave to appeal is also refused from the decision of the Federal Circuit Court whereby that Judge dismissed Ms Cavar’s “human rights proceeding”. THE ORDERS OF THE COURT ARE: 1. The Applications for Leave to Appeal are refused.2. The Applicant is to pay the costs of the Respondent.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.