Cavar v Green Gate Pty Ltd

Case [2015] FCA 1179


FEDERAL COURT OF AUSTRALIA

Cavar v Green Gate Pty Ltd [2015] FCA 1179

Citation: Cavar v Green Gate Pty Ltd [2015] FCA 1179
Appeal from: Application for leave to appeal from: Cavar v St Brigid’s t/a Green Gate Pty Ltd [2015] FCCA 1993
Parties: CELIA CAVAR v GREEN GATE PTY LTD
File number: NSD 925 of 2015
Judge: FLICK J
Date of judgment: 3 November 2015
Catchwords: PRACTICE AND PROCEDURE – summary dismissal – failure to consider relevant principles – application for leave to appeal granted
Legislation: Fair Work Act 2009 (Cth), ss 341, 361
Federal Court of Australia Act1976 (Cth), s 24(1A)
Federal Circuit Court Rules2001 (Cth), r 13.10
Cases cited:

Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352, (2006) 236 ALR 720
Cavar v Nursing Australia [2012] FCA 338
Cavar v St Brigid’s t/a Green Gate Pty Ltd [2015] FCCA 1993
Creditors of Antal-Air Pty Ltd v Antal-Air Pty Ltd [2004] FCAFC 303, 51 ACSR 473
Embertec Pty Ltd v Energy Efficient Technologies Pty Ltd (No 2) [2013] FCA 347
Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117, (2009) 178 FCR 401
Michael Wilson & Partners Limited v Nicholls [2011] HCA 48, (2011) 244 CLR 427
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Nyoni v Chee Koon Hee (No 2) [2014] FCA 83
Rawson Finances Pty Ltd v Commissioner of Taxation [2010] FCAFC 139, (2010) 81 ATR 36
Sebel Furniture Ltd v Acoustic & Felts Pty Ltd (No 2) [2009] FCA 291
Shaw v Australian Pump Industries Pty Ltd [2015] FCA 547

Spencer v Commonwealth [2010] HCA 28, (2010) 241 CLR 118

Date of hearing: 3 November 2015
Place: Sydney
Division: FAIR WORK DIVISION
Category: Catchwords
Number of paragraphs: 34
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Mr T Glover
Solicitor for the Respondent: FCB Workplace Law

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 925 of 2015

BETWEEN:

CELIA CAVAR
Applicant

AND:

GREEN GATE PTY LTD
Respondent

JUDGE:

FLICK J

DATE OF ORDER:

3 NOVEMBER 2015

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Application for leave to appeal is granted but confined to the grant of leave to appeal in respect to the summary dismissal of the Applicant’s claim for relief pursuant to the Fair Work Act 2009 (Cth).

2.The appeal is allowed in respect to the Applicant’s claim for relief pursuant to the Fair Work Act 2009 (Cth).

3.The Application for leave to appeal is otherwise dismissed.

4.The proceeding is remitted to the Federal Circuit Court of Australia for re-consideration in accordance with these reasons.

5.There be no order as to costs.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 925 of 2015

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AGLC
Cavar v Green Gate Pty Ltd [2015] FCA 1179
Case
[2015] FCA 1179
Decision Date

CaseChat Overview and Summary

In Cavar v Green Gate Pty Ltd, the applicant sought leave to appeal against the summary dismissal of her claim for relief under the Fair Work Act 2009 (Cth) by the Federal Circuit Court of Australia. The applicant, unrepresented and anxious, referred to additional evidence regarding the reasons for her termination of employment during the hearing of the application for leave to appeal. The applicant argued that the Federal Circuit Court failed to consider this evidence before summarily dismissing her claim.

The central legal issue was whether the Federal Circuit Court erred in summarily dismissing the applicant’s claim for relief under the Fair Work Act without considering the additional evidence the applicant sought to call. The Court had to determine whether the applicant's circumstances justified a departure from the usual rules of procedure and whether the Federal Circuit Court should have considered the additional evidence before making its decision.

The Court held that the additional evidence the applicant referred to was not immediately relevant to the application for leave to appeal but could support a conclusion about the appropriateness of the summary dismissal. The Court rejected the application to reconstitute itself and to restrain a party from further participation in the proceeding. However, the Court granted the application for leave to appeal, confined to the summary dismissal of the applicant’s claim for relief under the Fair Work Act. The Court allowed the appeal in respect to this claim and remitted the proceeding to the Federal Circuit Court for reconsideration in accordance with the Court's reasons.

The Court's orders included granting leave to appeal confined to the summary dismissal of the applicant's claim under the Fair Work Act, allowing the appeal in respect of this claim, dismissing the application for leave to appeal in all other respects, remitting the proceeding to the Federal Circuit Court for reconsideration, and making no order as to costs.

Orders

Orders of the court

1. The Application for leave to appeal is granted but confined to the grant of leave to appeal in respect to the summary dismissal of the Applicant’s claim for relief pursuant to the Fair Work Act 2009 (Cth).

2. The appeal is allowed in respect to the Applicant’s claim for relief pursuant to the Fair Work Act 2009 (Cth).

3. The Application for leave to appeal is otherwise dismissed.

4. The proceeding is remitted to the Federal Circuit Court of Australia for re-consideration in accordance with these reasons.

5. There be no order as to costs.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

During the course of the hearing of the application for leave to appeal, Ms Cavar referred to further evidence she would seek to call in respect to her claim under the Fair Work Act. That further evidence was said to be directed to the reasons for the termination of her employment. It was said to be contained within a conversation that took place shortly before the hearing of the matter by the Federal Circuit Court Judge. The fact that Ms Cavar was unrepresented, and her understandable anxiety regarding the imminent hearing, were relied upon by her as reasons why she did not foreshadow before that Court the desire to call this additional evidence. Such additional evidence, with respect, assumes no immediate relevance to the application for leave to appeal. It may, perhaps, support a conclusion as to the inappropriateness of ordering the summary dismissal of a claim without examining with some care the available evidence. CONCLUSIONS The application for the Court to be reconstituted is rejected. So, too, is the application for an order restraining Mr Brett from further participation in the proceeding. The application for leave to appeal is dismissed, other than in respect to the grant of leave to appeal confined to the claim alleging “adverse action”. If leave to appeal were to be granted, the Respondent quite properly did not oppose an order being made that the appeal be allowed instanter and the matter remitted to the Federal Circuit Court confined to the resolution of the claim in respect to “adverse action”. It would remain a matter for that Court to determine the manner in which that claim, or any further interlocutory application, should be resolved and the evidential basis upon which it should proceed. Ms Cavar will, presumably, urge upon the Federal Circuit Court Judge that such additional evidence as she referred to before this Court should also be taken into account. But that, again, is a matter for the Federal Circuit Court Judge to resolve. THE ORDERS OF THE COURT ARE:1.The Application for leave to appeal is granted but confined to the grant of leave to appeal in respect to the summary dismissal of the Applicant’s claim for relief pursuant to the Fair Work Act 2009 (Cth).2.The appeal is allowed in respect to the Applicant’s claim for relief pursuant to the Fair Work Act 2009 (Cth).3.The Application for leave to appeal is otherwise dismissed. 4.The proceeding is remitted to the Federal Circuit Court of Australia for re-consideration in accordance with these reasons.5.There be no order as to costs.

Ratio Decidendi

Legal Principle Established

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