FEDERAL COURT OF AUSTRALIA
Cavar v Greengate Management Services Pty Ltd [2016] FCA 961
Appeal from: Application for leave to appeal: Cavar v Greengate Management Services Pty Ltd; Cavar v Green Gate Pty Ltd [2016] FCCA 449 File number: NSD 353 of 2016 Judge: BROMWICH J Date of judgment: 18 August 2016 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) – consideration of self-represented litigant where opposing party filed a submitting notice – failure of applicant to identify error justifying grant of leave to appeal despite repeated invitation to do so – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth), ss 24(1A), 32AB
Federal Court Rules 2011 (Cth), r 35.13
Cases cited: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
AXQ15 v Minister for Immigration and Border Protection [2016] FCAFC 73
Cavar v Green Gate Pty Ltd [2016] FCA 82
Cavar v St Brigid’s trading as Green Gate Pty Ltd [2015] FCCA 1993
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Hamodv State of New South Wales [2011] NSWCA 375
Johnson v Johnson [2000] HCA 48; 201 CLR 488
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445
Date of hearing: 20 June 2016 Registry: New South Wales Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 35 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: The Respondent filed a submitting notice save as to costs ORDERS
NSD 353 of 2016 BETWEEN: CELIA CAVAR
Applicant
AND: GREENGATE MANAGEMENT SERVICES PTY LTD
Respondent
JUDGE:
BROMWICH J
DATE OF ORDER:
18 AUGUST 2016
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMWICH J:
Introduction
This is an application for leave to appeal from orders made by a judge of the Federal Circuit Court of Australia, dismissing an application that his Honour disqualify himself from hearing an application for summary judgment brought by the respondent. The hearing before the Federal Circuit Court took place on 26 February 2016, and orders on the interlocutory application were made and reasons given ex tempore the same day. The judgment was subsequently published after revision on 4 March 2016.
The applicant advised me at the hearing of her application in this Court that the hearing of the application for summary judgment before the primary judge proceeded to conclusion, that his Honour reserved his decision, and that judgment had not been delivered at the time of this hearing. At the time of this decision and reasons, the primary judge had not delivered judgment, which is not surprising because giving judgment would be futile if this application succeeded.
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- AGLC
- Cavar v Greengate Management Services Pty Ltd [2016] FCA 961
- Case
- [2016] FCA 961
- Decision Date
CaseChat Overview and Summary
The court examined the material filed by Cavar, including affidavits, annexures, and submissions, but found that Cavar failed to identify any specific errors in the primary judge's reasons for refusing to disqualify himself. The court invited Cavar on multiple occasions to point out which parts of the primary judge’s reasons were in error, but she declined to do so, maintaining that the entire conduct of the primary judge warranted his disqualification. The court concluded that Cavar's argument was based on a misunderstanding of the remittal and transfer decisions made by other judges, and that there was no error in the primary judge’s handling of the case.
Given Cavar's failure to identify any specific errors justifying the appeal, the court dismissed the application for leave to appeal. The court also considered the respondent's request for costs but decided against awarding costs, as the respondent did not seek to be heard on the matter of costs in their favour. The court found that it was not appropriate to award costs against Cavar or to delay the final resolution of the matter.
The final orders of the court were that the application for leave to appeal be dismissed and that there be no order as to costs. The dismissal of the application meant that the primary judge’s decision to not disqualify himself would stand, and Cavar’s appeal was not permitted to proceed.
Orders
Orders of the court
1. The application for leave to appeal be dismissed.
2. 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
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
The applicant also relied upon the application and supporting material filed in the Federal Circuit Court on 22 February 2016 and the judgments and orders of each of Flick J, Katzmann J and Buchanan J.Consideration During the course of the hearing, I asked the applicant on several occasions to identify which parts of which paragraphs of the primary judge’s reasons for refusing to disqualify himself that she asserted were in error, and what that error was. She declined each invitation to make any such identification, asserting in broad terms that it was the entirety of the actions of the primary judge that warranted his disqualification. It follows that I have had to try to discern for myself any proper basis for the applicant’s application for leave to appeal, including any appeal that would result from the success of such an application. I have carefully read the applicant’s draft notice of appeal, two affidavits, all of the annexures to those affidavits, the submissions filed by the applicant in this Court, the documents accompanying those submissions, and the documents described as chronologies filed in this Court in support of this application, together with the “Statement of facts” annexed to the second document described as a chronology. As a result of reading that material, and hearing from the applicant, it is clear that she feels aggrieved by the original decision by the primary judge, in relation to which she had partial success. I accept that the applicant strongly and sincerely believes that the primary judge, having given summary judgment against her in the first proceedings commenced in the Federal Circuit Court, should not have heard any aspect of the remittal matter or the transfer matter, and in particular should not have heard the respondent’s application for summary dismissal of those two proceedings. However strongly and sincerely that belief is held, it remains to be determined whether there was any error on the part of the primary judge in declining to accede to the applicant’s application to disqualify himself. The applicant contended that the effect of the transfer order made by Katzmann J and the granting of leave to appeal and upholding the appeal by Flick J in respect of the FW Act aspect of the proceedings originally commenced in the Federal Circuit Court meant that the primary judge was compelled to list each of those matters for the hearing of her claims for relief. As best as I could ascertain, the applicant was asserting that it was a failure to comply with the orders of those two judges of this Court to list the hearing of the respondent’s summary dismissal application, rather than to list her applications for hearing. In my view that assertion is without foundation and does not indicate any error on the part of the primary judge, much less conduct properly grounding any application for disqualification. This complaint is based on a misunderstanding on the part of the applicant as to what the remittal decision of Flick J and the transfer decision of Katzmann J required take place in the Federal Circuit Court. For the reasons that follow, there was no obligation imposed on the primary judge by any judge of this Court not to hear the summary dismissal applications brought by the respondent.