Cavar v Greengate Management Services Pty Ltd and Cavar v Green Gate Pty Ltd
[2016] FCCA 449
•26 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAVAR v GREENGATE MANAGEMENT SERVICES PTY LTD and CAVAR v GREEN GATE PTY LTD | [2016] FCCA 449 |
| Catchwords: PRACTICE & PROCEDURE – Application for disqualification – actual bias – apprehended bias – relevant considerations. |
| Legislation: Fair Work Act 2009 (Cth) |
| Cavar v St Brigid's trading as Green Gate Pty Ltd [2015] FCCA 1993 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 |
| Applicant: | CELIA CAVAR |
| Respondent: | GREENGATE MANAGEMENT SERVICES PTY LTD |
| File Number: | SYG 106 of 2015 |
| Applicant: | CELIA CAVAR |
| Respondent: | GREEN GATE PTY LTD ABN 94 168 213 259 |
| File Number: | SYG 3351 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 26 February 2016 |
| Date of Last Submission: | 26 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr T. Glover |
| Solicitors for the Respondent: | FCB Workplace Law |
ORDERS
The applicant’s application in a case filed on 22 February 2016 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 106 of 2015
| CELIA CAVAR |
Applicant
And
| GREENGATE MANAGEMENT SERVICES PTY LTD |
Respondent
SYG 3351 of 2015
| CELIA CAVAR |
Applicant
And
| GREEN GATE PTY LTD ABN 94 168 213 259 |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
On 22 February 2016 the applicant, Ms Cavar, filed in each of these proceedings an application in a case inviting me to disqualify myself from hearing these matters further. In particular, Ms Cavar sought an order that the matter be transferred “to competent and without prejudice to judge with appropriate code of conduct and ethics.”
In her affidavit in support and in other material which has been filed in these proceedings, Ms Cavar has alleged that I am prejudiced, racist, corrupt and lacking in ethics. She also believes that on 10 December 2015, at a directions hearing, I said words to the effect that I would not make any settlement in this case and would dismiss her human rights proceedings. The substance of Ms Cavar’s concerns, as expressed in various documents filed in the proceedings and expressed in her address to the Court, was that I would ignore arguments and evidence, that I would not follow the law and that I would find for the respondent.
Apart from the comments said to have been made on 10 December 2015, it is hard to identify what evidence Ms Cavar relies on to support or to give substance to her concerns, other than the interlocutory decision which I made in proceedings SYG 106 of 2015, dismissing those proceedings for the reasons published on 24 July 2015: Cavar v St Brigid's trading as Green Gate Pty Ltd [2015] FCCA 1993. I record and acknowledge that on appeal, Flick J found that I erred in my conclusions concerning Ms Cavar’s allegations relying on provisions of the Fair Work Act 2009.
Ms Cavar would seek to prove that I am biased in fact or that it might be apprehended that I am biased. Actual bias was discussed in the Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 and, in substance, it means that the judge or the decision-maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments might be presented. Other than Ms Cavar’s own perceptions of things, it does not appear to me that any evidence has been adduced upon which the Court or, with respect, another court, which is probably the preferable venue for such an allegation, would conclude that for whatever reason my mind was closed in this case.
Apprehended bias was considered by the High Court in Johnson v Johnson (2000) 201 CLR 488, where the test was described as being whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. In considering whether one should disqualify oneself from further hearing of a matter because a concern regarding an apprehension of bias has been raised, a judge ought not forget that his or her duty is to hear and decide cases and should not disqualify himself or herself without good reason.
In relation to the comments said to have been made by me on 10 December 2015, I cannot recall having said anything of the sort Ms Cavar asserts and counsel for the respondent submitted to the Court that his instructing solicitor, who was present on the day, had no recollection of such matters either. I should also note that the idea that the Court would not “make any settlement” is nonsensical, it seems to me. Whether a matter settles is a matter for the parties, not the Court, and it is difficult for me to imagine any circumstance involving a case concerning competent parties where consent orders bringing a matter to a conclusion would not be made.
Turning to the decision of July 2015, I do not believe that I expressed in those reasons concluded views on any of the substantive matters in issue in the case or on the credit of any of the potential witnesses. To decide an interlocutory application on the papers, as was the situation in this case, says nothing about how a further interlocutory application or the proceedings as a whole will be determined. That a reasonable lay observer would apprehend the possibility that I would not bring an unprejudiced mind to the resolution of the case, based on an interlocutory decision, which was in many ways a dry analysis based on the papers before the Court at that time, seems to me not very likely. I do not believe that a reasonable lay observer would, in such circumstances, apprehend that I would not bring to the remainder of the proceedings a mind which was open to persuasion.
The applicant’s application that I disqualify myself from the further hearing of these matters will be dismissed.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 4 March 2016
CORRECTIONS
In citation title – delete semicolon and insert “and”.
Paragraph 7 line 6 – delete “Whether” and insert “That”.
Paragraph 7 line 13 – delete “not” before the word “open”.
2
3
2