Cavar v Heckenburg Protection Agency
[2021] FedCFamC2G 103
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cavar v Heckenburg Protection Agency [2021] FedCFamC2G 103
File number(s): SYG 1823 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 25 February 2022 Catchwords: CONSUMER LAW – CONSUMER PROTECTION – application for default judgment – whether the Court has the power to grant default judgment –substantive application vexatious and an abuse of process – application is dismissed. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.05
Competition and Consumer Act 2010 (Cth) s 31
Fair Work Act 2009 (Cth)
Cases cited: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 Division: Division 2 General Federal Law Number of paragraphs: 24 Date of last submission/s: 18 February 2022 Date of hearing: 18 February 2022 Place: Parramatta Counsel for the Applicant: The Applicant appeared in person. Counsel for the Respondent: There was no appearance on behalf of the Respondent. ORDERS
SYG 1823 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CELIA CAVAR
Applicant
AND: HECKENBURG PROTECTION AGENCY ABN 68 624 479 750
Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
25 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a self-represented litigant. The applicant is well known to this Court.
In an Originating Application filed with the Court on 30 September 2021, the applicant seeks the following orders based on the following alleged contraventions of various Acts verbatim:
Final orders sought by applicant
•Order for compensation for damages in total of : $72.000.0 which involves:
(a)Compensation in amount for damages-loss of wages and amount of $52.000.00 for 2 consecutive years.
(b)Order for compensation in amount of $20.000 for harassment and coercion occurred by respondent.
•Criminal charges/ penalty imposed on respondent and his manager [name] for contravention of his criminal conduct, misleading and deceptive conduct.
Grounds of application
•Section 31 of Competition and Consumer Act 2010 for misleading and deceptive conduct by respondent in relation to applicant’s employment.
•Schedule 2 of Australian Consumer Law, Chapter 3 Specific Protections related to Unfair Practices and False and misleading representation.
•General protection teh applicant’s is seeking under section 18 of Australian Consumer Law because of respondent’s misleading and deceptive conduct.
•Criminal conduct/ penalty for committed offence pursuant to section 225 (1)(5) of National Consumer Credit Protection Act 2009 for false and misleading documents/invoices, duplicated and abuse of applicant’s security license and for misleading and deceptive conduct by respondent in relation to fictive applicant employment whith its company.
•Unfair practice by respondent for his false/misleading allegations related to applicant’s employment absolutely unknown and discovered on 27 July 2021.
•Using harassment and coercion to applicant’s alleged fictive employment by respondent.
•Unconscionalbe conduct by respondent with deception for collection of all applicant’s details for his private purpose of placement other person instead.
On 7 February 2022, following a direction by the Court, Ms Cavar filed an Affidavit of Service swearing that she served the Originating Application upon the respondent on 4 October 2021 and again on 4 February 2022 by posting the application by registered post the registered office of the respondent at 314/850 Bourke Street, Waterloo NSW 2017. Based on the Affidavit of Service, together with additional information contained in an Affidavit of the applicant affirmed 15 September 2021, the Court is satisfied that the respondent has been properly served with the Originating Application.
To date, no Notice of Address for Service or other Response has been filed by the respondent with the Court. The respondent has not appeared on any of the dates when the matter was in Court.
On 4 February 2022, the applicant filed an Application in a Case seeking the transfer of the matter to the Federal Court. The applicant determined not to proceed with that application and, instead, made an oral application to the Court for default judgement against the respondent.
Division 13.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”) governs the requirements for the making of default judgement. The Court is satisfied for the purposes of r 13.04(2)(b)(i) of the Rules that the respondent is in default in that having been served with the Originating Application, having not filed a Notice of Address for Service before the time for filing an address has expired.
Rule 13.05 of the Rules sets out the orders that the Court may make upon being satisfied that the respondent is in default. These include relevantly at r 13.05 (2)(c) of the Rules:
(c) if the proceeding was started by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings--give judgment against the respondent for the relief that:
(i) the applicant appears entitled to on the statement of claim; and
(ii)the Court is satisfied it has power to grant;
EVIDENCE RELIED UPON BY THE APPLICANT IN SUPPORT OF HER CLAIM
The only evidence that the applicant seeks to rely upon in support of her claim is an Affidavit filed with the Court, affirmed 25 September 2021. The applicant’s evidence may be summarised as follows:
•The applicant is a registered security guard. In March 2019 she commenced employment with a company called Nova Security Group on a casual basis.
•The applicant claimed she only ever worked for the Nova Security group. She was paid cash in hand on the basis $25 per hour for each hour worked at the Nova Security office at Liverpool.
•On 27 July 2021, the applicant claims that she received a document indicating that she was employed by the Heckenberg Group Pty Limited. The document is entitled Master Security Licence and shows that the applicant had a class I unarmed guard and class IC crowd controller security licence for the period 16 March 2018 215 May 2024 apparently with Heckenberg. The documents relied upon are apparently taken from a NSW government public register.
•The applicant also annexes a tax invoice from the Heckenberg Group Pty Ltd to the Nova Security Group indicating that the applicant worked for a total of six hours during the period 19 October 2020 to 25 October 2020 in which Heckenberg charged the Nova the amount of $180. An amount of the bottom of document shows that an amount of $9966 is due to the Heckenberg group from Nova. A large amount of that document is blanked out presumably as it relates to other persons.
•There is a further tax invoice dated 11 October 2021 showing the applicant worked for a period of 4.25 hours at a rate of $30 per hour. The applicant claims these invoices are fictitious, but does not provide any evidence to support that clam
•Ms Cavar claims that a security licence has been duplicated and misused by the respondent. She claims she never received an amount of $9966. She claims that the respondent “does misleading and deceptive conduct in relation to my employment that company, he does unfair practice, he made unconscionable conduct, he does harassment. False allegations in making fictive(sic) invoices and making falsification of my security licence are serios (sic) criminal offences.”
•Annexed to the applicant’s affidavit is various information regarding shifts that she was to work including text messages, pay slips and copies of bank statements in her name. There is also a complaint to the NSW police alleging her security licence has been fabricated or duplicated.
•In a statement also attached to the affidavit, after outlining the history of her complaints, Ms Cavar states as follows:
So, my case sounds as organised international crime behind my back or on my behalf, which I never committed, and I am confident now why I lost my sister, one innocent lovely decent woman.
The last comment apparently relates to the death of Ms Cavar’s sister in November 2018.
IS THE APPLICANT ENTITLED TO THE ORDER SHE SEEKS?
The evidence relied upon by the applicant to support her claims are disjointed, unclear and misconceived. The applicant appears to come to conclusions that are simply unsupportable on the material supplied.
The first order that the applicant seeks is compensation in an amount for either damage or loss of wages in the sum of $52,000. The applicant further seeks compensation in the amount of $20,000 for harassment and coercion.
The basis upon which the applicant claims that she is entitled to the equivalent of two years wages by her calculations, or $52,000 is entirely unclear. On the applicant’s own evidence, she was paid an amount of $25.00 per hour for the work that she performed. No allegation has been made of any breach of the Fair Work Act 2009 (Cth) (“the Act”) for unfair dismissal, underpayment of wages or other entitlements or any other breach which might be actionable within this Court. At best, the applicant was employed on a casual basis as a security guard for which, it appears, she was paid in full.
Similarly, the basis in claiming damages in the amount of $20,000 for harassment and coercion is also completely unclear. None of the evidence relied upon gives rise, in the Court’s view, to any basis for a claim of harassment and coercion.
In terms of the specific legislative provisions the applicant relies upon each is entirely misconceived. Each is without particulars as to the basis upon which the alleged breaches are founded. A claim consisting of a bland assertion without particulars in my view is liable for that reason alone: (see; WZAVW v Minister for immigration and Border Protection [2016] FCA 760 at [35] in the case of judicial review in migration matters.)
The applicant first relies upon s 31 of the Competition and Consumer Act 2010 (Cth).
This section reads as follows:
Qualifications of members of Tribunal
(1) A person shall not be appointed as a presidential member of the Tribunal unless he or she is a Judge of a Federal Court, not being the High Court or a court of an external Territory.
(2) A person shall not be appointed as a member of the Tribunal other than a presidential member unless he or she appears to the Governor-General to be qualified for appointment by virtue of his or her knowledge of, or experience in, industry, commerce, economics, law or public administration.
Reliance upon s31 of the Competition and Consumer Act 2010 is entirely misconceived.
The applicant next relies upon Schedule 2 of the Australian Consumer Law, Chapter 3 Specific Protections related to Unfair Practices and Misleading Representations, and General Protections under s 18 of the Australian Consumer Law. As the applicant was not a ‘consumer’, reliance on this legislation is similarly misconceived.
The applicant next submits that the respondent has committed offences pursuant to
s 225(1)(5) of the National Consumer Credit Protection Act 2009 (Cth) for false and misleading documents/invoices in relation to “fictive” employment with the respondent. Again, The applicant’s assertions are entirely misplaced. There is an inference that Heckenberg held a Master Security Licence and sub-contracted Nova Security to undertake work on its behalf. The invoices appear to be between these two parties. The applicant’s employment relates only to Nova, for which she admits that she was paid in full at her agreed rate for work done.
The next three assertions relate to unfair practice related to the applicant’s employment, using harassment and coercion related to the applicant’s employment and unconscionable conduct for the collection of her details.
Again, the precise basis of these assertions is entirely unclear, let alone how they would justify an award of damages of $20,000. No particulars have been provided of any harassment or coercion. No details have been provided of the basis upon which the applicant says her employment contract with Nova specifically prohibited them from undertaking sub-contract work with Heckenberg and prohibited them under that sub-contract from providing details as to the security licence qualifications of its employees.
The Court is not satisfied on the basis of the evidence relied upon by the applicant that she has made out any of her claims such that the Court has the power to grant the relief sought pursuant to r 13.05 of the Rules.
The claims are a jumble of misconceived assertions not supported by any law or evidence such as to warrant intervention by the Court even on a default judgement basis. The claims are vexatious. It would be an abuse of process to give judgement for the relief claimed.
CONCLUSION
Accordingly, the application is dismissed. As the respondent has not appeared there is no order as to costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Deputy Associate:
Dated: 25 February 2022
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