Cavar v MSS Security Pty Ltd - [2024] FCA 1460

FEDERAL COURT OF AUSTRALIA
Cavar v MSS Security Pty Ltd [2024] FCA 1460

File number(s): NSD 1299 of 2023

Judgment of: GOODMAN J

Date of judgment: 18 December 2024

Catchwords: PRACTICE AND PROCEDURE – strike out and summary judgment application – litigant in person – need to strike a balance between the challenges faced by a litigant in person and a respondent faced with a statement of claim that does not disclose in a comprehensible way the case (or cases) to be met – save for one cause of action, the statement of claim be struck out, with leave to file a further statement of claim if certified by a lawyer

Legislation:
Competition and Consumer Act 2010 (Cth), sch 2, ss 27, 236

Fair Work Act 2009 (Cth)

Federal Court of Australia Act 1976 (Cth), s 37M

Federal Court Rules 2011 (Cth), rr 16.01, 16.21

Cases cited:
Reurich v Shoalhaven Heads Bowling and Recreational Club Ltd [2020] FCA 427

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Division: Fair Work Division

Registry: New South Wales

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 22

Date of last submission/s: 9 July 2024

Date of hearing: 20 June 2024

Solicitor for the Applicant: The applicant did not appear at the hearing, but made subsequent written submissions by leave

Counsel for the Respondent: Ms N Campbell

Solicitor for the Applicant: Ms P Sena, in-house counsel for the respondent
ORDERS

NSD 1299 of 2023

BETWEEN:
CELIJA (CELIA) CAVAR

Applicant

AND:
MSS SECURITY PTY LTD (ABN 29 100 573 966)

Respondent

ORDER MADE BY:

GOODMAN J

DATE OF ORDER:

18 DECEMBER 2024

THE COURT ORDERS THAT:
1.The following paragraphs of the statement of claim filed on 7 November 2023 be struck out:
(a)paragraph 6;
(b)paragraph 7;
(c)paragraph 8, with the exception of:
(i)subparagraph (c);
(ii)the following words in subparagraph (n): “The applicant claiming damages” and “for breach of the applicant’s contract in terms of his 38 hours per week with 12 hours shift reducing his weekly hours for 24 hours per week only since 14 August 2023”;

(d)paragraph 9; and
(e)paragraph 10.

2.The applicant have leave to file and serve a further statement of claim certified by a lawyer in accordance with r 16.01(c) of the Federal Court Rules 2011 (Cth) by 7 February 2025.
3.The respondent’s interlocutory application filed on 5 February 2024 otherwise be dismissed.
4.Costs of the respondent’s interlocutory application be reserved.
5.The proceeding be listed for a further case management hearing at 9.30am on 21 February 2025.

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

REASONS FOR JUDGMENT
GOODMAN J

The respondent is a company which provides security services. It appears to be common ground that the respondent employed the applicant on a full time basis during the period from 6 or 8 June 2023 to 5 September 2023.
Following the cessation of that employment, the applicant commenced this proceeding by originating application, supported by a statement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cavar v MSS Security Pty Ltd

Details

AGLC: Cavar v MSS Security Pty Ltd [2024] FCA 1460
Case: [2024] FCA 1460
Decision Date: 18 December 2024

CaseChat Overview and Summary

The applicant, Cavar, appeared as a litigant in person in proceedings against MSS Security Pty Ltd, which arose from an employment dispute. The matter was before the Federal Court, which was required to consider a strike-out application by the respondent in relation to Cavar's statement of claim. The dispute concerned the sufficiency of Cavar's statement of claim, which the respondent argued did not adequately disclose the cases Cavar sought to rely on.

The court was required to balance the need to ensure that the respondent was not faced with an incomprehensible statement of claim against the challenges faced by a litigant in person. The court found that while Cavar had made a significant effort to draft the statement of claim, it was not presented in a comprehensible manner and failed to adequately disclose the claims. The court struck out various paragraphs of the statement of claim, but allowed Cavar leave to file an amended statement of claim, provided it was certified by a lawyer.

The court dismissed the respondent's interlocutory application in all other respects and ordered that the costs of the application be reserved. The court also listed the proceeding for a further case management hearing to facilitate the filing of the amended statement of claim. The court's decision underscored the importance of ensuring that statements of claim are sufficiently clear and comprehensible, while also recognising the difficulties faced by litigants appearing without legal representation.

The orders of the court reflect this balance, providing Cavar with the opportunity to amend the statement of claim, while ensuring that the respondent was not unduly prejudiced by an incomprehensible pleading. The case management hearing will provide an opportunity for the court to further consider the merits of Cavar's claims and the appropriate steps for the proceeding to take.

Orders

Orders of the court

1. The following paragraphs of the statement of claim filed on 7 November 2023 be struck out:

(a) paragraph 6;

(b) paragraph 7;

(i) subparagraph (c);

(ii) the following words in subparagraph (n): “The applicant claiming damages” and “for breach of the applicant’s contract in terms of his 38 hours per week with 12 hours shift reducing his weekly hours for 24 hours per week only since 14 August 2023”;

(d) paragraph 9; and

(e) paragraph 10.

2. The applicant have leave to file and serve a further statement of claim certified by a lawyer in accordance with r 16.01(c) of the Federal Court Rules 2011 (Cth) by 7 February 2025.

3. The respondent’s interlocutory application filed on 5 February 2024 otherwise be dismissed.

4. Costs of the respondent’s interlocutory application be reserved.

5. The proceeding be listed for a further case management hearing at 9.30am on 21 February 2025.

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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	NSD 1299 of 2023
Judgment of:	GOODMAN J
Date of judgment:	18 December 2024
Catchwords:	PRACTICE AND PROCEDURE – strike out and summary judgment application – litigant in person – need to strike a balance between the challenges faced by a litigant in person and a respondent faced with a statement of claim that does not disclose in a comprehensible way the case (or cases) to be met – save for one cause of action, the statement of claim be struck out, with leave to file a further statement of claim if certified by a lawyer
Legislation:	Competition and Consumer Act 2010 (Cth), sch 2, ss 27, 236 Fair Work Act 2009 (Cth) Federal Court of Australia Act 1976 (Cth), s 37M Federal Court Rules 2011 (Cth), rr 16.01, 16.21
Cases cited:	Reurich v Shoalhaven Heads Bowling and Recreational Club Ltd [2020] FCA 427 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	22
Date of last submission/s:	9 July 2024
Date of hearing:	20 June 2024
Solicitor for the Applicant:	The applicant did not appear at the hearing, but made subsequent written submissions by leave
Counsel for the Respondent:	Ms N Campbell
Solicitor for the Applicant:	Ms P Sena, in-house counsel for the respondent

ORDER MADE BY:	GOODMAN J
DATE OF ORDER:	18 DECEMBER 2024