Cavar v Nursing Australia

Case [2012] FCA 338

FEDERAL COURT OF AUSTRALIA

Cavar v Nursing Australia [2012] FCA 338

Citation: Cavar v Nursing Australia [2012] FCA 338
Appeal from: Application for leave to appeal: Cavar v Nursing Australia [2011] FMCA 929
Parties: CELIA CAVAR v NURSING AUSTRALIA
File number: NSD 2214 of 2011
Judge: FLICK J
Date of judgment: 4 April 2012
Catchwords:

INDUSTRIAL LAW – dismissal of general protections claim – respondent not the employer – no identification of the adverse action

HUMAN RIGHTS – determination of claim by Federal Court – applicant had not made complaint to Australian Human Rights Commission – no jurisdiction to hear matter

PRACTICE AND PROCEDURE – costs – proceeding instituted without reasonable cause

Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO
Fair Work Act 2009 (Cth) ss 340, 341, 342, 351, 352, 365, 371, 570
Federal Court of Australia Act 1976 (Cth) s 24
Federal Magistrates Court Rules 2001 (Cth) r 13.10
Cases cited: ACE Insurance Ltd v Trifunovski [2012] FCA 235, cited
Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270, 63 IPR 373, cited
Cabcharge Australia Ltd v Australian Competition and
Consumer Commission [2010] FCAFC 111, cited
Cavar v Nursing Australia [2011] FMCA 929, cited
Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (No 2) [2007] FCAFC 145, 166 IR 23, cited
Creditors of Antal-Air Pty Ltd v Antal-Air Pty Ltd (admin apptd) [2004] FCAFC 303, 51 ACSR 473, cited
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, considered
Khiani v Australian Bureau of Statistics [2011] FCAFC 109, cited
R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470, cited
Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139, cited
Sharp v Deputy Commissioner of Taxation (NSW) (1988) 19 ATR 908, 88 ATC 4184, cited
Date of hearing: 20 March 2012
Date of last submissions: 20 March 2012
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 28
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Mr I Latham
Solicitor for the Respondent: Tim Paine

IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

GENERAL DIVISION

NSD 2214 of 2011
BETWEEN:

CELIA CAVAR
Applicant
AND:

NURSING AUSTRALIA
Respondent

JUDGE:

FLICK J

DATE OF ORDER:

4 APRIL 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Application for Leave to Appeal as filed on 8 December 2011 is dismissed.

2.The Applicant is to pay the costs of the Respondent.

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


IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

GENERAL DIVISION

NSD 2214 of 2011
BETWEEN:

CELIA CAVAR
Applicant
AND:

NURSING AUSTRALIA
Respondent

JUDGE:

FLICK J

DATE:

4 APRIL 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. On 28 February 2011 Ms Celia Cavar filed in the Federal Court of Australia an Application and a Claim seeking relief pursuant…

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Details
AGLC
Cavar v Nursing Australia [2012] FCA 338
Case
[2012] FCA 338
Decision Date

CaseChat Overview and Summary

Cavar brought a claim against Nursing Australia in the Federal Circuit Court of Australia. Cavar alleged that Nursing Australia had engaged in unlawful termination of her employment, in breach of the Fair Work Act 2009 (Cth). Cavar sought relief in the Federal Circuit Court, but this was dismissed. Cavar appealed to the Full Court of the Federal Circuit Court. The Full Court was required to determine whether Cavar’s appeal was validly brought and, if so, whether it was meritorious. The Full Court found that Cavar had not identified a valid respondent, as Nursing Australia was not her employer. Furthermore, Cavar had not identified any adverse action that had occurred, and therefore her claim for unfair dismissal was not valid. The Full Court also found that Cavar had not made a complaint to the Australian Human Rights Commission, and therefore the Court did not have jurisdiction to hear her human rights claim. Finally, the Full Court found that Cavar’s application for leave to appeal was not made with reasonable cause, and therefore she should pay Nursing Australia’s costs.

The Full Court held that Cavar’s Application for Leave to Appeal was without merit and refused the application. The Court found that Cavar’s attempt to add a different respondent and adduce additional evidence at the hearing was made too late. The Court also held that Cavar’s further submissions, made without leave after the hearing, did not lead to a different conclusion. The Full Court ordered that Cavar pay Nursing Australia’s costs. The Court held that Cavar’s Application for Leave to Appeal was instituted “without reasonable cause”. The Full Court held that the Federal Magistrate’s decision was not attended with error and that Cavar’s draft Notice of Appeal did not raise any issue that should be resolved on appeal. The Court held that Cavar’s Application for Leave to Appeal was dismissed and that she was to pay the costs of Nursing Australia.

Orders

Orders of the court

1. The Application for Leave to Appeal as filed on 8 December 2011 is dismissed.

2. The Applicant is to pay the costs of the Respondent.

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

An order should be made that she pay the costs of the present proceeding. CONCLUSIONS The Application for Leave to Appeal is to be refused. It is without merit. The decision of the Federal Magistrate is not attended with error and the draft Notice of Appeal as filed by Ms Cavar does not raise any issue that should be resolved on appeal. The application made at the outset of the hearing by Ms Cavar to, in effect, add a different respondent and to adduce additional evidence was an application made at far too late a time. Moreover, the present proceeding is an Application seeking leave to appeal from a decision of a Federal Magistrate. Such an application is not the occasion to seek to run a different case to that run in the Court below. It should finally be noted that after the conclusion of the hearing, Ms Cavar, without leave, forwarded to the Registry of the Court and to the Respondent further written submissions. Notwithstanding the fact that those submissions were filed without leave, they have nevertheless been considered. Given the unrepresented status of Ms Cavar, it is considered of importance that she be extended every opportunity to make such submissions as she sees fit. The further submissions, however, largely repeat submissions which were previously advanced. They lead to no different conclusion. There is no reason why Ms Cavar should not pay the costs of the Respondent. The present Application was instituted “without reasonable cause”.ORDERS The Orders of the Court are: 1.The Application for Leave to Appeal as filed on 8 December 2011 is dismissed. 2.The Applicant is to pay the costs of the Respondent.

Ratio Decidendi

Legal Principle Established

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