Cavar v Secom Australia Pty Ltd

Case [2022] FCA 1548

FEDERAL COURT OF AUSTRALIA

Cavar v Secom Australia Pty Ltd [2022] FCA 1548

Appeal from: Cavar v Secom Australia Pty Ltd (No 3) [2021] FedCFamC2G 290
File number: NSD 1297 of 2021
Judgment of: KATZMANN J
Date of judgment: 23 December 2022
Catchwords:

PRACTICE AND PROCEDURE – application for leave to appeal from judgment imposing vexatious proceedings order under s 239 of Federal Circuit and Family Court of Australia Act 2021 (Cth) – whether judgment final or interlocutory – whether order itself meant that leave was required

PRACTICE AND PROCEDURE – litigant in person –appeal from vexatious proceedings order in and following making of an adverse costs order in proceeding arising under the Fair Work Act 2009 (Cth) – where court made a vexatious proceedings order on its own initiative – where court identified 17 proceedings commenced by applicant but only determined that the instant proceeding was vexatious, whether judgment affected by appealable error – whether preconditions for making of order established – whether reasons inadequate – whether litigant denied procedural fairness

Legislation:

Constitution s 51(xxxix)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 7, 239, 241

Federal Circuit Court of Australia Act 1999 (Cth) s 88Q

Federal Court of Australia Act 1976 (Cth) ss 24, 37M

Judiciary Act 1903 (Cth) s 78B

Federal Court Rules 2011 r 36.01
Cases cited:

Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292

Beale vGovernment Insurance Office of NSW (1997) 48 NSWLR 430

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424

Cavar v Secom Australia Pty Ltd (No 2) [2021] FedCFamC2G 289

Cavar v Secom Australia Pty Ltd (No 3) [2021] FedCFamC2G 290

Cavar v Secom Australia Pty Ltd [2021] FedCFamC2G 163

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16, 96 ALJR 476

Craig v The State of South Australia (1995) 184 CLR 163

Hunter v Transport Accident Commission [2005] VSCA 1; 43 MVR 130

Kirk v Industrial Court (NSW) (2010) 239 CLR 531

Police Federation of Australia v Nixon (2011) 198 FCR 267

Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

Reaper v Baycorp Collections PDL (Australia) Pty Limited [2020] FCA 631

Soden v Kowalski [2011] FCA 318

Wainohu v New South Wales (2011) 243 CLR 181
Division: Fair Work Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 66
Date of hearing: 15 December 2022
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: The Respondent filed a submitting notice
Counsel for the Amicus Curiae: Mr Y Shariff SC with D Fuller

ORDERS

NSD 1297 of 2021
BETWEEN:

CELIA CAVAR

Applicant
AND:

SECOM AUSTRALIA PTY LTD (ACN 050 293 420)

Respondent

ORDER MADE BY:

KATZMANN J

DATE OF ORDER:

23 DECEMBER 2022

THE COURT ORDERS THAT:

1.The draft notice of appeal received by the Court on 10 December 2022…

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AGLC
Cavar v Secom Australia Pty Ltd [2022] FCA 1548
Case
[2022] FCA 1548
Decision Date

CaseChat Overview and Summary

In Cavar v Secom Australia Pty Ltd, the applicant, Ms Cavar, sought reinstatement and compensation for unlawful dismissal and discrimination from her former employer, Secom Australia Pty Ltd. The case was dismissed summarily by the primary judge, who also imposed a vexatious proceedings order on Ms Cavar. Ms Cavar then applied for leave to appeal the vexatious proceedings order. The key issues in the appeal were whether the order was final or interlocutory and whether it was subject to an appealable error. The appeal was also concerned with the procedural fairness of the order, given that Ms Cavar was a litigant in person.

The court considered whether the vexatious proceedings order was final or interlocutory. It noted that the primary judge had imposed the order on his own initiative and that it was intended to prevent Ms Cavar from instituting further proceedings in the court. The court found that the order was final because it had the effect of prohibiting Ms Cavar from taking further legal action. The court also found that the order was subject to an appealable error because the primary judge had not adequately considered the preconditions for making the order. The court found that the primary judge had failed to provide adequate reasons for his decision and had not given Ms Cavar an opportunity to respond to the allegations made against her.

The appeal was allowed, and the orders made by the primary judge were set aside. The court found that the primary judge had not properly considered the preconditions for making the vexatious proceedings order, and that Ms Cavar had not been given an adequate opportunity to respond to the allegations. The court also found that the order was procedurally unfair because Ms Cavar was a litigant in person and had not been given adequate assistance in preparing her case. The court noted that the primary judge had not provided any reasons for his decision, and that this was a significant error. The orders made by the primary judge were therefore set aside, and there was no order as to costs.

Orders

Orders of the court

1. The draft notice of appeal received by the Court on 10 December 2022 stand as the notice of appeal.

2. The appeal be allowed.

3. The orders made in the court below on 26 November 2021 be set aside.

4. 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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 22 October 2021 the primary judge summarily dismissed an application by Ms Cavar in which she sought reinstatement and compensation for unlawful dismissal from her employment and discrimination in reliance on the Fair Work Act2009 (Cth), the Anti-Discrimination Act 1977 (NSW), the Sex Discrimination Act 1984 (Cth), the Age Discrimination Act 2004 (Cth) and the Racial Discrimination Act 1975 (Cth): Cavar v Secom Australia Pty Ltd [2021] FedCFamC2G 163 (summary dismissal judgment). His Honour did so, having determined that, taking her case “at its highest”, there were no reasonable prospects of success. He described the case as one consisting of “a series of inflammatory allegations of criminal conduct and/or conspiracies, including at the hands of organised crime by the respondent”. His Honour noted that Ms Cavar was “unable to point to independent or corroborative evidence to support those allegations”. At the same time his Honour directed Ms Cavar to appear personally before the court at 10.00 am on 18 November 2021 to provide submissions and argument as to why the court should not make orders of its own motion pursuant to s 239 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCoA Act) that:a.Any current proceedings before this Court be stayed; andb.Ms Cavar be prohibited from further instituting proceedings in this Court in relation to claims under the Fair Work Act 2009 (Cth), the Age Discrimination Act 2004 (Cth), the Racial Discrimination Act 1975 (Cth) and the Australian Human Rights Commissions Act 1986 (Cth). The impetus for the court’s action appears to have been the fact that, during the hearing of the summary dismissal application, the lawyer for Secom provided the court with a document outlining what his Honour described as “Ms Cavar’s extensive history of similar litigation within this and other Courts and Tribunals”.The reasons of the primary judge The primary judge identified the two issues he needed to resolve as:(1)whether Ms Cavar has “frequently” instituted proceedings in Australian courts or tribunals; and(2)whether the proceedings were “vexatious proceedings” within the meaning of the term in s 7 of the FCFCoA Act. His Honour mentioned that 17 proceedings had been instituted in various courts and tribunals since 2008, which included two matters which had been discontinued (one filed in the Federal Circuit Court, the other in this Court) and two which were pending ([12]–[14]). He referred specifically to seven proceedings initiated by Ms Cavar over 12 years. Based on a review of those proceedings (at [12]–[24]) his Honour concluded that Ms Cavar had frequently instituted proceedings in Australian courts and tribunals. His Honour then proceeded to address the second issue. He began by referring to Ms Cavar’s failure to appear at the hearing, stating at [26]:When the matter was called on, Ms Cavar did not appear. Ms Cavar had previously indicated that she was unable to appear personally as she was not fully vaccinated against Covid 19. Ms Cavar was then advised that she could appear by telephone. Ms Cavar did not dial into the Court’s teleconference system prior to the hearing and then in open Court, and attempts were made to contact her by email and on the mobile number provided in her address for service. In each case, the call went straight to voicemail. Noting that the time, date and manner in which Ms Cavar could participate in the hearing had been advised to her by email prior to the Cavar v Secom Australia Pty Ltd (No 3) [2021] FedCFamC2G 290 hearing, the Court determined that it would proceed with the matter, pursuant to r 13.06(1)(e) of the Rules, in her absence. In so doing, the Court notes that on previous occasions Ms Cavar has summarily removed herself from hearings by either disconnecting from the telephone call or simply walking out of the hearing room.

Ratio Decidendi

Legal Principle Established

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