Cavar v Secom Australia Pty Ltd (No 2)

Link copied
Case Copied 17 min read

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

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

File number(s): SYG 1610 of 2020
Judgment of: JUDGE HUMPHREYS
Date of judgment: 26 November 2021
Catchwords: PRACTICE & PROCEDURE – Application for costs – whether the applicant has frequently instituted or conducted vexatious proceedings in Australian Court – cost order made.
Legislation:

Federal Circuit and Family Court Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

Fair Work Act 2009 (Cth)

Cases cited:

Ashby v Slipper (No 2) FCAFC 67

Australian & International Pilots Association v Qantas Airways Limited (No 3) (2007) 162 FCR 392

Australian Workers Union v Leighton Contractors Pty Ltd and Ors (No 2) [2013] FCAFC 23

Baker v Patrick Projects Pty Ltd (No2) [2014] FCAFC 166

Butterworths Australian Legal Dictionary 1997

Cavar v Secom Australia Pty Ltd [2021] FedCFAMC2G 163

Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225

Garrett v Commissioner of Taxation [2015] FCA 117

Golowenko v Clime Investment Management Ltd ACN 067 185 899 [2021] FedCFamC2G 241

Kanan v Australian Postal and Telecommunications Union [1992] FCA 539

Saxena v PPF Asset Management Ltd [2011] FCA 395

Trustee for the MTGI Trust v Johnson (No 2) [2016] FCAFC 190

Division: Division 2 General Federal Law
Number of paragraphs: 32
Date of last submission/s: 18 November 2021
Date of hearing: 18 November 2021
Place: Parramatta
Counsel for the Applicant: There was no appearance on behalf of the Applicant.
Solicitor for the Respondent: Mr Tass

ORDERS

SYG 1610 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CELIA CAVAR

Applicant

AND:

SECOM AUSTRALIA PTY LTD

Respondent

ORDER MADE BY:

JUDGE HUMPHREYS

DATE OF ORDER:

26 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The Applicant to pay the Respondent’s costs fixed in the amount of $17,718.00 within 28 days of the date of this order,  or such other time as may be agreed between the parties

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

  1. This judgment concerns an application for costs made by the respondent, Secom Australia Pty Ltd (“Secom”). This application follows the summary dismissal, pursuant to rule 13.10(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2001 (Cth) (“the Rules”), of an application made by Celija Cavar (“the applicant”) pursuant to the Fair Work Act 2009 (Cth) (“the Act”) and other Commonwealth legislation seeking reinstatement and compensation for unlawful dismissal, mental stress, harassment and bullying.

  2. The applicant claimed that…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Cavar v Secom Australia Pty Ltd (No 2) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2021] FedCFamC2G 289
Decision Date

CaseChat Overview and Summary

The case of Cavar v Secom Australia Pty Ltd (No 2) involved the applicant, Ms Cavar, seeking costs from the respondent, Secom Australia Pty Ltd. The proceedings arose from a dispute over Ms Cavar's termination from employment, which Secom argued was due to her poor performance and failure to comply with policies and procedures. Ms Cavar alleged that her termination was due to the exercise of her workplace rights and involved criminal conduct by Secom. The case was heard in the Australian court.

The primary legal issue the court had to address was whether the proceedings instituted by Ms Cavar were vexatious and without reasonable cause, warranting a costs order against her under section 570(2)(a) of the relevant Act. The court also needed to determine the appropriate basis for any costs order, considering the options of the Court scale, a party-party assessment, or indemnity costs as claimed by Secom.

The court found that Ms Cavar's claims were manifestly groundless and obviously untenable, with no reasonable prospects of success. Her unsubstantiated allegations were considered an abuse of the court process. The court concluded that the proceedings were vexatious and that Ms Cavar's conduct warranted a costs order. The court opted for an assessment on a party-party basis, considering the overall objectives of the court to resolve matters economically and the policy of protecting parties from costs in such jurisdictions.

The court made an order that Ms Cavar pay Secom's costs of the application on a party-party basis, as assessed or agreed, or in default, the amount of $47,883.83 as claimed by Secom.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The applicant’s Affidavit of the same date raised further matters that are either irrelevant to the issue of costs, are misconceived, disjointed or difficult to follow.CONSIDERATION The appropriate starting point is the various conclusions in made in the substantive judgement. These include at [38] that the respondent Secom, terminated the applicant’s employment based on her poor performance, failure to comply with relevant policies and procedures and the use of inappropriate and aggressive language in her communications, and not the exercise of any workplace right by Ms Cavar. The applicant’s case consisted of bare assertions without any evidence to support them. At [41] the Court concluded that Ms Cavar’s case, even at its highest, did not have any reasonable prospects of success. The case consisted of a series of inflammatory allegations of criminal conduct and/or conspiracies including at the hands of organised crime by the respondent. Section 570(2)(a) of the Act allows a Court to make a costs order where the proceedings have been instituted vexatiously or without reasonable cause. This is a high threshold and even if satisfied, the Court still retains a discretion not to award costs: (see; Australian Workers Union v Leighton Contractors Pty Ltd and Ors (No 2) [2013] FCAFC 23 at [7]-[8]). An action may be deemed frivolous and vexatious if it is ‘so obviously untenable that it cannot possibly succeed, or is ‘manifestly groundless’ or so ‘manifestly faulty that it does not admit of argument”: (see; Butterworths Australian Legal Dictionary 1997 at [506]). Vexatious is also defined in s 7 of the FCFCOA Act to include a proceeding that is an abuse of the process of the Court or a proceeding instituted without reasonable cause. In the Court’s view, given the findings made in the substantive matter set out above, the Court is satisfied that the requirements of s 570(2)(a) of the Act have been made out. The proceedings are vexatious. They were manifestly groundless and obviously untenable. They had no prospects of success. The unsubstantiated and scandalous allegations made by Ms Cavar constitute an abuse of process of the Court. The Court is further satisfied that this case is an exceptional one such as to justify the Court to exercise its discretion to make a costs order: (see; Ashby v Slipper (No 2) FCAFC 67 at [35]), due to the conduct of the applicant in the groundless and scandalous allegations made by her and by refusing offers of compromise made on a commercial basis by the respondent. The next matter that the Court must then consider, is on what basis a costs order should be made. Three options are open. The first is by reference to the relevant Court scale. The second would be an assessment on a party-party basis. The third would be indemnity costs as claimed in the amount of $47,883. 83. The Court is conscious that the Act was deliberately legislated as a ‘no-costs’ jurisdiction which reflected a policy of protecting a party instituting proceedings from liability for costs. The Court is also conscious of the overall objectives of the Court as reflected in both FCFCOA Act and the Rules to resolve matters as economically as possible.