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

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cavar v Secom Australia Pty Ltd (No 3) [2021] FedCFamC2G 290

File number(s): SYG 1610 of 2020

Judgment of: JUDGE HUMPHREYS

Date of judgment: 26 November 2021

Catchwords: PRACTICE & PROCEDURE – Application for the making of vexatious proceedings orders – whether the applicant has frequently instituted or conducted vexatious proceedings in Australian Court – whether the applicant is likely to pursue further vexatious proceedings – vexatious proceedings orders made.

Legislation:
Federal Circuit and Family Court Act 2021 (Cth) ss 7, 239

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.10

Age Discrimination Act 2004 (Cth)

Australian Human Rights Commission Act 1986 (Cth)

Fair Work Act 2009 (Cth)

Racial Discrimination Act 1975 (Cth)

Cases cited:
Cavar v Coles Supermarkets (Australia) Pty Ltd [2020] NCWCATAD 83

Cavar v Greengate Management Services Pty Ltd (No 2) [2016] FCCA 3358

Cavar v Greengate Management Services Pty Ltd [2016] FCA 961

Cavar v Greengate Management Services Pty Ltd [2017] FCA 471

Cavar v Macquarie Fields Community care Incorporated t/a Community Care [2011] FWA 1173

Cavar v Secom Australia Pty Ltd [2021] FedCFAMC2G 163

Cavar v St Bridgid’s trading as Green Gate Pty Ltd [2015] FCCA 1993

Cavar v Uniting (NSW ACT) [2020] NSWCATAD 82

HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449

Nadantu v Chapman(No 2) [2019] FCCA 3718

Division: Division 2 General Federal Law

Number of paragraphs: 40

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.Ms Cavar is restrained without first obtaining leave from the Court, pursuant to s 242 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), from instituting any new proceedings in this Court pursuant to the Fair Work Act 2009 (Cth), the Age Discrimination Act 2004 (Cth), the Racial Discrimination Act 1975 (Cth) and the Australian Human Rights Commission Act 1986 (Cth).
2.The Court directs that a copy of this judgement be provided to the Registrar of the Court.
3.The Court directs that a copy of this judgement be provided to Judge Cameron for his consideration in the matter of Cavar v Australian Unity Home Care Services (SYG1822/2021).
4.
The Court directs that a copy of this judgement be provided to the respondent’s legal representatives in the matter of Cavar v Heckenberg Protection Agency

(SYG 1823/2021).

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…

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.

Keep reading for free

Create a free CaseChat account to read Cavar v Secom Australia Pty Ltd (No 3) 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 290
Decision Date: 26 November 2021

CaseChat Overview and Summary

The Federal Circuit Court considered an application for vexatious proceedings orders against Ms Cavar, who was represented by the Legal Aid Commission, and Secom Australia Pty Ltd. The application was brought under the Federal Court of Australia Act 1976 and sought orders to restrain Ms Cavar from pursuing further proceedings without leave of the Court in relation to certain Acts. The Court had to determine whether Ms Cavar had frequently instituted or conducted proceedings that were vexatious and whether she was likely to pursue further such proceedings.

The Court found that Ms Cavar had instituted numerous proceedings over a period of more than 12 years and had a history of pursuing claims that had no reasonable prospects of success. The Court considered that Ms Cavar was likely to pursue further vexatious proceedings if not subjected to an appropriate restraint to prevent the waste of Court resources and time, as well as unnecessary cost to the community. The Court was satisfied that the application for vexatious proceedings orders should be granted.

Accordingly, the Court made orders restraining Ms Cavar without first obtaining leave from the Court from instituting any new proceedings in the Court pursuant to the Fair Work Act 2009, the Age Discrimination Act 2004, the Racial Discrimination Act 1975 and the Australian Human Rights Commission Act 1986. The Court also directed that a copy of the judgement be provided to the Registrar of the Court, Judge Cameron, and the respondent’s legal representatives in other proceedings involving Ms Cavar.

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

Based on her litigation history, the Court is further satisfied that Ms Cavar is likely to pursue further vexatious proceedings if not subjected to an appropriate restraint to prevent the waste of Court resources and time, as well as unnecessary cost to the community in respect of proceedings that have no reasonable prospects of success.CONCLUSION The Orders of the Court will be that Ms Cavar is restrained without first obtaining leave from the Court from instituting any new proceedings in this Court pursuant to the Fair Work Act 2009, the Age Discrimination Act 2004, the Racial Discrimination Act 1975 and the Australian Human Rights Commission Act 1986. The Court directs that a copy of this judgement be provided to the Registrar of the Court. The final issue concerns the current proceedings in this Court. The Court directs that a copy of this judgement be provided to Judge Cameron for his consideration in the matter of Cavar v Australian Unity Home Care Services (SYG1822/2021). That matter is currently before His Honour and it would be inappropriate for this Court to make orders in respect of the matter. In relation to the matter of Cavar v Heckenberg Protection Agency (SYG 1823/2021), which is currently listed for a first return date in February 2022, the Court directs that a copy of this judgement be provided to the respondent’s legal representatives. This will allow the respondent’s legal representatives to consider if they wish to seek a stay of proceedings or other summary relief.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYG 1610 of 2020
Judgment of:	JUDGE HUMPHREYS
Date of judgment:	26 November 2021
Catchwords:	PRACTICE & PROCEDURE – Application for the making of vexatious proceedings orders – whether the applicant has frequently instituted or conducted vexatious proceedings in Australian Court – whether the applicant is likely to pursue further vexatious proceedings – vexatious proceedings orders made.
Legislation:	Federal Circuit and Family Court Act 2021 (Cth) ss 7, 239 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.10 Age Discrimination Act 2004 (Cth) Australian Human Rights Commission Act 1986 (Cth) Fair Work Act 2009 (Cth) Racial Discrimination Act 1975 (Cth)
Cases cited:	Cavar v Coles Supermarkets (Australia) Pty Ltd [2020] NCWCATAD 83 Cavar v Greengate Management Services Pty Ltd (No 2) [2016] FCCA 3358 Cavar v Greengate Management Services Pty Ltd [2016] FCA 961 Cavar v Greengate Management Services Pty Ltd [2017] FCA 471 Cavar v Macquarie Fields Community care Incorporated t/a Community Care [2011] FWA 1173 Cavar v Secom Australia Pty Ltd [2021] FedCFAMC2G 163 Cavar v St Bridgid’s trading as Green Gate Pty Ltd [2015] FCCA 1993 Cavar v Uniting (NSW ACT) [2020] NSWCATAD 82 HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 Nadantu v Chapman(No 2) [2019] FCCA 3718
Division:	Division 2 General Federal Law
Number of paragraphs:	40
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

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