Cavar v Secom Australia Pty Ltd (No 3)
[2021] FedCFamC2G 290
•26 November 2021
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 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
This judgement deals with a collateral issue arising from the above litigation. On 22 October 2021, this Court summarily dismissed an application by Ms Cavar pursuant to rule 13.10(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”): (see; Cavar v Secom Australia Pty Ltd [2021] FedCFamC2G 163 (“the substantive application”)).
Ms Cavar had made an application pursuant to the Fair Work Act 2009 (Cth) and other Commonwealth legislation seeking reinstatement by Secom and damages for unlawful dismissal, mental stress, harassment, and bullying. In dismissing the matter, the Court found that the action had no reasonable prospects of success. At paragraph 41 of the substantive application, the Court found the following:
The applicant’s case consists of a series of inflammatory allegations of criminal conduct and/or conspiracies, including at the hands of organised crime by the respondent. The allegations were repeated in oral submissions however she (Ms Cavar) was unable to point to independent or corroborative evidence to support those allegations.
Ms Cavar has also made unsupported allegations of racial and/or religious discrimination against her by Secom.
During the course of the hearing of the substantive matter, the Court was provided with a document by the legal representative for the respondent that outlined Ms Cavar’s extensive history of similar litigation within this and other Courts and Tribunals. That document was not received into evidence for the substantive application but was considered when the Court made the following orders in addition to dismissing her application:
3. The Court directs that Ms Cavar is to appear personally before the Court at 10.00am on 18 November 2021 to provide submissions and argument as to why the Court should not of its own motion make orders pursuant to s 239 of the Federal Circuit Court and Family Court of Australia Act 2021 that:
a.Any current proceedings before this Court be stayed; and
b.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).
Further orders were made for the filing of written submissions and evidence by Ms Cavar.
THE LAW
Section 239 of the Federal Circuit and Family Court Act 2021 (Cth) (“the Act”) reads as follows:
1. This section applies if the Federal Circuit and Family Court of Australia (Division 2) is satisfied:
a. a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
b. a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.
2. The Federal Circuit and Family Court of Australia (Division 2) may make any or all of the following orders:
a. an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;
b. an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;
c. any other order the Court considers appropriate in relation to the person.
3. Subsection (2) applies in relation to proceedings in the Federal Circuit and Family Court of Australia (Division 2) other than proceedings under the Family Law Act 1975.
4. The Federal Circuit and Family Court of Australia (Division 2) may make a vexatious proceedings order on its own initiative or on the application of any of the following:
a. the Attorney‑General of the Commonwealth or of a State or Territory;
b. the Chief Executive Officer;
c. a person against whom another person has instituted or conducted a vexatious proceeding;
d. a person who has a sufficient interest in the matter.
5. The Federal Circuit and Family Court of Australia (Division 2) must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
6. An order made under paragraph (2)(a) or (b) is a final order.
7. For the purposes of subsection (1), the Federal Circuit and Family Court of Australia (Division 2) may have regard to:
a. proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
b. orders made by any Australian court or tribunal; and
c. the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
In order to make a vexatious proceedings order, the Court must be satisfied that either
s 239(1)(a) or (b) of the Act has been enlivened.
The term ‘vexatious proceeding’ is defined within s 7 of the Act to include:
a) a proceeding that is an abuse of the process of the court or tribunal; and
b) a proceeding instituted within a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
c) a proceeding instituted or pursued in a court or tribunal without a reasonable ground; and
d) a proceedings conducted in a court or tribunal in a way as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose
In Nadantu v Chapman(No 2) [2019] FCCA 3718, Street J had the following to say in relation to vexatious proceedings at [6]-[7];
[6] The jurisdiction under Part 6B (of the former Federal Circuit Court Act 1999) is a protective jurisdiction that must be exercised with restraint. That jurisdiction is one in respect of which all persons in Australia ordinarily have a right of access to the Courts of this country and a limitation on the access of any person in Australia to the Courts should only be imposed in clear circumstances where it is necessary to protect the Court and the public from wasted cost, expense and time in respect of a vexatious litigant.
[7] The purpose of the orders have been identified in Smith & Anor v Jarvie & Anor [2015] FCCA 2843, Freeman v National Australia Bank Ltd [2006] FCAFC 67 at [24]. The Court also takes account of the observations made by the learned Toohey J in Jones v Skyring [1992] HCA 39 and the principles in relation to whether the proceedings had been frequently instituted as identified in Fuller v Toms [2015] FCAFC 91 at [112].
In HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 the following was said at [110]-[112]:
[110] Notwithstanding the seriousness of these matters, the power in s 37AO(1)(a) is enlivened only if it can be said that Mr Jarvie instituted or conducted vexatious proceedings “frequently”. As Davies J explained in Attorney-General (NSW) v Wilson[2010] NSWSC 1008 at [11]:
“It would not be sufficient, therefore, to point to the fact that a litigant had instituted even a number of vexatious proceedings. If the adverb ‘frequently’ could not be used in connection with the sum of them, no order can be made under s 8. That is a significant matter because it is a serious thing to deprive litigants of their access to the courts, a right which might be thought to be an inherent right for persons living in a democratic society under the rule of law – see in that regard In Re Boaler[1915] 1 KB 21 at 34 and Re De W Kennedy (Finance) Pty Ltd v Ley (unreported – Supreme Court NSW, Holland J – 29 March 1978).”
[111] Without detracting from the seriousness of the consequences of such an order, the use of the term “frequently” nonetheless imports a lesser test than that imposed by the predecessor provision in rule 6.02 which required that vexatious proceedings have been conducted “habitually and persistently”. That test had been said to imply “more than great frequency”, the word “[h]abitually suggest[ing] that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; ‘persistently’ suggest[ing] determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness”: Attorney-General v Wentworth(1988) 14 NSWLR 481 at 492 Roden J.
[112] The term “frequently” is a relative term and “must be looked at in the context of the litigation being considered”: Attorney General (NSW) v Gargen[2010] NSWSC 1192 at [7] (Davies J); see also Attorney General (NSW) v Wilson[2010] NSWSC 1008 at [12]; Jones v Cusack[1992] HCA 40; (1992) 109 ALR 313 (Jones) at 315 (Toohey J), and Chan at [37]. Thus, the Court may find that a person has instituted or conducted vexatious proceedings “frequently” even though the number of proceedings may be quite small, such as where the proceedings are an attempt to re-litigate an issue determined against the person: Fuller v Toms [2013] FCA 1422 (Fuller) at [77] (Barker J).
SHOULD A VEXATIOUS PROCEEDINGS ORDER BE MADE?
The first issue that needs to be determined is whether Ms Cavar has ‘frequently’ instituted proceedings in Australian Courts or Tribunals.
Ms Cavar was provided with a document that gave an annotated listing of her previous matters starting from 2008. This document was based on the document provided by the legal representatives for the respondent in the substantive proceedings, but was checked and annotated by my Associate. This included two matters that were discontinued, being Cavar v Royal Rehabilitation Centre Sydney (SYG2814/2010), an unfair dismissal matter, and Cavar v Amity Group Ply Ltd (NSD1095/2008), an industrial action matter.
There are currently two ongoing matters in this Court, Cavar v Australian Unity Home Care Services (SYG1822/2021), a consumer protection action currently before Judge Cameron of this Court, and Cavar v Heckenberg Protection Agency (SYF1823/2021), another consumer protection application with a first court date in February 2022 before me.
The document produced by my Associate lists 17 actions commenced in various Courts and Tribunals since 2008, including this Court, the Fair Work Commission, The Federal Court of Australia, the NSW District Court, the NSW Supreme Court, the NSW Court of Appeal, and the NSW Civil and Administrative Tribunal. Some matters involved appeals from decisions dismissing actions in inferior Courts and Tribunals
In Cavar v Macquarie Fields Community Care Incorporated t/a mcommunity care [2011] FWA 1173, Ms Cavar made an application pursuant to s 365 of the Fair Work Act 2009 (Cth) alleging contraventions involving dismissal. At paragraph 21 of that decision the following was stated:
“I note, only in passing, that this application is one of five filed by the applicant in comparatively recent times naming unrelated respondents – variously containing broadly similar, but not identical allegations about egregious conduct involving, but not limited to, discrimination, victimisation, criminality and so forth”
The application was dismissed.
In Cavar v St Bridgid’s trading as Green Gate Pty Ltd [2015] FCCA 1993, Ms Cavar alleged dismissal in contravention of various provisions of the Fair Work Act 2009. References were also made to the Age Discrimination Act 2004, the Racial Discrimination Act 1975 and the Australian Human Rights Commission Act 1986. The application was dismissed. At paragraph 3 of the decision, the Court noted that Ms Cavar walked out of the hearing room expressing exasperation at the address being made to the Court by Counsel for the respondent.
At paragraph 29 of the judgement the Court stated:
“None of the material placed by Ms Cavar before the Court provides any basis for the “particulars of unlawful discrimination” which are, in substance, separate allegations. They lack both particularisation which would provide them substance and evidentiary support which would provide them with reasonable prospects of success. Further, several are worded in such a way that the legal right they purport to assert is not identifiable.”
There was an appeal to the Federal Court in relation to a decision of a Judge of this Court not to disqualify themselves: (see; Cavar v Greengate Management Services Pty Ltd [2016] FCA 961). At paragraph 22 the following was stated:
“During the course of the hearing, I asked the applicant on several occasions to identify which parts of the primary judge’s reasons for refusing to disqualify himself that she asserted were in error, and what that error was. She declined each invitation to make such identification, asserting in broad terms that it was the entirety of the actions of the primary judge that warranted his disqualification.”
In Cavar v Greengate Management Services Pty Ltd (No 2) [2016] FCCA 3358, Ms Cavar’s application under the Fair Work Act 2009 was dismissed by this Court with further orders she pay the respondent’s costs fixed in the amount of $6,424.14. At paragraph 33 of the judgement, the Court stated:
“In her affidavit affirmed 17 December 2015, Ms Cavar appears to state that a prohibited motivation could be inferred in some unspecified way from certain annexed emails which, on that subject at least, are completely obscure.”
An application for leave to appeal to the Federal Court in relation to that case was dismissed with Ms Cavar to pay the respondent’s costs: (see; Cavar v Greengate Management Services Pty Ltd [2017] FCA 471).
In Cavar v Coles Supermarkets (Australia) Pty Ltd [2020] NCWCATAD 83 (“Coles Supermarkets”), leave for Ms Cavar’s complaint in relation to alleged discrimination was refused. Ms Cavar had alleged that she was discriminated against on the basis of her race and her age in the terms on which she was offered employment.
In Cavar v Uniting (NSW ACT) [2020] NSWCATAD 82, Ms Cavar made almost identical complaints as those in Coles Supermarkets alleging discrimination on the basis of her age and race. Leave to proceed was refused. At paragraph 29 the following was said:
“I consider that her complaint is misconceived, bordering on vexatious and lacking in substance, and in addition, the conduct alleged, if proven, would not disclose the contravention of a provision of the Anti-Discrimination Act 1977 or the regulations. In these circumstances it would not be fair and just to grant leave to proceed.”
Based on the above material, the Court is satisfied pursuant to s 239(1)(a) of the Act, that Ms Cavar has frequently instituted proceedings in Australian Courts and Tribunals.
Having determined that issue, the Court will now turn to consider whether the proceedings are ‘vexatious’ within the meaning of the term as defined in s 7 of the Act. This includes proceedings without reasonable ground or are an abuse of the process of the Court.
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 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.
Ms Cavar has lodged three sets of written submissions supported in each case by an Affidavit sworn by her. Those submissions take issue to a large extent with the outcome of the judgement in the substantive matter and express vehement disagreement with the ruling of the Court. At paragraph 25 of her submissions filed on 27 October 2021, Ms Cavar she states that she has lodged an enquiry for “…judge Humphreys criminal conduct in applicant’s matter SYG 1610/2020… to Attorney General for his removal under paragraph 72(ii) of the Constitution and pursuant to the Parliamentary Commission Act 2012.’
Earlier, at paragraph 8 of the same document, Ms Cavar made scandalous allegations that I was under the influence of my Associate, whose name Ms Cavar hypothesised, indicated that my Associate was from a Muslim background. The inference being that Ms Cavar was being discriminated against as she was from a non–Muslim background.
I indicate that I have not let these allegations affect my consideration of the matter, except to the extent that they provide evidence to support a conclusion that the conduct of the litigation by Ms Cavar is in a manner that is an abuse of the process of the Court, and/or she is prepared to make serious allegations without any evidence to support them. The substantive allegations made by Ms Cavar were that she was also being discriminated against by the respondent due to her age, ethnicity and religion. This appears to be a common theme in the litigation set out above.
In her second submissions dated 1 November 2021, Ms Cavar points out that in 2018, she settled proceedings against Woolworths Group Limited in a matter before the Fair Work Commission (U2018/2167) alleging unfair dismissal in the sum of $25,000 and that no order for costs were made in four other judgements. Proceedings in the Supreme Court of NSW by the Commonwealth Bank in 2013 also appear to have been settled by a payment to Ms Cavar in a sum that Ms Cavar declined to disclose.
The Court has considered these matters, but is of the view that settlement of a matter does not indicate that there was necessarily a reasonable cause of action. There is an available inference that settlement may have occurred for purely commercial reasons to avoid significant legal costs against an unrepresented applicant.
Ms Cavar’s third set of submissions and supporting Affidavit again repeat the unfounded allegations that she is the victim of criminal conduct at the hands of Secom. Ms Cavar attaches correspondence sent the various Commonwealth authorities alleging breaches of international law and conventions to which Australia is a signatory.
Read as a whole, Ms Cavar’s submissions are misconceived, disjointed, difficult to follow, and contain scandalous unsupported allegations against both the Court, and officers Secom and their legal representative.
The legal representative for Secom submitted that Ms Cavar has an extensive history of similar litigation, including various appeals against first instance rulings. Six costs orders have been made against Ms Cavar. Ms Cavar was unprepared to consider reasonable commercial settlement offers made by the respondent on two occasions. As a result, the respondent has incurred substantial costs defending proceedings that were doomed to fail. Further, Ms Cavar has made serious unsubstantiated allegations of criminal and other conduct by officers of the respondent. When faced with a ruling by the Court against her, Ms Cavar then made serious and inflammatory allegations against the Court. Ms Cavar’s actions today by absenting herself from the proceedings show a disrespect of the Court and its processes.
Given the history set out above, the Court is satisfied that the substantive proceedings meet the definition contained within s 7 of the Act as being vexatious, in that they have been instituted without reasonable ground and have been conducted in a manner that is harassing and annoying of the respondents. This finding is based on an assessment of the totality of the proceedings including all of her Affidavits, her submissions and the Court’s findings in summarily dismissing the substantive application.
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.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 26 November 2021
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