Cavar v Australian Unity Home Care Services Pty Ltd

Introduction 1 This is an application for leave to appeal from the decision of the Federal Circuit and Family Court of Australia (Division 2) on 5 December 2022 to order that Cecilia Cavar pay Australian Unity Home Care Services Pty Ltd's costs fixed in the amount of $13,042.00 (Cavar v Australian Unity Home Care Services (No 5) [2022] FedCFamC2G 1051). On that occasion, the trial judge also dismissed Ms Cavar's application to reopen the proceeding that his Honour had summarily dismissed on 1 September 2022 (see Cavar v Australian Unity Home Care Services (No 4) [2022] FedCFamC2G 824). 2 In the course of her written and oral submissions, Ms Cavar also appeared to seek to challenge in an appeal a number of decisions made by the trial judge, in addition to the costs order of 5 December 2022, namely: (1) his Honour's refusal to recuse himself, the subject of his reasons on 24 November 2021 (Cavar v Australian Unity Home Care Services [2021] FedCFamC2G 316); (2) his Honour's refusal to transfer the proceeding below to this Court under s 153(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Federal Circuit and Family Court Act) in Cavar v Australian Unity Home Care Services (No 2) [2022] FedCFamC2G 75, despite the inability to bring any appeal from such a decision by reason of the provisions of s 153(6), which provides: An appeal does not lie from a decision of the Federal Circuit and Family Court of Australia (Division 2) in relation to the transfer of a proceeding under this section. (3) the trial judge's decision of 1 September 2022 in which his Honour found that, because she had signed and agreed to a deed to settle the proceeding, he would act on the deed and enforce the settlement despite her subsequent change of mind and desire to continue to litigate it. During the course of the hearing on 1 September 2022, Ms Cavar left the Court before the completion of oral argument, leading to its dismissal. His Honour found that the deed was binding. He concluded that the proceeding should be summarily dismissed and ordered Ms Cavar to pay $23,140.00 as the costs of the proceeding; and (4) his Honour's decision on 5 December 2022 not to allow Ms Cavar to reopen the proceeding because he found that she had not explained adequately why she had absented herself before the conclusion of the hearing on 1 September 2022, and thus was not satisfied that he should allow her to reopen it.

Background 3 The genesis of the proceeding below was Ms Cavar's application to Australian Unity for employment by it as a permanent part-time employee. On about 10 June 2021, Australian Unity sent Ms Cavar a proposed conditional contract of employment. On 25 June 2021, Ms Cavar returned to Australian Unity a signed acceptance of the offer. One part of the offer included a statement under the heading, "Conditional offer": Please note that this employment offer is conditional upon the completion of Australian Unity's background checks, which are set out below, to the satisfaction of the Company. In the event your background checks are not completed in time, your start date may be changed or the employment offer will lapse at Australian Unity's discretion, without any liability to Australian Unity for any payment or compensation to you. (emphasis added) 4 In the event, there appears to have been a dispute between Ms Cavar and Australian Unity as to whether she provided adequate information and adequate referees to enable Australian Unity to be satisfied that its background check process was complete. Rightly or wrongly, Australian Unity determined that the material Ms Cavar provided did not satisfy it.

The issue 5 An applicant for leave to appeal must establish that, first, the decision in question is attended with sufficient doubt and, secondly, substantial injustice would flow if leave to appeal were not granted: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.

the proceeding Below 6 Ms Cavar commenced the proceeding in the Court below and sought relief there based on her allegations that Australian Unity: had engaged in conduct that was misleading or deceptive in relation to her employment, in contravention of ss 18 and or 31 of the Australian Consumer Law in Sch 2 of the Competition and Consumer Act 2010 (Cth); engaged in some unfair practices as to the way in which it acted concerning the commencement of her employment; and had engaged in harassment, coercion and unconscionable conduct. 7 The proceeding progressed in the Court below, initially with Ms Cavar's application that his Honour recuse himself. She contended that should occur because, in 2016 in other proceedings that she had brought, his Honour had determined that she pay $6,424.14 costs to her then opponent. That occurred after a remittal to him that followed a partly successful appeal to this Court. His Honour noted in Australian Unity [2021] FedCFamC2G 316 that Ms Cavar had not identified a proper basis for his disqualification in her affidavits or written submissions, to the extent that she may have relied on his Honour's hearing of the other matter following the remittal. 8 In my opinion, it is plain that any contention that there was any apprehension of bias is unarguable, since Flick J appears to have ordered that the remittal be to the trial judge, and Ms Cavar did not challenge that order. Nor was there anything in the way in which the trial judge decided the earlier proceeding to which Ms Cavar could point, apart from a general allegation that his Honour was, in some way, "corrupt", about which she offered no evidence whatsoever. That allegation was an abuse of process. 9 Ms Cavar did not advance any conceivable basis to me on which it could be asserted that there was any reasonable possibility of her establishing that a fair minded lay observer might have considered that his Honour might not have brought an impartial mind to the resolution of Ms Cavar's dispute with Australian Unity, which had been docketed to him: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345 [6]-[8] per Gleeson CJ, McHugh, Gummow and Hayne JJ. 10 The next decision of which Ms Cavar sought to complain was his Honour's refusal to transfer the proceeding below to this Court that she made after having failed in her application for him to recuse himself. However, that order cannot be the subject of appeal, because s 153(6) of the Federal Circuit and Family Court Act precludes any such appeal. 11 The primary basis of Ms Cavar's current application is the consequence of his Honour's decision not to allow her to reopen the order made on 1 September 2022 summarily to dismiss her proceeding. His Honour made that order in the circumstance that the matter had been set down for a final hearing on that day. 12 In the period leading up to the final hearing, on 24 August 2022, Australian Unity's solicitors wrote a letter to Ms Cavar (the 24 August letter), in which it made an offer that the solicitors explained in the letter and that appeared in an attached draft deed. The offer was to settle the proceeding and for the parties to release each other from further liability on the terms of the deed, under which Australian Unity would pay her $5,000.00 and she would discontinue the proceeding with no order as to costs. The 24 August letter explained why Australian Unity had made the offer and what it asserted was the strength of its case. It said that, if she accepted the offer under the terms of the deed, Australian Unity would not require her to pay the $11,168.30 that his Honour had ordered her to pay on 11 February 2022, following the unsuccessful transfer application, and said that the offer was available for acceptance until 5:00pm on 30 August 2022, two days before the trial date. The 24 August letter asserted that Australian Unity had incurred more than $130,000.00 in legal costs, including counsel's fees and GST, up to that time, and that the solicitors expected that it would incur a further $25,000.00, including counsel's fees and GST, if the matter proceeded to trial. The 24 August letter added that, if she proceeded to trial and were unsuccessful, Australian Unity would apply for an order that she pay its costs on an indemnity basis. 13 Ms Cavar signed the deed on 30 August 2022, had her signature witnessed by a justice of the peace and returned the executed deed to Australian Unity's solicitors. 14 The deed recited, among other things, the circumstances in which the dispute arose, including that Ms Cavar had not completed the background checks specified in its conditional offer of employment to the satisfaction of Australian Unity. It also recited that, on about 29 June 2022, her employment offer had lapsed, so that her conditional employment contract came to an end in accordance with its terms, and, accordingly, she had never commenced employment. The deed provided, as I have said, for the proceeding to come to an end, with Australian Unity to pay Ms Cavar $5,000.00 into her nominated bank account and release her from her liability under the costs order of 11 February 2022. It contained an acknowledgment that Ms Cavar had entered into the deed voluntarily, had an opportunity to take legal advice as to its terms and effect, and was aware of, and understood, the consequences of entering into it. The deed provided that the release of Australian Unity would constitute a full and final settlement of all claims that Ms Cavar had, or might have or may have at any future time, against Australian Unity, other than as excluded under the deed, and that it contained the entire agreement of the parties. 15 When Ms Cavar executed the deed, witnessed by a justice of the peace, on the signing page, it contained an execution section for Australian Unity that provided that it would be signed, sealed, and delivered by its attorney, under a power of attorney dated 7 May 2019, who understood that they had no notice of its revocation. Ms Cavar crossed out the lines relating to Australian Unity's proposed manner of execution that appeared underneath the statement that the deed was to be signed, sealed and delivered by it. Clearly, those lines were not an operative part of the deed. Ms Cavar seems to have the impression that a corporation or natural person cannot use or appoint an attorney to act on or enter into legal obligations on its behalf except in certain limited circumstances. She provided no evidence and referred to no authority or statute that would deny the ordinary common law ability of a person to appoint an attorney to act for him, her or it and to enter into binding legal obligations on the person's behalf. Her argument had no substance. 16 She asserted that for some reason, when she changed her mind, as she admitted she did both to his Honour and in the course of argument to me, and wished to recant her agreement after she had communicated it by delivering the deed to Australian Unity, first, she had been pressured by Australian Unity's solicitors' assertion that they had incurred, or would incur, around $160,000.00 in costs were the case to go to trial and that Australian Unity would seek an order to recover that amount from her if it were successful, and, secondly, its use of an attorney to enter into the deed was somehow fraudulent and sought to bring undue pressure on her. 17 Ms Cavar is a person who has a clear ability to express herself without evincing any appearance of her will being overborne or affected by her opponent's arguments. In the course of the proceeding below and today, she has repeatedly identified that she has a legal qualification in a foreign country. She has established nothing by evidence or, indeed, in any submission that suggests that she is a person who could be, or was, overborne by a letter from solicitors acting for her forensic opponent. 18 In my opinion, his Honour was able to act on the basis that he did in ordering summary judgment. He found there was no adequate basis to conclude that Ms Cavar had entered into the deed other than voluntarily and armed with the sort of information that a party should have when considering whether to settle proceedings. He found that in those circumstances the deed was enforceable and that, as a result, the parties' dispute the subject of the proceeding below had been resolved by the parties' entry into the deed, so that there was no longer a controversy for the Court below to resolve. 19 In his reasons for judgment of 5 December 2022, his Honour recounted that the issue before him on that occasion was, first, whether Ms Cavar had provided a satisfactory explanation for her failure to remain in Court on 1 September 2022, and, secondly, whether it was in the interests of the administration of justice that the order for summary judgment should be set aside and the matter reheard. 20 His Honour found that Ms Cavar had set out in her affidavit in support of the relief she was then seeking that she had left the hearing on 1 September 2022 because, so she asserted, she had been ambushed by the application for summary judgment and material in documents with which she was unfamiliar which she suggested had been placed before his Honour on that occasion. She also asserted that she was hard of hearing. His Honour found there was no medical evidence to support that or any other health-related issue to which Ms Cavar referred. However, his Honour accepted that, on 1 September 2022, Ms Cavar was hard of hearing. But, his Honour said he had no recollection of Ms Cavar asking the legal representative of Australian Unity on that occasion to slow down or speak up or her demonstrating in the Court any difficulty with following the proceeding. 21 His Honour set out part of the transcript of that hearing in his reasons, including Ms Cavar's acknowledgement to him that: I don't accept deed of release. I changed my mind, and I compromised and I cancelled, and I cannot accept that offer, because I was doing under pressure and threatening of the court cost of $150,000. 22 His Honour was not persuaded that Ms Cavar had provided a satisfactory explanation for absenting herself from the hearing on 1 September 2022. He found that Ms Cavar had adduced no evidence that cast any doubt on the validity of the deed or its execution by either herself or Australian Unity. 23 The trial judge accepted that the quantification of Australian Unity's costs in the 24 August letter would have given Ms Cavar pause for reflection. Clearly enough, when a person appreciates that he or she might be liable for costs of their opponent's lawyers were they unsuccessful, such a revelation can be daunting at the very least. However, his Honour found that it was not illegitimate for the 24 August letter to refer to the anticipated amount of the costs or that its doing so amounted to Australian Unity putting any improper pressure on Ms Cavar. He was not persuaded that anything Ms Cavar might have said on 1 September 2022, which she put to him on 5 December 2022, would have altered matters because she had not advanced any basis to suggest that his Honour had reached an erroneous conclusion in deciding that she was bound by the executed deed that she delivered to Australian Unity. He then found at [16]-[17]: 16 As the application is to be dismissed, the respondent has sought an order for its costs. There is nothing in the conduct of this proceeding or anything which has been put to me which suggests the costs should not follow the event as they would in the ordinary course. 17 The respondent has sought costs in accordance with items 3 and 9(b) of the scale, together with counsel's fees as disbursements. On my calculations, those items amount to $13,042 and there will be an order that the applicant pay the respondent those costs. 24 Ms Cavar complained that his Honour had no power to order costs, quantified in the sum he did or generally, and that he had not given any reasons for doing so.

Consideration 25 Ms Cavar referred me to some cost rules and scales in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Those rules were, plainly, irrelevant to the powers which his Honour exercised in dealing with a general federal law matter under s 214 of the Federal Circuit and Family Court Act. Section 214 provided that a judge had jurisdiction to award costs in all proceedings before the Court, including proceedings dismissed for want of jurisdiction, other than proceedings in respect of which any other Act provided the costs must not be awarded, including in family law or child support proceedings and or proceedings in relation to a matter arising under the Fair Work Act 2009 (Cth) or sections of the Public Interest Disclosure Act 2013 (Cth). None of those exceptions applied to the proceeding before his Honour. 26 His Honour had jurisdiction under s 214 to make the order that Ms Cavar pay Australian Unity's costs. He was correct to have done so because Ms Cavar was a wholly unsuccessful litigant on 5 December 2022. The general principle is that a wholly successful party, such as Australian Unity, is entitled to an order for costs: Northern Territory v Sangare (2019) 265 CLR 164 at 177 [36] per Kiefel CJ, Bell, Gageler, Keane and Nettle JJ. His Honour calculated the costs in accordance with the then provisions of Sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. Ms Cavar identified no basis on which to suggest that his Honour made any error in that calculation. 27 I am not satisfied that his Honour applied any incorrect test in approaching the issue of whether he should grant Ms Cavar leave to reopen. Every court of justice, whether superior or inferior, has an inherent power to set aside an order made against a person who did not have a reasonable opportunity to appear and present his case: Taylor v Taylor (1979) 143 CLR 1 at 8 per Gibbs J. 28 Here, Ms Cavar had a reasonable opportunity to present her case to his Honour on 1 September 2022 but chose to leave the Court of her own volition, without any explanation, prior to the conclusion of that hearing. His Honour was entitled to consider whether, when she sought to have the hearing reopened, she had provided a satisfactory explanation for doing so. It was also open to his Honour to take into account that nothing Ms Cavar said about the merits of what she might have put to him, had she remained in the Court, would have led to any different outcome.

Conclusion 29 I am wholly unpersuaded that there is any doubt about the correctness of his Honour's decision, first, to order costs on 5 December 2022, which is the nominal subject matter of Ms Cavar's application for leave to appeal and her draft notice of appeal, and, secondly, to make any of the other orders to which I have referred of which Ms Cavar complained. Moreover, there is no injustice to Ms Cavar if leave to appeal were refused. 30 In my opinion, this application is without merit and must be dismissed. I note that Australian Unity does not seek any order for costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.