Cavar v Australian Unity Home Care Services Pty Ltd - [2024] FCA 1285 - FCA 2024 case summary — Zoe

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Cavar v Australian Unity Home Care Services Pty Ltd

[2024] FCA 1285

Federal Court of Australia|2024-11-08|Before: Needham J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2024-11-08

Before

Needham J

Source

Original judgment source is linked above.

Judgment (6 paragraphs)

[1]

THE COURT ORDERS THAT:

The application for extension of time for filing an application for leave to appeal, and the application for leave to appeal, dated 3 July 2024, is dismissed.
The applicant is to pay the costs of the respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT NEEDHAM J:
On 3 July 2024, the applicant, Ms Cavar, filed an application for extension of time and leave to appeal from the interlocutory decision of Cavar v Australian Unity Home Care Services Pty Ltd [2024] FCA 609 (the primary judgment).

[2]

Procedural background

In June 2021, Ms Cavar was offered a contract of employment, conditional on completion of background checks by Australian Unity Home Care Services (Australian Unity). Australian Unity later withdrew the offer of employment. Ms Cavar filed an application in the Federal Circuit Court of Australia (as it was then) on 30 September 2021 alleging that the respondent had engaged in misleading and deceptive conduct in contravention of ss 18 and 31 of the Competition and Consumer Act 2010 (Cth) sch 2 (Australian Consumer Law) (ACL), unfair practices and harassment, coercion and unconscionable conduct.
On 30 August 2022, a Deed of Release was executed by both parties shortly before the hearing in the Federal Circuit and Family Court of Australia. The Deed of Release provides relevantly as follows (as per [7] of the primary judgment): (a) The respondent was, within five days, to pay the applicant the sum of $5,000 and irrevocably release her from a substantial costs order that had been made in its favour. (b) The applicant was to take all reasonable steps to file a notice of discontinuance with no order as to costs. (c) By cl 3.1: (a) Ms Cavar releases absolutely and forever discharges the Group from all Claims which Ms Cavar may have had, may now have or but for this deed, may have had at any future time against the Group. (b) Ms Cavar agrees to indemnify and keep indemnified the Group from all Claims which may be made by Ms Cavar. (c) Ms Cavar promises not to bring or commence or seek to enforce any Claims in any court, commission, tribunal, or body against the Group which Ms Cavar may have had, may now have or but for this deed, may have had at any future time against the Group. (d) By cl 3.2, the respondent granted similar releases and acknowledged that the deed constituted full and final settlement of all claims which it might have against the applicant. (e) The expression "Claims" was defined broadly: Claims means all actions, applications, arbitrations, causes of action, complaints, costs, damages, debts due, demands, determinations, enquiries, judgements, liabilities, suits, sums of money and verdicts whatsoever and however arising whether at law or in equity or under any statute (including but not limited to the Competition and Consumer Act 2010 (Cth) and the [FW Act]) and whether directly or indirectly, from the Employment Contract, the Employment Offer, the Costs Order or the Proceedings but does not include any claim arising under applicable workers' compensation or superannuation legislation.

[3]

Legal principles

Given that the primary judgment is interlocutory in nature, leave is required for the applicant to appeal from that decision: Federal Court of Australia Act 1976 (Cth) (FC Act) s 24(1A).
An application for leave to appeal must be filed within 14 days after the judgment was pronounced or the order was made: FC Rules r 35.13(a). The primary judge gave judgment on 6 June 2024. The applicant filed her application on 3 July 2024, being 13 days out of time. Rule 35.14 empowers the Court to grant an extension of time in which to seek leave to appeal.
In determining whether to grant an extension of time, the Court is to take into account factors including the length and explanation of the delay, any prejudice to the respondent from the delay, the history of the proceedings and conduct of the parties, and the likelihood that leave to appeal would be granted: Quach v Australian Health Practitioner Regulation Agency (Extension of Time) [2023] FCA 578 at [12] (Thawley J).
In Finch v The Heat Group (No 3) [2017] FCA 64 at [33], Pagone J summarised the principles applicable to an extension of time for leave to appeal: The overarching consideration in an application for an extension of time is whether injustice may arise by strict application of the time limits: Anthony v Chris Savage Pty Ltd [2003] NSWSC 698 at [35]. The following factors are relevant in determining whether to exercise the Court's discretion to grant an extension of time to apply for leave to appeal out of time: the likelihood of a court granting leave to appeal (see Deighton v Telstra Corporation Ltd [1997] FCA 1568); whether there is a satisfactory explanation for the delay in filing the application for leave to appeal (see Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802 at [20]); the length of the delay in making the application (see Ford v La Forest [2002] 2 Qd R 44 at [4]); the history of the proceedings and the conduct of the parties (see Gallo v Dawson (1990) 93 ALR 479 at 480) and the consequences of the refusal to grant an extension of time (see Gallo v Dawson (1990) 93 ALR 479 at 480).
In respect of the legal principles applying to the application for leave to appeal, the Full Court in Deputy Commissioner of Taxation v Miraki [2022] FCAFC 96 (Perram, Moshinsky and Hespe JJ) stated at [5]: The principles applicable to an application for leave to appeal from an interlocutory decision are well established. In general, the tests to be applied are: (a) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400 per Sheppard, Burchett and Heerey JJ The discretion to grant leave is not constrained by rigid rules. Leave to appeal has been granted where, for example, the questions posed for resolution on appeal "have general importance beyond the concerns of the parties": Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227 at [10] per Heerey, Moore and Tracey JJ See also ACE Insurance Ltd v Trifunovski (2012) 291 ALR 46 at [7]-[9] per Flick J.

[4]

The parties' submissions

In her submissions, the applicant explains that she was "instructed wrongly" by the Registry to file a Notice of Appeal after the hearing on 6 June 2024. The applicant states throughout her submissions that the primary judge made errors of law and fact. In particular, the applicant asserts that the primary judge made a wrong finding at [16]-[17] of the primary judgment (set out in paragraph [9] above). The applicant reiterates that she does not accept the Deed of Release as binding, apparently including because the cheque has "never been accepted OR relished in any bank by applicant" (emphasis in original).
Ms Cavar states that the primary judge wrongly applied ss 26(1)(a) and 31A(2)(b) of the FC Act and r 26.01(1)(d) of the FC Rules, and that his Honour did not consider s 27 of the ACL which deals with standard form contracts. She contends that the various judges who have presided over her proceedings have demonstrated "heavy prejudice" towards an applicant who is self-represented.
The respondent accepts that the applicant provides a satisfactory explanation for her delay. However, the respondent submits that the present application for extension of time and leave to appeal should be dismissed for the following reasons:-
The primary judge's decision is not attended with sufficient doubt to warrant it being reconsidered by the Full Court. The respondent submits that the applicant does not articulate any error of fact or law by the primary judge. It submits that there is no sufficient doubt attending the primary judge's decision at [14] of the primary judgment, as cl 3.1 and cl 1.1 of the Deed of Release establish that the applicant has no reasonable prospect of prosecuting the proceedings pursuant to r 26.01(1)(a) of the FC Rules and s 31A(2)(b) of the FC Act. Further, both Judge Cameron and Rares J dismissed Ms Cavar's claims on the basis that they were settled by the Deed of Release and as such, the primary judge's decision - that the Federal Court could not entertain an argument that the Deed of Release was binding on the applicant without revisiting an issue that decided in earlier litigation - is correct.
Second, no substantial injustice would result if leave were refused, even supposing the decision to be wrong, due to the fact that the respondent had "a complete defence to Ms Cavar's claim" in the primary proceedings as it would be entitled to rely on the Deed of Release to bar Ms Cavar's claim.
Third, there is no injustice arising from a strict application of the time limit in circumstances where leave should be refused. This is in the context of a history of dealings and proceedings between the applicant and the respondent, and also in circumstances where Ms Cavar has been unsuccessful in her legal proceedings to date. In contrast, the respondent will incur additional costs in defending an appeal "that is wholly without merit" should the extension of time and leave to appeal be granted.
In her submissions in reply, the applicant reiterates that the primary judge made an error of law and fact, and that the Deed of Release had not been accepted by her, on the same bases as set out above. She also makes allegations, without evidence, that the primary judge's decision was attended by corrupt conduct and favoured the respondent.

[5]

Consideration

The question of whether an extension of time should be granted is not completely answered by the respondent accepting that there was a satisfactory explanation for the delay. The applicant's account of the advice she was given by the Registry appears to have been caused by her intent to file an application for special leave to appeal to the High Court. The applicant first sought to file an application for special leave, and filing was rejected pursuant to s 33(2) of the FC Act, which decision was communicated to her on 26 June 2024 (i.e., out of time for her to file a leave to appeal application to this Court). The applicant asked the Registrar to review her decision. The Registry of the High Court replied on 1 July 2024 stating that "there is no avenue of appeal to the High Court directly from the judgment given by [the primary judge]".
In her submissions, the applicant says that she was "instructed wrongly by staff at the registry giving the Notice of appeal on hand to file within 28 days". There is no written evidence of this "wrong instruction" and in fact it appears that the applicant was seeking to file in the High Court rather than in this Court. An applicant for an extension of time must provide an explanation for the whole of the delay; see Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20] (Lindgren J).
The respondent relied upon the passage quoted above in paragraph [15] from Finch v The Heat Group (No 3) at [33], see also Russel v Macquarie Bank Ltd [2020] FCA 1332 (Thawley J) at [23]-[24], and Krajniw v Hunt [2017] FCA 483 (Logan J) at [3] where the above passage of Pagone J from Finch v the Heat Group (No 3) was referred to with approval.
The delay is not in itself significant, and no specific prejudice arising from the delay itself (apart from that alleged by the respondent if leave were to be granted) is pointed to by the respondent. However, the respondent submits that given the application's lack of any prospects of success, there is no injustice which would arise by strict application of the time limit being enforced.
I differ from the respondent in considering that there is a "satisfactory explanation for delay". However, that point is not significant, given that in any event, the question of extension of time is also dependent on the issue of whether the decision from which leave to appeal is sought is "attended by sufficient doubt" so to render the grant of leave liable to reconsideration by a Full Court. The question is whether any utility would be afforded by extending the time in which to seek leave to appeal.
The respondent says that there are no reasonable prospects of the applicant succeeding. This is based on:
The terms of the Deed of Release signed by the applicant; and
The two prior decisions standing "squarely in the way" of a reconsideration of the validity of the Deed of Release (see primary judgment at [15]).
The respondent also relies on the prejudice it would suffer were leave to be granted, given the significant history of these proceedings and the signal lack of success by the applicant so far.
Ms Cavar, on the other hand, seeks to raise numerous grounds of invalidity including, as noted above, that the cheque has not been presented by her and paid; that there are "false allegations" in the Deed of Release including whether the contract of employment, which is the starting point for these proceedings, was enforceable or whether it was properly withdrawn, and whether the Deed of Release was signed by a person with appropriate authority.
The respondent points to the fact that the applicant is seeking, not to articulate or identify specific grounds of appeal from the primary judge's judgment, but to reagitate the decisions not only of the primary judge but of Judge Cameron and Rares J as well. I note that the applicant sought to attack the independence of Judge Cameron in the hearing before Rares J, but Rares J said (at [9]) that there was no conceivable basis 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 the dispute.

[6]

Disposition

The leave sought is to appeal from a decision of the primary judge dealing, not with the underlying validity of the Deed of Release, but for damages under ss 82 and 236 of the ACL for misleading and deceptive conduct, common law damages for breach of contract, and damages under the Fair Work Act 2009. The releases in the Deed of Release are, as found by the primary judge, broad, and involve "a binding promise by the applicant not to pursue any 'Claims' that she might have had against the respondent". I agree with the primary judge that the definition of "Claims" (as set out above) catches the proceedings from which she seeks leave to appeal (see [14] of the primary judgment).
The applicant sought to argue the validity of the Deed of Release before Judge Cameron, who rejected the applicant's arguments that the Deed of Release was ineffective, and Rares J refused leave to appeal from this decision on the basis that there was no error in his Honour's finding to that effect. Her original claims against the respondent were settled by the terms of the Deed of Release that she signed.
Nothing the applicant has raised in her affidavits, submissions, or submissions in reply, raises any doubts about the correctness of the judgment of the primary judge.
In addition to the question of sufficient doubt, the respondent, in its submissions, speaks to the prejudice to be suffered by it if leave were not refused. In [25] of its submissions, it sets out the chronology of the history of dealings between the applicant and the respondent, and makes the point that the respondent will suffer more costs in defending "an appeal that is wholly without merit".
I agree with the respondent. Nothing that the applicant has raised is at all persuasive that she would succeed on an appeal. Her attempts to raise, once more, on the question of leave to appeal, the underlying issues of the offer of employment and the validity of the Deed of Release she signed in the proceedings before Judge Cameron, along with attacks on the three judges who have already found against her, speak to a perseverative inability to accept the decisions of the Courts.
There is no prospect of the applicant succeeding in her appeal, and the respondent will suffer prejudice in prolonging the proceedings if leave were granted. In relation to the extension of time, given that the decision is not attended by sufficient doubt, and there is no reasonable explanation for the whole of the delay, there is no basis for an extension of the time.
I dismiss the application filed on 3 July 2024 seeking an extension of time, and for leave to appeal.
The applicant is to pay the costs of the respondent. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Needham.