Cavar v Australian Unity Home Care Services Pty Ltd

Federal Court of Australia|2024-06-06|Before: Kennett J

The originating application be dismissed under r 26.01 of the Federal Court Rules 2011 (Cth).
The applicant pay the respondent's costs of the proceeding as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 In 2021 the respondent made a conditional offer of employment to the applicant. Her employment was to commence on 12 July 2021. However, the respondent took the view that a condition of the offer was not satisfied and the applicant never commenced employment with the respondent. 2 In this proceeding the applicant sought damages under ss 82 and 236 of the Australian Consumer Law (ACL) for misleading and deceptive conduct, common law damages for breach of contract and damages under the Fair Work Act 2009 (Cth) (FW Act). Her statement of claim (which was prepared without legal assistance) alleged, among other things, that: (a) she accepted an offer and signed a contract on 25 June 2021; (b) the terms of the agreement included that she would be retained permanently for 15 hours per week, at a specified hourly rate, commencing on 12 July 2021 and subject to a probation period of six months; (c) in breach of contract the respondent failed to employ the applicant; and (d) alternatively the respondent misled and deceived the applicant within the meaning of ss 18 and 31 of the ACL. 3 The respondent filed an interlocutory application seeking summary judgment in its favour and the striking out of the statement of claim or, in the alternative, an order that the applicant provide $35,000 as security for costs and that the proceeding be stayed until the applicant complies with that order. Except in respect of the security for costs application, the respondent relied on the course of earlier proceedings between the parties. It argued, in short, that the issues which the applicant now seeks to raise were resolved in those earlier proceedings and cannot be litigated again. In relation to security for costs, the applicant relied on evidence that costs awarded to it in those proceedings have not been able to be recovered. 4 These reasons explain why, having heard the interlocutory application on 6 June 2024, I ordered that the originating application be dismissed under r 26.01 of the Federal Court Rules 2011 (Cth) (the Rules) and that the applicant pay the respondent's costs.

The earlier proceedings 5 The applicant commenced proceedings against the respondent in the (then) Federal Circuit Court on 30 September 2021. Those proceedings concerned the same offer of employment, and the same failure to provide employment, as this proceeding. The applicant relied on allegations that the respondent had engaged in misleading and deceptive conduct in contravention of ss 18 and 31 of the ACL, unfair practices in the way that it acted concerning the commencement of her employment, and harassment, coercion and unconscionable conduct. 6 The history of the proceeding is set out in detail in Cavar v Australian Unity Home Care Services Pty Ltd [2023] FCA 387 at [6]-[24] (Rares J) and need not be repeated in detail here. The important points are as follows. 7 On 30 August 2022 the applicant executed a deed of release that had been drafted by the lawyers for the respondent (the deed). The respondent executed a counterpart of the deed on 31 August 2022. The deed provided (relevantly) as follows. (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. 8 The matter was listed for hearing before Judge Cameron on 1 September 2022. It would seem that no notice of discontinuance had been filed by that time. The respondent sought summary dismissal of the proceeding on the basis that the parties had compromised their dispute and reduced their agreement to writing. The appellant was present and said that she contested the alleged settlement, but then left the courtroom during the hearing of the application. 9 Judge Cameron dismissed the proceeding with costs: Cavar v Australian Unity Home Care Services (No 4) [2022] FedCFamC2G 824. His Honour's orders indicate that this was done under r 13.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the FCFCOA Rules), which relates to orders that can be made in the absence of a party. However, the particular provision relied on was r 13.06(1)(e), which empowers the Court to deal with the proceeding "generally". His Honour therefore did not treat the applicant's absence per se as the reason for dismissing the proceeding. Rather, it is apparent that his Honour was acceding to the respondent's application for dismissal on the basis that the dispute had been settled. His Honour said at [14]: In all the circumstances, there is no adequate basis to conclude that Ms Cavar 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. Consequently, I find that the deed of release does record an enforceable compromise of the matter. In the interests of completely and finally determining all presently relevant matters and controversies between the parties I order, pursuant to r.13.06(1)(e) of the Court's Rules, that the proceeding be dismissed. 10 On 28 October 2022 the applicant made an application under r 17.05(2)(a) of the FCFCOA Rules to have the orders of 1 September 2022 set aside. That application was heard by Judge Cameron on 5 December 2022. The applicant put arguments concerning the circumstances in which she had executed the deed and alleged that there was defect in the applicant's execution of the deed - submissions evidently directed at showing that the deed should not be treated as an effective compromise of the parties' dispute - as well as the reasons why she had left the courtroom during argument on 1 September 2022. His Honour refused the application with costs: Cavar v Australian Unity Home Care Services (No 5) [2022] FedCFamC2G 1051. 11 On 17 December 2022 the applicant filed an application in this Court for leave to appeal from the costs order made on 5 December 2022. This was the application determined by Rares J in the judgment referred to above. In her submissions on that application, the applicant also sought to challenge various other orders made by Judge Cameron including the orders of 1 September 2022 and the refusal to reopen those orders on 5 December 2022. The application was heard by Rares J on 21 April 2023 and dismissed. Relevantly for present purposes, Rares J expressly found that there was no doubt about the correctness of the orders made on 5 December 2022 (at [27]). His Honour also summarised the events surrounding the execution of the deed of release; the events leading up to the hearing on 1 September 2022; and his observations about the applicant's demeanour (at [14]-[18]) and expressed the view at [18] that Judge Cameron was "able to act on the basis that he did in ordering summary judgment".

Hearing of the interlocutory application 12 The applicant and respondent filed written submissions. Those of the applicant appeared to go to the underlying merits of her claims rather than grappling with the reasons why it was being contended that those claims could not be advanced. 13 During the hearing the applicant interrupted the oral submissions of the respondent, complaining that they were confusing and irrelevant. Having been reminded that she would have her turn to speak later, the applicant left the courtroom indicating that she intended to appeal. Rule 17.04(b) of the Rules allowed me to continue the hearing and determine the application in the applicant's absence and I decided that I should do so. It was clear that the applicant had had notice of the hearing and an opportunity to participate in it. She did not suggest that she was unwell.

Consequences of the earlier proceedings 14 On their face the provisions of the deed, set out above, involve a binding promise by the applicant not to pursue any "Claims" that she might have had against the respondent. It operates as a release from liability in respect of such claims. "Claims" is defined in a way that captures any actions arising from the circumstances in which Ms Cavar was conditionally offered employment, and then not employed, in 2021. It covers the claims sought to be advanced in the present proceeding. That is sufficient to establish that, unless some attack can be made on the deed the applicant has no reasonable prospect of successfully prosecuting the proceeding, within the meaning of r 26.01(1)(a) of the Rules and s 31A(2)(b) of the Federal Court of Australia Act 1976 (Cth). The proceeding can also properly be described as an abuse of process (r 26.01(1)(d)): cf eg Burge v Commonwealth Bank of Australia (No 3) [2017] FCA 383 at [133]-[142], [174] (Foster J). 15 The three judgments referred to above did not determine any of the substantive issues in the earlier proceeding. They therefore do not directly engage any of the preclusive doctrines of res judicata, issue estoppel or Anshun estoppel (explained, for example, in Tomlinson v Ramsay Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 at [20]-[23] (French CJ, Bell, Gageler and Keane JJ)) in respect of those issues. However, those judgments do stand squarely in the way of any attempt to contend that the deed did not compromise the earlier proceedings or is otherwise not effective. Judge Cameron proceeded explicitly on the basis that the deed was effective as a compromise of the dispute between the parties, rejecting the applicant's submissions to the contrary; and Rares J, in refusing leave to appeal, saw no error in what his Honour had done. 16 Thus, this Court could not entertain any argument that the deed was not binding on the applicant without revisiting an issue that was decided in the earlier litigation. The applicant is estopped from re-agitating that issue. This point serves to confirm that the terms of the deed stand insurmountably against any prospect of the applicant succeeding in this case. 17 For these reasons it was appropriate that the originating application be dismissed under r 26.01. In these circumstances it is not necessary to say anything concerning whether the statement of claim should be struck out. The issue of security for costs also does not arise. Despite s 570 of the FW Act, I was satisfied that the proceeding was instituted without reasonable cause for the same reasons that persuaded me to dismiss the proceeding and that the proceeding was an abuse of process. Accordingly, I also ordered that the applicant pay the respondent's costs as agreed or assessed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kennett.

Federal Court Rules 2011(Cth)rr 17.04, 26.01

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