Cavar v Green Gate Pty Ltd

1. The application for leave to appeal filed on 14 December 2015 be dismissed.
2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BUCHANAN J: 1 These reasons for judgment deal with an application for leave to appeal against interlocutory orders made by Katzmann J on 30 November 2015 (NSD 988 of 2015): 1. Pursuant to s 32AB of the Federal Court of Australia Act 1976 (Cth), this proceeding be transferred to the Federal Circuit Court to be heard, in the discretion of the judge, together with or immediately after SYG106/2015. 2. In the event that s 570 of the Fair Work Act 2009 (Cth) does not preclude an order for costs, costs of the proceeding in this Court be costs in the cause. 2 On 16 January 2015, the applicant commenced proceedings in the Federal Circuit Court of Australia ("FCCA") seeking relief for breach of contract, breach of provisions of the Fair Work Act 2009 (Cth) ("FW Act") and discrimination contrary to the Age Discrimination Act 2004 (Cth) and the Racial Discrimination Act 1975 (Cth). It would appear that the subject matter of those proceedings arose from a period of employment of the applicant by the respondent in an aged care facility for three months between 12 August 2014 and 12 November 2014. 3 In the proceedings before the FCCA, the respondent sought summary dismissal of the application. That application for summary dismissal was successful (Cavar v St Brigid's trading as Green Gate Pty Ltd [2015] FCCA 1993). 4 On 3 November 2015, Flick J granted the applicant leave to appeal against that decision of the FCCA and allowed the appeal, although only as to matters arising under the FW Act (Cavar v Green Gate Pty Ltd [2015] FCA 1179). The proceeding was remitted to the FCCA for re-consideration of those issues with no order as to costs. 5 In the meantime, the applicant instituted proceedings in this Court on 21 August 2015, relying on the FW Act and again also alleging unlawful discrimination, arising from the same period of employment. At a directions hearing, Katzmann J raised with the parties whether the proceeding in this Court should be transferred to the FCCA. Her Honour was concerned that the proceeding which had been remitted to the FCCA and the proceeding which was pending in this Court arose out of the same facts and gave rise to common issues. Her Honour came to the view, which she explained in transcript in proceedings on 30 November 2015 (in a transcript of reasons for making the orders that day), that s 37M of the Federal Court of Australia Act 1976 (Cth) ("the FCA Act") and consideration of the matters referred to in r 27.12 of the Federal Court Rules 2011 (Cth) suggested that the course which was in the best interests of the parties and in the interests of justice would be to transfer the proceeding in this Court to the FCCA. It was for those reasons that the first order was made. 6 Her Honour did not address any specific remark to the second order but it is plain that her Honour had come to no view whether or not costs would be a matter to be considered in the proceedings in the FCCA. It may be the case that her Honour intended only that any question of costs in this Court should follow the outcome of costs in the FCCA. However, the form of her Honour's order appears to leave open the possibility of a free-standing and separate debate, in the FCCA, about whether the proceedings in this Court were commenced without reasonable cause (see FW Act, s 570(2)). I will say more about that possibility hereunder. 7 First, I should address whether leave to appeal may, or should, be granted against the first order. 8 In written submissions the respondent advanced a number of arguments why leave to appeal against the first order should not be granted, but it is only necessary to deal with one of them. 9 Section 32AB of the FCA Act permits discretionary transfer of civil proceedings to the FCCA. Section 32AB(8) provides: (8) An appeal does not lie from a decision of the Court in relation to the transfer of a proceeding under subsection (1). 10 It follows that an appeal from Order 1 made on 30 November 2015 is not competent and leave to appeal against that order may not be granted. 11 The position with respect to the second order is not so straightforward. Counsel for the respondent came to the hearing of the present application with instructions that the respondent reserved its right to seek costs of the transferred proceedings (i.e. costs in this Court) on the basis that those proceedings were commenced (i.e. in this Court) without reasonable cause, as an issue separate from whether or not costs were awarded to the respondent in the FCCA. 12 The prospect that the FCCA might be asked to decide a question of that kind (e.g. the propriety of proceedings in this Court) may have raised a respectable question for the attention of a Full Court on appeal, but it seems obvious that the costs incurred by the respondent properly attributable to the short time the proceedings remained in this Court before transfer were (or at least should be) modest. During the hearing of the present application, counsel took further instructions and an undertaking was given to the Court that the respondent would not seek costs pursuant to the second order made by Katzmann J on 30 November 2015. 13 In those circumstances, there would be no utility in a grant of leave to appeal against the second order. 14 The application for leave to appeal filed on 14 December 2015 must therefore be dismissed. 15 It appears from the reasons for judgment of the FCCA on 24 July 2015 and the orders made on that day that the correct name of the respondent is "Greengate Management Services Pty Ltd". That name also appears on the documents upon which the applicant relies which are attached to her affidavit in support of the application for leave to appeal. 16 In the light of my conclusion that the application for leave to appeal be dismissed, it is not necessary to address that question further. 17 It remains to deal with the respondent's application that the application for leave to appeal should be dismissed with costs. 18 Had the application for leave to appeal concerned only the first order made by Katzmann J on 30 November 2015, I would have concluded that the application was made without reasonable cause. The application was statute-barred. The existence and effect of s 32AB(8) was known to the applicant when she filed the application for leave to appeal. In an affidavit filed in support of that application, she said: 25. I as applicant/appellant do not have a choice, I cannot put myself at risk even that under s. 32AB 8 an appeal does not lie a decision of the Court in relation to transfer of a proceeding under subsection(1). 19 I am satisfied that the applicant should not have filed the application for leave to appeal in the face of the statutory bar and that she did so knowing that the application was not open to her. In those circumstances, the application was, in respect of the first order, filed without reasonable cause. 20 However, the same conclusion is not open with respect to so much of the application for leave to appeal as concerned the second order. In my view, there was a respectable foundation for concern about the possible future implications of that order, sufficient to legitimise an application for leave to appeal. Once that threshold is crossed I would not be disposed to make fine distinctions between different aspects of the application in the present case. 21 For the reasons given above, at the conclusion of proceedings on 10 February 2016, I made the following orders: