FEDERAL COURT OF AUSTRALIA

Cavar v Nursing Australia [2012] FCA 338

THE COURT ORDERS THAT:

1.    The Application for Leave to Appeal as filed on 8 December 2011 is dismissed.

2.    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

1        On 28 February 2011 Ms Celia Cavar filed in the Federal Court of Australia an Application and a Claim seeking relief pursuant to the Fair Work Act 2009 (Cth). The proceeding was transferred to the Federal Magistrates Court.

2        The Application set forth the “nature of the subject of the application” (without alteration) as follows:

1.    351 DISCRIMINATION BASED ON: AGE (AGE DISCRIMINAT. ACT 2004 (ad)

DISABILITY DISCRIMINATION ACT 1992 (ab)

ANTI-DISCRIMINATION ACT NSW (a)

EQUAL EMPLOYMENT OPPORTUNITY

2.    ALLEGED HARASSMENT

3.    MANAGEMENT NEGLECT

4.    CERTIFICATE UNDER SECTION 369 – GENERAL PROTECTION

Affidavits filed by Ms Cavar did little to assist in the claims sought to be advanced for resolution. An affidavit sworn on 27 February 2011 by Ms Cavar did little more than assert discrimination and harassment. A further affidavit was filed by Ms Cavar on 27 July 2011. That subsequent affidavit stated that she was born in Jajce Bosnia Herzegovina and had arrived in Australia in 1994 as a refugee. She became a citizen of this country in 1996. The affidavit also outlined (inter alia) the work performed by Ms Cavar at a number of hospitals in Sydney and again asserted discrimination “based on my background, religious and disability”.

3        On 26 August 2011 the Respondent to the Federal Magistrates Court proceeding, Nursing Australia, filed an Application in that Court seeking the dismissal of Ms Cavar’s case.

4        The Federal Magistrate heard that Application on 14 September 2011. At that time, the Federal Magistrate reserved her decision and made orders requiring further submissions to be lodged. In response to those orders a further affidavit was filed by Ms Cavar on 26 September 2011.

5        On 28 November 2011, the Federal Magistrate published her reasons for decision. She dismissed Ms Cavar’s Application pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001: Cavar v Nursing Australia [2011] FMCA 929.

6        Now before this Court is an Application for Leave to Appeal. That Application was filed on 8 December 2011. The “grounds of application” are there set forth – again without alteration – as follows:

1.    FWA 2009 s340, 341; 351; 352; 361; 365; 366

2.    ICCPR s.7, 16, 17, 12, 18, 26, 27; CEDAW – s.29

3.    UNIVERSAL DECLARATION OF HR 1948 AND CONVENTION OF THE PROTECTION OF THE RIGHTS OF THE MIGRANT WORKERS 1990

The affidavit filed by Ms Cavar in support of her Application for Leave to Appeal annexed a draft Notice of Appeal which simply repeated these “grounds of application”.

7        Leave is required because the dismissal of Ms Cavar’s Application by the Federal Magistrate constitutes an interlocutory decision (cf. Creditors of Antal-Air Pty Ltd v Antal-Air Pty Ltd (admin apptd) [2004] FCAFC 303 at [15], 51 ACSR 473 at 476 per Ryan, Weinberg and Crennan JJ) and therefore falls within s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

8        Ms Cavar appeared before this Court unrepresented, as she did before the Federal Magistrate.

9        At the outset of the proceeding it was understood that Ms Cavar sought to amend her Application and tender further documents in support of a proposition that her employer was Skilled Group Limited, the parent company of Nursing Australia Limited. The application to amend and to tender further documents was refused.

THE PRINCIPLES TO BE APPLIED

10        The general principles to be applied when a party seeks leave to appeal are well-settled. It is generally recognised that the considerations relevant to the exercise of the discretion are:

(i)    whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and

(ii)    whether substantial injustice would result if leave were refused supposing the decision would be wrong.

As was again restated in ACE Insurance Ltd v Trifunovski [2012] FCA 235 at [6], that test, so formulated, is “cumulative” and is not satisfied unless each limb is made out: Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139 at [5] per Ryan, Stone and Jagot JJ. But the two elements of the test are “not unrelated”: Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [20] per Kenny, Tracey and Middleton JJ. The “… sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments”: Sharp v Deputy Commissioner of Taxation (NSW) (1988) 19 ATR 908 at 910, 88 ATC 4184 at 4186 per Burchett J. The requirement that there be “substantial injustice requires something more than that the subject decision is incorrect, otherwise the criterion would be superfluous. The qualification of ‘injustice’ by ‘substantial’ points to a detriment that, while not necessarily irreparable, is more than mere inconvenience or delay in the exercise of a right”: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270 at [7], 63 IPR 373 at 376 per Black CJ and Stone J.

THE REFUSAL OF LEAVE

11        In dismissing Ms Cavar’s Application, the Federal Magistrate was clearly conscious of both:

    the fact that Ms Cavar was unrepresented (eg, [2011] FMCA 929 at [49]); and

    the fact that considerable caution should be exercised before any order is made dismissing a claim for relief and thereby precluding a claimant from pursuing an action which may have some merit ([2011] FMCA 929 at [28] to [32]).

12        The manner in which the Federal Magistrate approached her task, given the fact that Ms Cavar was unrepresented, was manifestly appropriate. The Federal Magistrate, for example, extended to Ms Cavar an opportunity to file an amended application ([2011] FMCA 929 at [6] to [7]) and considered the form of a proposed amended application which was belatedly filed ([2011] FMCA 929 at [25]). The opportunity was also extended to Ms Cavar “to file post-hearing written submissions” ([2011] FMCA 929 at [25]). By doing so, the Federal Magistrate clearly allowed Ms Cavar every opportunity to advance her claims in such manner as she saw fit.

13        The Federal Magistrate, moreover, did not confine her consideration of the claims sought to be advanced merely by reference to the form of any application or amended application or points of claim that were before the Court. She also considered the evidence that had been filed with an obvious view to discerning whether any claim for relief could be formulated – albeit not in the manner advanced by Ms Cavar: (see, eg, [2011] FMCA 929 at [34], [40]).

14        Before exercising the discretion to dismiss Ms Cavar’s Application, the Federal Magistrate also considered each of the relevant statutory provisions to which Ms Cavar referred in her Application. The relevance of those statutory provisions, and the manner in which Ms Cavar sought to obtain the benefit of those provisions, was not apparent from any of the documents filed by her. Notwithstanding that difficulty, the Federal Magistrate dealt with those provisions and such evidence as was potentially relevant to any claim that could possibly be formulated.

15        The Federal Magistrate thus addressed the prospect of a claim being made against Nursing Australia in reliance on ss 340, 341, 342, 351, 365 and 371 of the Fair Work Act: [2011] FMCA 929 at [34] to [46]. The Federal Magistrate, for example, addressed the requirement that Ms Cavar identify the “workplace right” and the “adverse action” sought to be relied upon. As an instance of the manner in which the Federal Magistrate resolved these issues adversely to Ms Cavar, reference may conveniently be made to the following conclusions in her reasons for decision:

[19] … As the respondent submitted, the points of claim do not assert that Ms Cavar had a workplace right (s.341) to participate in proceedings under a workplace law or to make a complaint or enquiry notwithstanding that such entitlements are a jurisdictional prerequisite for a finding that adverse action has taken place under the FW Act. Nor do the points of claim explain how it is contended that Nursing Australia took adverse action against Ms Cavar for one of the reasons in s.340 within s.342 of the FW Act, except insofar as there are very general and unparticularised assertions about discrimination and what may be intended to assert injury. The ‘evidence’ put before the court by Ms Cavar and her submissions did not clarify these issues or raise factual matters that would provide a basis for such a claim of adverse action by Nursing Australia.

Separately addressed were the requirements imposed by s 351 ([2011] FMCA 929 at [40]) and s 352 ([2011] FMCA 929 at [45] to [46]). The application of s 351 to a “prospective employee” was not overlooked ([2011] FMCA 929 at [40]. See also [2011] FMCA 929 at [16]). One difficulty, however, faced by Ms Cavar was her inability to make out any conduct which could fall within s 351(1). With reference to s 352, the Federal Magistrate concluded that the claim sought to be advanced by Ms Cavar in this respect maintained that she had been dismissed by Nursing Australia on 20 December 2010. Yet it was further concluded that her points of claim only alleged employment by Nursing Australia from 18 May 2010 to 13 July 2010. The Federal Magistrate elsewhere also repeatedly referred to the relevance of correctly identifying the “employer” or “potential employer”. In dealing with each of these statutory provisions, there is no error discernible such as to attract any “sufficient doubt” to warrant the grant of leave to appeal. The reasons for decision expose an understandable attempt being made by the Federal Magistrate to attempt to distil – if possible – a claim which may have some viable prospect of success at the suit of an unrepresented litigant. The attempts made, however, proved futile.

16        The Federal Magistrate also separately identified, albeit briefly, Ms Cavar’s reliance upon the Australian Human Rights Commission Act 1986 (Cth). Reference was thus made to a proposed amended application sought to be filed by Ms Cavar seeking to rely upon s 46PO of that Act ([2011] FMCA 929 at [25]). But the difficulty with that reliance was that there was no evidence of any complaint against Nursing Australia having been made to the Commission ([2011] FMCA 929 at [18] and [47] to [48]) which is a precondition to the Federal Magistrates Court exercising jurisdiction under the Act: s 46PO.

17        Reliance by Ms Cavar upon international treaties per se gives rise to no enforceable rights in domestic law.

18        The reasons for decision of the Federal Magistrate, it is respectfully concluded, expose neither:

    any potential error in the identification of the principles which inform the exercise of discretion to dismiss a proceeding; nor

    any potential error in the application of the statutory provisions sought to be relied upon by Ms Cavar to such facts as may have been established upon the evidence before the Court.

19        One final submission advanced by Ms Cavar was that the Federal Magistrate had denied her procedural fairness by either not considering evidence she sought to tender or by wrongfully rejecting such evidence. A transcript of the hearing before the Federal Magistrate was tendered. An examination of that transcript provides no support for the submission. Although Ms Cavar maintained that the transcript was inaccurate or incomplete, there was no basis upon which any such conclusion could be reached.

COSTS

20        The Respondent to the present Application, Nursing Australia, seeks an order for costs of the proceeding before this Court.

21        The power to make an order for costs is constrained by s 570 of the Fair Work Act. That section provides as follows:

Costs only if proceedings instituted vexatiously etc.

(1)    A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

(2)    The party may be ordered to pay the costs only if:

(a)    the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b)    the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

(c)    the court is satisfied of both of the following:

(i)    the party unreasonably refused to participate in a matter before FWA;

(ii)    the matter arose from the same facts as the proceedings.

22        No submission was advanced on behalf of Nursing Australia that the present proceeding was instituted “vexatiously” – but it is contended that the proceeding was instituted “without reasonable cause”. When addressing that provision, Wilcox J in Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 264 to 265 concluded as follows:

It seems to me that one way of testing whether a proceeding is instituted “without reasonable cause” is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being “without reasonable cause”. But where on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause …

This approach has since been endorsed by the Full Court in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [51] per Gray, Cowdroy and Reeves JJ. A party “cannot be said to have commenced a proceeding ‘without reasonable cause’ … simply because his argument proves unsuccessful”: R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470 at 473 per Gibbs J (as His Honour then was). See also: Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (No 2) [2007] FCAFC 145 at [14] to [16], 166 IR 23 at 27 per Cowdroy J (Spender and French JJ agreeing).

23        Irrespective of whether or not the proceeding before the Federal Magistrate could be characterised as one being “without reasonable cause”, it is concluded that the present Application for Leave to Appeal can accurately be so characterised. By the time the present Application was filed, Ms Cavar had the benefit of the reasons for decision of the Federal Magistrate. Those reasons carefully set forth the deficiencies in her claims for relief. Having had those deficiencies identified, it remained a matter for Ms Cavar to determine whether or not she wished to seek to appeal to this Court. Having decided to do so, however, her further pursuit of the claims before this Court is “without reasonable cause”. The deficiencies identified by the Federal Magistrate were so fundamental to the claim sought to be advanced by Ms Cavar that any further pursuit of those claims was “without reasonable cause”.

24        An order should be made that she pay the costs of the present proceeding.

CONCLUSIONS

25        The Application for Leave to Appeal is to be refused. It is without merit. The decision of the Federal Magistrate is not attended with error and the draft Notice of Appeal as filed by Ms Cavar does not raise any issue that should be resolved on appeal.

26        The application made at the outset of the hearing by Ms Cavar to, in effect, add a different respondent and to adduce additional evidence was an application made at far too late a time. Moreover, the present proceeding is an Application seeking leave to appeal from a decision of a Federal Magistrate. Such an application is not the occasion to seek to run a different case to that run in the Court below.

27        It should finally be noted that after the conclusion of the hearing, Ms Cavar, without leave, forwarded to the Registry of the Court and to the Respondent further written submissions. Notwithstanding the fact that those submissions were filed without leave, they have nevertheless been considered. Given the unrepresented status of Ms Cavar, it is considered of importance that she be extended every opportunity to make such submissions as she sees fit. The further submissions, however, largely repeat submissions which were previously advanced. They lead to no different conclusion.

28        There is no reason why Ms Cavar should not pay the costs of the Respondent. The present Application was instituted “without reasonable cause”.

ORDERS

The Orders of the Court are:

1.    The Application for Leave to Appeal as filed on 8 December 2011 is dismissed.

2.    The Applicant is to pay the costs of the Respondent.

Associate:

Dated:    4 April 2012