FEDERAL COURT OF AUSTRALIA

Cavar v Green Gate Pty Ltd [2015] FCA 1179

THE COURT ORDERS THAT:

1.    The Application for leave to appeal is granted but confined to the grant of leave to appeal in respect to the summary dismissal of the Applicant’s claim for relief pursuant to the Fair Work Act 2009 (Cth).

2.    The appeal is allowed in respect to the Applicant’s claim for relief pursuant to the Fair Work Act 2009 (Cth).

3.    The Application for leave to appeal is otherwise dismissed.

4.    The proceeding is remitted to the Federal Circuit Court of Australia for re-consideration in accordance with these reasons.

5.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 5 March 2015 Ms Celia Cavar filed in the Federal Circuit Court of Australia a Statement of Claim. The Respondent was named as ST. Brigit’s T/A Green Gate Pty Limited.

2    Ms Cavar pleaded, albeit less than satisfactorily, a number of causes of action as against the Respondent, including:

    breach of contract;

    discrimination contrary to the Age Discrimination Act 2004 (Cth) and the Racial Discrimination Act 1975 (Cth); and

    a contravention of the Fair Work Act 2009 (Cth) (the “Fair Work Act”).

In very summary form, Ms Cavar’s claims arose out of her employment with the Respondent. At one stage she had a permanent position. Thereafter, Ms Cavar forwarded (inter alia) an email to the Respondent’s General Manager, Ms Jenner, requesting (without alteration): “i want SWAAP MY PERMANENT CONTRACT INTO CASUAL POSITION FROM 10 SEPTEMBER 2014”. The Respondent maintained that it acceded to that request. Later, however, Ms Cavar sent another email and requested “BACK PERMANENT CONTRACT AS SOON AS POSSIBLE”. The Respondent did not accede to that request. Ms Cavar’s employment was terminated in November 2014.

3    No Defence was filed in answer to the Statement of Claim. What was filed by the Respondent shortly after the filing of the Statement of Claim was an application that the proceeding be summarily dismissed.

4    In July 2015 a Judge of the Federal Circuit Court of Australia amended the name of the Respondent and thereafter proceeded to dismiss the application pursuant to r 13.10 of the Federal Circuit Court Rules 2001 (Cth): Cavar v St Brigid’s t/a Green Gate Pty Ltd [2015] FCCA 1993. In making that order the Federal Circuit Judge had before him a number of documents, including:

    the Statement of Claim;

    the application that the proceeding be summarily dismissed;

    an affidavit of the solicitor for the Respondent, Mr Thomas Brett, which set forth the “background” to the proceeding and which annexed (inter alia) a series of e-mails to and from Ms Cavar and officers of the Respondent;

    an Outline of Submissions filed by the Respondent on 6 May 2015; and

    an Outline of Submissions filed by Ms Cavar on 18 May 2015.

5    In August 2015 Ms Cavar filed in this Court an Application for Leave to Appeal.

6    The matter came before the Court as presently constituted on 2 November 2015 when Ms Cavar made an application that I disqualify myself by reason of having delivered an earlier judgment in another proceeding to which she was a party: Cavar v Nursing Australia [2012] FCA 338. The matter was stood over to today (3 November 2015), at the request of Ms Cavar, with a view to resolving:

    the application for disqualification;

and, in the event that that application failed:

    the application for leave to appeal.

This morning a further application was made by Ms Cavar, namely:

    that Mr Brett be restrained from further participating in the present proceeding.

The last application can be summarily rejected. There was no basis established as to why Mr Brett should be restrained from further representing the Respondent.

7    Given the fact that another proceeding instituted by Ms Cavar (NSD 988 of 2015) has been stood over to a future date pending the resolution of the present application, it is desirable that judgment be delivered immediately. The issues can be resolved without any great exposition of either the facts or the relevant legal principles. Both the facts and the law are within a narrow compass.

The disqualification application

8    The application for disqualification made by Ms Cavar was not supported by Counsel for the Respondent.

9    The principles to be applied are well-settled and need not be canvassed in any great detail. In summary form, the test is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Michael Wilson & Partners Limited v Nicholls [2011] HCA 48 at [31], (2011) 244 CLR 427 at 437 per Gummow A-CJ, Hayne, Crennan and Bell JJ.

10    The application is rejected. The test is not satisfied.

11    The application made by Ms Cavar, however, was not without some substance. The issues involved in Cavar v Nursing Australia unquestionably have a close parallel to the issues to be resolved in the present proceeding. There in question was again an application for leave to appeal from a decision of the then Federal Magistrates Court. That earlier case also involved claims of discrimination and claims pursuant to the Fair Work Act. That application for leave to appeal was dismissed.

12    But the mere fact that a Judge of this Court has heard a previous application in another proceeding involving the same party, it is respectfully considered, does not of itself give rise to a reasonable apprehension of bias. Nor does the fact that the legal issues to be resolved may have a close parallel with those now under consideration. Taken together, however, such factors give rise to questions of individual judgment.

13    In rejecting the application for disqualification, the factors that have been taken into account include:

    the fact that the earlier decision, unsurprisingly, did not involve any finding as to credit or any adverse factual finding in respect to Ms Cavar;

    the fact that the earlier decision was dictated by reference to well-accepted principles as to the manner in which the discretion to summarily dismiss a proceeding is to be exercised and the application of those principles to facts not substantially put in issue; and

    the fact that the present case is decided by reference to facts and circumstances peculiar to the present claims for relief and it is only the prior exposition of the well-accepted principles which could arguably found any reasonable apprehension of bias.

Such factors, it has been concluded, do not found any reasonable apprehension of bias.

14    Even more so than those cases where a Judge has refused to disqualify himself by reason of having previously resolved an interlocutory application in the same proceeding (e.g., Sebel Furniture Ltd v Acoustic & Felts Pty Ltd (No 2) [2009] FCA 291), the prior involvement of a Judge in a different case – albeit involving the same litigant – will ordinarily not be a sufficient basis for any application for disqualification. Different considerations may well apply where, in an earlier interlocutory application, comments have been made as to the strengths of the case ultimately advanced for resolution (e.g., Embertec Pty Ltd v Energy Efficient Technologies Pty Ltd (No 2) [2013] FCA 347) – but, even then, tentative comments as to aspects of the case may not be sufficient (e.g., Shaw v Australian Pump Industries Pty Ltd [2015] FCA 547).

The application for leave to appeal

15    A judgment summarily dismissing a proceeding, as in the present case, is an interlocutory decision: Creditors of Antal-Air Pty Ltd v Antal-Air Pty Ltd [2004] FCAFC 303 at [15], (2004) 51 ACSR 473 at 476 per Ryan, Weinberg and Crennan JJ. Leave to appeal is required: Federal Court of Australia Act 1976 (Cth), s 24(1A). Considerations relevant to the grant of refusal of leave may be summarised as being:

(a)    whether in all the circumstances the judgment of the primary Judge is attended by sufficient doubt to warrant it being re-considered on appeal; and

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

These considerations are “cumulative” and are not satisfied unless each limb is made out: Rawson Finances Pty Ltd v Commissioner of Taxation [2010] FCAFC 139 at [5], (2010) 81 ATR 36 at 38 per Ryan, Stone and Jagot JJ. “Bare assertions of error … will clearly be insufficient”: Nyoni v Chee Koon Hee (No 2) [2014] FCA 83 at [32] per McKerracher J. The principles to be applied have also been previously set forth in Cavar v Nursing Australia and need not be again repeated.

16    It is respectfully concluded that the Federal Circuit Court Judge’s reasons for decision in the present case in respect to all claims, other than in respect to “adverse action”, do not warrant the grant of leave to appeal. With reference to the facts of the present case, the findings made by the primary Judge in respect to those other claims are such as not to give rise to any prospect that an appeal would have any reasonable prospects of success. The decision of the primary Judge is not attended with sufficient doubt to warrant the grant of leave.

17    It is the reasoning in respect to the “adverse action” claim, however, that warrants further consideration.

18    The Statement of Claim stated in part as follows (without alteration):

11.    The respondent took adverse action towards the applicant and by way of avoiding to respond on applicant’s request for roster by email.

12.    The respondent took adverse action towards the applicant avoiding to have a meeting in relation to applicant’s roster and continuing employment.

…

16.    As a result of the respondent’s contravention of not comply with the applicant’s requests for work, breaches of work place law, and breach of trust in regards applicant’s employment and earning, the applicant has suffered damage and unlawful discrimination and claims the amount of $298,454.24

There thereafter followed the “Particulars” in respect to “professional negligence” and “misrepresentation”. There then followed (without alteration):

Particulars of Adverse Action

(a) that respondent took adverse action towards the applicant not offering work for whole week from 15 to 22 of Oct 2014,

(b) that respondent has changed the applicant’s job to his disadvantage,

(c) that respondent took adverse action towards the applicant on 26 of Aug 2014, straithforward applicant’s full time position to another staff Pretty,

(d) that respondent has treated the applicant differently that other staff,

(e) that respondent has offered different and unfair terms and conditions, as casual employee with only one shift per week from 01 of Nov 2014,

(f) that respondent has cancelled few shifts in period from 01 of Nov until 12 of Nov,

(g) that respondents performance was very poor and his accusations at the beginning of any shift since 01 of Nov 2014 was not appropriate.

(h) that respondent’s comments to the applicant at the beginning of shift on 11 of Nov 2014, in terms of employment position as casual, and rostering were not appropriate and no reasonable,

(i) that respondent’s spoken words in the effects are material facts and the applicant must citate it’s: “You are casual employee, go home, you are not on roster”,

(j) that respondent deliberately has breached his duty blocking access to work and deactivating access card into premise on 12 of Nov 2014,

(k) that respondent applied enormous pressure on the applicant for all above mentioned certain actions.

There then followed the “Particulars” in respect to “unlawful discrimination” and “damages.”

19    The lack of precision in the pleading may presently be left to one side.

20    After referring to the relevant statutory provisions and the “relevant facts”, the reasons for decision of the Federal Circuit Court Judge now in question address the factual issues sought to be canvassed by Ms Cavar under the headings of:

    the “Verbal agreement”; and

    the “Other claims” – being claims addressed in the Statement of Claim by way of particulars as to “professional negligence”; “misrepresentation”; “adverse action”; and “unlawful discrimination”.

21    The reasoning in respect to that part of Ms Cavar’s claims relating to “adverse action” set forth the “Particulars” in respect to that part of her claim and thereafter proceed as follows:

[27]    The complaint that the respondent changed Ms Cavar’s job to her disadvantage is contradicted by her own emails which show that it was done at her request. Further, the amount of work which Ms Cavar was given was a consequence of her change to casual employment and the vagaries to which such work was subject in the respondent’s business and the related allegation of discrimination lacks meaningful substance because it is unparticularised. Additionally, the fact that another employee was appointed to fill the permanent position which Ms Cavar had vacated voluntarily could not amount to adverse action because that action did not concern her. Finally, none of the remaining particulars of the allegation, to the extent to which they might amount to adverse action, appear to have had anything to do with Ms Cavar’s age or ethnicity. The evidence only supports a conclusion that the respondent’s treatment of Ms Cavar from October 2014 onwards reflected the nature of her employment and her conduct.

It may be that these findings inferentially address the entirety of the factual and legal issues to be resolved in an “adverse action” claim. But there can be no certainty of that.

22    The difficulty experienced in respect to this part of the reasoning essentially focusses upon the failure:

    to expressly identify the “workplace right” which may come within s 341 of the Fair Work Act;

and the failure:

    to expressly address the potential application of s 361 of that Act and the manner in which the Respondent discharged any onus imposed by that section.

Concern is also expressed as to the absence of any:

    express consideration given by the primary Judge to the allegation in para [12] of the Statement of Claim and the request for “a meeting”. In evidence before the Federal Circuit Court was a request for a meeting made by Ms Cavar on 31 October 2014 and arrangements made for a meeting to be held on 10 November 2014. But no reference is made to this evidence and no finding of fact has been made in respect to para [12].

Counsel for the Respondent properly acknowledged that para [27] of the primary Judge’s reasons for decision did not deal expressly with such matters. His submission, however, was that the reasons of the primary Judge – and para [27] in particular – were not to be “construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Whether this approach should be applied to the reasons for decision of a Judge of the Federal Circuit Court need not be resolved. Read in the context that the “adverse action” part of the case being advanced was not the primary focus of attention, as opposed to the contract claim, para [27] (and, in particular, the last sentence of that paragraph) it was nevertheless submitted, adequately addressed all relevant issues. The last sentence, it was submitted, contains an implicit finding by the primary Judge that:

    the reverse onus of proof provision was either not engaged;

or, if engaged:

    the Respondent had discharged the onus placed upon it.

The submission is rejected. The simple fact remains that the primary Judge left unresolved (or, at least, not expressly resolved) the central issues of relevance to the “adverse action” part of Ms Cavar’s claims. No satisfactory conclusion can presently be reached that the “adverse action” claim would necessarily have been dismissed had those matters been expressly addressed.

23    In expressing these observations as to the reasoning process, it must necessarily be recognised that the Federal Circuit Court Judge certainly gained no assistance from Ms Cavar’s pleadings and the fact, as recorded in the reasons provided, that “Ms Cavar walked out of the courtroom, expressing exasperation at the address being made to the Court by counsel for the respondent”: [2015] FCCA 1993 at [3]. Nor was much assistance provided by Ms Cavar in her written submissions that had been filed in May 2015. Those submissions only made the following scant reference to the “adverse action” claim (without alteration):

11.    In particular in period from 1 of Nov 2014 until 12 of November 2014 the applicant’s shifts have been cancelled, and three shifts have been sent home with explanation cited: ‘You are not on roster.”

12.    The fact that on 12 November applicant’s was cancelled shift and entry to work premise was blocked at Maroubra is the latest material fact that the defendant deliberately was doing wrong with intention to degrade, humiliate, harass and make financial disadvantage to the applicant.

13.    In particular the claims based on ground of Fair Work Act involve adverse action and work place rights pursuant s. 340 & 342; Under influence and pressure pursuant s.344; Misrepresentation pursuant s. 349; discrimination to s.351 and Advising and encouraging wrong pursuant s.362 and coercing action-replacing the applicant’s position with other staff with details stated in Statement of Claim and Application – Fair Work and General Protection Application lodged at that court.

No doubt given the previous lack of prominence of the “adverse action” claim, the Respondent’s written submissions were less fulsome than may otherwise have been the case. But those submissions in relevant part provided as follows:

33.    Fourthly, in relation to any claim under the FW Act, the statement of claim does not identify a relevant workplace right, for the purposes of s 341 of the FW Act. At its highest, the statement of claim pleads in paragraph 6 that the applicant made a request on 1 October 2914 to be placed on “his regular roster”. Of course, by that time, the respondent had accepted the applicant’s request to “swap” her permanent employment into casual employment. The applicant was rostered on and performed casual shifts both before leaving for her period of absence and after her return. The applicant had no “workplace right” to have her casual employment converted to permanent employment.

34.    It is not clear how the applicant puts her case in relation to s 342(1) of the FW Act. To the extent there was any ‘alteration to position’, this came about solely because of the applicant’s request that her employment be swapped from permanent to casual employment. The termination of the applicant’s employment came about due to performance issues, unrelated to that request. Indeed, the respondent continued to roster the applicant for shifts and the applicant continued to work those shifts.

Although those submissions focussed attention upon the need to identify the “workplace right”, the submissions omit to make any express reference to the reverse onus of proof provision.

24    Given this lack of precision in the submissions being advanced, no inference should be drawn that para [27] of the primary Judge’s reasons for decision, or the last sentence of that paragraph, inferentially address and resolve the “adverse action” claim.

25    Contrary to the situation in Cavar v Nursing Australia, the Federal Circuit Court Judge in the present case proceeded to summarily dismiss the claims being advanced without affording Ms Cavar the same opportunity to address and remedy those deficiencies in her claims as warranted the refusal of leave to appeal in that earlier decision and without the same express reference to the relevant legislative provisions: [2012] FCA 338 at [12] to [15].

26    But such observations do not confine the manner in which Ms Cavar’s claims may finally be resolved. The facts as set forth in para [27] of the existing reasoning may well ultimately prevail to the detriment of Ms Cavar. It may well be that when such statutory provisions as ss 341 and 361 of the Fair Work Act are applied to such facts as have been found, or such additional facts as may be considered appropriate, the end result for Ms Cavar may be the same. But that is a matter for the Federal Circuit Court Judge to resolve.

27    It may well be the case that some claims of “adverse action” can be – and should be – summarily dismissed. It may well not be sufficient for a claimant to simply “assert” the contravention of a “workplace right” and thereafter force upon a respondent the necessity to fully expose at a contested and potentially lengthy hearing the basis upon which it has proceeded in making a decision adverse to an employee. To so conclude would be to seriously circumscribe the powers conferred upon both the Federal Circuit Court and this Court to summarily dismiss proceedings which have no substance or merit.

28    There can be no doubt that these statutory discretionary powers to summarily dismiss a proceeding were conferred with a view to “strengthening” the power of Courts to enter summary judgment and to “soften the test for a successful application for summary judgment”: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 at [25], (2009) 178 FCR 401 at 408 per Spender, Graham and Gilmour JJ.

29    But “caution” should be exercised in the exercise of those powers: Spencer v Commonwealth [2010] HCA 28 at [24], (2010) 241 CLR 118 at 131 per French CJ and Gummow J. It is necessary to ensure that a party suffers no “injustice” in the summary dismissal of a case: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [45], (2006) 236 ALR 720 at 731 per Rares J. Subsequently, Jacobson J observed in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 1416 has observed:

[30]    … The authorities relating to the proper construction and effect of s 31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31]–[48]. His Honour stated the relevant principles at [45] and they may be summarised as follows:

*    In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal.

*    There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing.

*    Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.

*    Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened.

30    When exercising a power to summarily dismiss a proceeding, a Court should be careful to expose in its reasoning the basis upon which it has proceeded. Great care should be exercised. Especially in those cases where a claim has been poorly articulated, either by reason of cultural or other impediments in the path of a claimant, the necessity for clearly articulated reasons for the summary dismissal of a claim becomes imperative.

31    It matters not, with respect, whether this conclusion as to the granting of leave to appeal be approached from the stand-point of the inappropriateness of summarily dismissing a claim where there may be factual issues to be resolved, or from the stand-point of an erroneous exercise of discretion. The end result is the same.

32    During the course of the hearing of the application for leave to appeal, Ms Cavar referred to further evidence she would seek to call in respect to her claim under the Fair Work Act. That further evidence was said to be directed to the reasons for the termination of her employment. It was said to be contained within a conversation that took place shortly before the hearing of the matter by the Federal Circuit Court Judge. The fact that Ms Cavar was unrepresented, and her understandable anxiety regarding the imminent hearing, were relied upon by her as reasons why she did not foreshadow before that Court the desire to call this additional evidence. Such additional evidence, with respect, assumes no immediate relevance to the application for leave to appeal. It may, perhaps, support a conclusion as to the inappropriateness of ordering the summary dismissal of a claim without examining with some care the available evidence.

CONCLUSIONS

33    The application for the Court to be reconstituted is rejected. So, too, is the application for an order restraining Mr Brett from further participation in the proceeding.

34    The application for leave to appeal is dismissed, other than in respect to the grant of leave to appeal confined to the claim alleging “adverse action”. If leave to appeal were to be granted, the Respondent quite properly did not oppose an order being made that the appeal be allowed instanter and the matter remitted to the Federal Circuit Court confined to the resolution of the claim in respect to “adverse action”. It would remain a matter for that Court to determine the manner in which that claim, or any further interlocutory application, should be resolved and the evidential basis upon which it should proceed. Ms Cavar will, presumably, urge upon the Federal Circuit Court Judge that such additional evidence as she referred to before this Court should also be taken into account. But that, again, is a matter for the Federal Circuit Court Judge to resolve.

THE ORDERS OF THE COURT ARE:

1.    The Application for leave to appeal is granted but confined to the grant of leave to appeal in respect to the summary dismissal of the Applicant’s claim for relief pursuant to the Fair Work Act 2009 (Cth).

2.    The appeal is allowed in respect to the Applicant’s claim for relief pursuant to the Fair Work Act 2009 (Cth).

3.    The Application for leave to appeal is otherwise dismissed.

4.    The proceeding is remitted to the Federal Circuit Court of Australia for re-consideration in accordance with these reasons.

5.    There be no order as to costs.

Associate:    

Dated:    4 November 2015