FEDERAL COURT OF AUSTRALIA

Cavar v Greengate Management Services Pty Ltd [2016] FCA 961

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal 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.

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    This is an application for leave to appeal from orders made by a judge of the Federal Circuit Court of Australia, dismissing an application that his Honour disqualify himself from hearing an application for summary judgment brought by the respondent. The hearing before the Federal Circuit Court took place on 26 February 2016, and orders on the interlocutory application were made and reasons given ex tempore the same day. The judgment was subsequently published after revision on 4 March 2016.

2    The applicant advised me at the hearing of her application in this Court that the hearing of the application for summary judgment before the primary judge proceeded to conclusion, that his Honour reserved his decision, and that judgment had not been delivered at the time of this hearing. At the time of this decision and reasons, the primary judge had not delivered judgment, which is not surprising because giving judgment would be futile if this application succeeded.

3    Leave is required to appeal to this Court from the primary judge’s refusal to grant the interlocutory application to disqualify himself: s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act). Rule 35.13 of the Federal Court Rules 2011 (Cth) provides that a written application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order was made, or on or before such date as is fixed by the Court for that purpose. No other date was fixed, so the application for leave was required to be made by 11 March 2016. The application for leave to appeal was filed on that date, so was within time.

4    The discretion to grant leave to appeal in s 24(1A) of the Federal Court Act is unfettered. However, the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Decor v Dart) at 399-400 accepted a line of authority as to the general guidance to be applied which a court should normally accept in the exercise of the discretion. That guidance comes down to two tests: (1) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered on appeal; and (2) whether substantial injustice would result if the leave were refused, supposing the impugned decision to be wrong.

5    The two guideline tests endorsed by the Full Court in Decor v Dart are not in separate compartments, but are cumulative and also bear on each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. There will continue to be cases raising special considerations and, accordingly, a court should not regard its hands as tied by the guidance in the two tests. Neither party has suggested that any special consideration applies to this case, and none is apparent.

The applicant as a self-represented litigant

6    On 11 April 2016, the respondent filed a submitting notice, save as to costs, dated 8 April 2016. Accordingly, the application for leave to appeal proceeded without any appearance from the respondent. Therefore while the applicant appeared as a litigant in person, she did not have anyone appearing against her to present any opposing point of view or arguments.

7    The applicant made submissions throughout the course of the hearing before me and in the documentary materials provided in relation to the challenges associated with being a self-represented litigant. I have taken Ms Cavar’s status as a self-represented litigant into account in considering her application for leave to appeal, including in particular the approach outlined in Hamod v State of New South Wales [2011] NSWCA 375, endorsed in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at 452 [37].

History of the proceedings

8    This matter has had a complicated history, involving two separate proceedings, one commenced in the Federal Circuit Court, and the other commenced in this Court, but transferred to the Federal Circuit Court. A short outline of that history will assist in understanding the context in which the present application for leave to appeal arises.

First proceedings – commenced in the Federal Circuit Court

9    The dispute giving rise to the proceedings in which this application for leave to appeal is made arose from applicant’s employment by the respondent from 12 August 2014, and her termination from that employment on or about 12 November 2014. On 16 January 2015, the applicant commenced proceedings in the Federal Circuit Court, alleging that her dismissal was in contravention of various provisions of the Fair Work Act 2009 (Cth) (the FW Act). References were also made to various other federal statutes.

10    On 1 April 2015, the respondent filed an application in a case seeking summary dismissal of the applicant’s case. That interlocutory application was heard by the primary judge on 25 June 2015. On 24 July 2015, the primary judge made orders and delivered reasons by which the respondent’s application for summary judgment was successful and the proceedings brought by the applicant were dismissed: Cavar v St Brigid’s trading as Green Gate Pty Ltd [2015] FCCA 1993.

11    The applicant filed an application for leave to appeal from the decision of the primary judge to dismiss her case summarily. That application was heard and determined by Flick J on 3 November 2015: Cavar v Green Gate Pty Ltd [2015] FCA 1179. The applicant was partially successful. On the same day as the hearing, Flick J made orders and delivered reasons by which the application for leave to appeal was granted, confined to the grant of leave in respect to the summary dismissal of the applicant’s claim for relief pursuant to the FW Act. The appeal was allowed in respect to the applicant’s claim for relief pursuant to the FW Act. The application for leave to appeal was otherwise dismissed. The matter was remitted to the Federal Circuit Court for reconsideration of the applicant’s FW Act claim in accordance with his Honour’s reasons (the remitted matter). There was no order as to costs.

Second proceedings – commenced in the Federal Court

12    Between the time of the primary judge’s summary dismissal of the applicant’s case on 24 July 2015 and the partial grant of leave to appeal against that decision and allowing the appeal on that point by Flick J on 3 November 2015, the applicant instituted further proceedings in this Court on 21 August 2015, relying again on the FW Act and also alleging unlawful discrimination arising from the same period of employment.

13    At a directions hearing of the further proceeding filed on 21 August 2015, Katzmann J raised with the parties whether the proceedings in this Court should be transferred to the Federal Circuit Court. Her Honour ultimately determined that the transfer should occur and made orders to that effect on 30 November 2015 under s 32AB of the Federal Court Act (the transfer matter). Order 1 of Katzmann J’s orders of 30 November 2015 was that the transfer matter be heard, in the discretion of the judge, together with or immediately after the remitted matter. Order 2 was that in the event that s 570 of the FW Act did not preclude an order for costs, costs of the proceedings in this Court be costs in the cause.

14    For completeness, it should be noted that the applicant applied for leave to appeal from the interlocutory decision of Katzmann J in the transfer matter. That application for leave to appeal was heard by Buchanan J on 10 February 2016. On 12 February 2016, his Honour dismissed that application with express provision that there be no order as to costs: Cavar v Green Gate Pty Ltd [2016] FCA 82.

Federal Circuit Court proceedings on remittal and on transfer

15    On 10 December 2015, the remitted matter and the transfer matter were listed before the primary judge for directions. At that time the primary judge made procedural orders for the two matters to be heard together. The application for recusal that is the subject of this application for leave to appeal arose in both matters.

16    The remitted matter and the transfer matter were set down for hearing before the primary judge on 26 February 2016. Four days prior to the hearing, on 22 February 2016, the applicant filed in each of the remitted matter and the transfer matter an application in a case inviting the primary judge to disqualify himself. His Honour heard those applications on the scheduled hearing day of 26 February 2016 and dismissed both applications: Cavar v Greengate Management Services Pty Ltd; Cavar v Green Gate Pty Ltd [2016] FCCA 449.

17    As noted above, after refusing to disqualify himself, the primary judge apparently (and conventionally) proceeded to hear the respondent’s application for summary dismissal of the remitted matter and the transfer matter and reserved judgment, which remains the current status of both matters so far as I can ascertain. As also noted above, within the required 14 days, the applicant filed the present application for leave to appeal from the primary judge’s refusal of the applications that he disqualify himself from hearing the summary dismissal applications.

The hearing of this application for leave to appeal

18    When this matter came on for hearing before me, I asked the applicant to identify the evidence that she relied upon for the granting of her application for leave to appeal, the facts that arose from that evidence and the legal submissions she wished to put.

19    As to evidentiary/factual material, the applicant identified two affidavits affirmed by her, the first affirmed on 11 March 2016 and the second affirmed on 14 March 2016.

20    As to submissions and other material, the applicant also relied upon her written submissions (15 pages, 77 paragraphs) dated 27 May 2016, and the following documents accompanying those submissions:

(1)    a letter apparently sent to the Federal Court Registry which was undated but apparently annexed to an affidavit of the applicant dated 6 August 2015;

(2)    a document entitled “Chronology of the event” filed in these proceedings on 27 May 2016, which is in fact a list of documents not in chronological order; and

(3)    a document entitled “Chronology of the events” filed in these proceedings on 2 June 2016, which appears to replicate the information in the 27 May 2016 “Chronology of the event”, to which is attached a document entitled “Statement of facts” dated 2 June 2016.

I advised the applicant that I would treat the letter, the two documents described as chronologies and the “Statement of facts” as submissions, rather than evidence.

21    The applicant also relied upon the application and supporting material filed in the Federal Circuit Court on 22 February 2016 and the judgments and orders of each of Flick J, Katzmann J and Buchanan J.

Consideration

22    During the course of the hearing, I asked the applicant on several occasions to identify which parts of which paragraphs of the primary judge’s reasons for refusing to disqualify himself that she asserted were in error, and what that error was. She declined each invitation to make any such identification, asserting in broad terms that it was the entirety of the actions of the primary judge that warranted his disqualification. It follows that I have had to try to discern for myself any proper basis for the applicant’s application for leave to appeal, including any appeal that would result from the success of such an application.

23    I have carefully read the applicant’s draft notice of appeal, two affidavits, all of the annexures to those affidavits, the submissions filed by the applicant in this Court, the documents accompanying those submissions, and the documents described as chronologies filed in this Court in support of this application, together with the “Statement of facts” annexed to the second document described as a chronology. As a result of reading that material, and hearing from the applicant, it is clear that she feels aggrieved by the original decision by the primary judge, in relation to which she had partial success.

24    I accept that the applicant strongly and sincerely believes that the primary judge, having given summary judgment against her in the first proceedings commenced in the Federal Circuit Court, should not have heard any aspect of the remittal matter or the transfer matter, and in particular should not have heard the respondent’s application for summary dismissal of those two proceedings. However strongly and sincerely that belief is held, it remains to be determined whether there was any error on the part of the primary judge in declining to accede to the applicant’s application to disqualify himself.

25    The applicant contended that the effect of the transfer order made by Katzmann J and the granting of leave to appeal and upholding the appeal by Flick J in respect of the FW Act aspect of the proceedings originally commenced in the Federal Circuit Court meant that the primary judge was compelled to list each of those matters for the hearing of her claims for relief. As best as I could ascertain, the applicant was asserting that it was a failure to comply with the orders of those two judges of this Court to list the hearing of the respondent’s summary dismissal application, rather than to list her applications for hearing. In my view that assertion is without foundation and does not indicate any error on the part of the primary judge, much less conduct properly grounding any application for disqualification. This complaint is based on a misunderstanding on the part of the applicant as to what the remittal decision of Flick J and the transfer decision of Katzmann J required take place in the Federal Circuit Court. For the reasons that follow, there was no obligation imposed on the primary judge by any judge of this Court not to hear the summary dismissal applications brought by the respondent.

26    As Flick J made clear in his reasons for judgment in Cavar v Green Gate Pty Ltd [2015] FCA 1179, the applicant succeeded in securing leave to appeal and having her appeal upheld in relation to the “adverse action” FW Act matters upon the basis that the primary judge’s reasons for decision did not deal expressly with certain of the matters that needed to be addressed in reaching a decision as to summary judgment. As Flick J pointed out at [22]:

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.

27    After some further comments, Flick J expressly noted that the observations his Honour had made did not confine the manner in which the applicant’s claims may finally be resolved: see [2015] FCA 1179 at [26]. His Honour expressly contemplated the possibility that when the relevant statutory provisions of the FW Act were applied to the facts that had already been found by the primary judge, or such additional facts as may be considered appropriate, the end result for the applicant may well be the same. However, that was a matter for the primary judge to resolve. It follows that Flick J expressly contemplated that this matter would be heard by the primary judge on remittal, including any summary dismissal application that might be renewed.

28    Importantly, no order was made by Flick J that the Federal Circuit Court should be differently constituted for the purposes of resolving the outstanding matters that had not previously been addressed, or sufficiently addressed. There was no apparent reason on the facts and circumstances of this case why any order should have been made constraining the original primary judge from hearing the matter remitted to the Federal Circuit Court by Flick J. The mere fact that the balance of the original application had been dismissed was certainly insufficient reason, without more, for that requirement to be imposed on the Federal Circuit Court. The law in relation to recusal, especially upon the ground of apprehended bias, is sufficiently robust for the correctness of that outcome not to be in doubt. That is clear from the leading authorities in this area, conveniently summarised by the Full Court earlier this year in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35]-[36]; see also AXQ15 v Minister for Immigration and Border Protection [2016] FCAFC 73 at [31]-[32], quoting from both ALA15 and Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 493 [13].

29    The above cases, and other well-established authority cited in ALA15, demonstrate a need for an identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, and an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits. Clear and distinct proof of such a serious allegation is needed. Merely pointing to prior adverse conclusions by a judge will not suffice.

30    The applicant’s objection to the primary judge rehearing the remittal matter or the transfer matter, or any application for summary dismissal of either claim, by reason only of his Honour’s prior summary judgment for the parts of her original claim (which was not disturbed by Flick J) provides an insufficient basis for disqualification. As I have already observed, the applicant declined to identify any error on the part of the primary judge in refusing to disqualify himself. Nothing in the affidavits by the applicant or in her submissions or in other documents furnished by her in this Court assists me in any way in identifying any error at all. To the contrary, the primary judge’s reasons, necessarily limited though they were given the apparent lack of articulation by the applicant as to why his Honour should disqualify himself, appear to me to be sound and sensible.

31    A judicial officer in the position of the primary judge should not too readily accede to an application to disqualify, especially when it, at most, seems to be based upon the bare fact of prior rulings against her by his Honour by way of summary judgment in respect of other claims, which has been left undisturbed on appeal. Indeed I would go so far as to observe that, on the material before me, it might well have been an abdication of his Honour’s duty to have acceded to such an inadequate application for disqualification. Judges often have to make adverse rulings on parts of a case brought by a party, and then proceed to hear the balance. That cannot, without more, ordinarily be a proper basis for disqualification as to the rest of the case. Something about the way in which the adverse decision proceeding or part of the proceeding was heard or decided must meet the test of apprehended bias. No attempt has been made to meet that test.

32    Taking into account all of the above considerations, I am not satisfied that the decision of the primary judge is attended with any doubt, let alone sufficient doubt, to warrant it being reconsidered on appeal. Nor do I consider that there would be any injustice, let alone substantial injustice, if leave were to be refused, because I can see no scope for supposing that his Honour’s decision not to disqualify himself was wrong.

33    Far from finding error, the primary judge was, in my view, plainly correct to proceed as he did. His Honour was right to proceed to hear and determine the part of the claim from the original matter remitted to the Federal Circuit Court by Flick J and the further claim transferred to the Federal Circuit Court by Katzmann J. There is no impediment to his Honour proceeding to judgment on the summary dismissal applications in those two matters.

Costs

34    I have considered whether the respondent should be allowed its costs, however modest, in considering the matter and deciding to file a submitting notice. However, in my view the submitting notice went no further than to reserve a right to be heard only in respect of any costs that might be awarded against the respondent, which has not transpired. The respondent did not, in terms, seek to be heard on costs in its favour. In all the circumstances, I do not consider it appropriate to award costs against the applicant on her uncontested application for leave to appeal, nor even to delay further the final resolution of this matter by providing for any further steps to be taken in that regard. Accordingly, there will be no order as to costs.

Conclusion

35    The application for leave to appeal must be dismissed. There should be no order as to costs.

Associate:

Dated:    18 August 2016