Federal Court of Australia

Cavar v Secom Australia Pty Ltd [2022] FCA 1548

ORDERS

THE COURT ORDERS THAT:

1.    The draft notice of appeal received by the Court on 10 December 2022 stand as the notice of appeal.

2.    The appeal be allowed.

3.    The orders made in the court below on 26 November 2021 be set aside.

4.    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

KATZMANN J:

Introduction

1    Celia Cavar was employed by Secom Australia Pty Ltd on a part-time basis for a period of about four months until her employment was terminated. She believes that the termination was unlawful and filed an application in the court below seeking reinstatement and compensation (the substantive application). The application was summarily dismissed on 22 October 2021.

2    On 26 November 2021, in Ms Cavar’s absence, the primary judge ordered that:

Ms Cavar is restrained without first obtaining leave from the Court, pursuant to s 242 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), from instituting any new proceedings in this Court pursuant to the Fair Work Act 2009 (Cth), the Age Discrimination Act 2004 (Cth), the Racial Discrimination Act 1975 (Cth) and the Australian Human Rights Commission Act 1986 (Cth).

3    This order (hereafter the vexatious proceedings order) was made at the initiative of the court.

4    The primary judge also directed that copies of his reasons (Cavar v Secom Australia Pty Ltd (No 3) [2021] FedCFamC2G 290, hereafter, the vexatious proceedings judgment) be provided to the Registrar of the Federal Circuit and Family Court of Australia (Division 2) (FCFCoA), to another judge of the FCFCoA in an unrelated matter (Cavar v Australian Unity Home Care Services), and to the legal representatives of the respondent in another unrelated matter in the FCFCoA (Cavar v Heckenberg Protection Agency), although no lawyers had in fact been appointed and the respondent company was in liquidation.

5    In a separate judgment, delivered the same day, his Honour also ordered that Ms Cavar pay Secom’s costs of the substantive application in a fixed sum: Cavar v Secom Australia Pty Ltd (No 2) [2021] FedCFamC2G 289 (the costs judgment).

6    Ms Cavar sought leave to appeal from the vexatious proceedings judgment and an extension of time for leave to appeal the costs judgment.

7    This judgment is concerned only with the challenge to the vexatious proceedings judgment.

8    Ms Cavar filed an application for leave to appeal and a draft notice of appeal on 10 December 2021 together with an affidavit in support of her application. Programming orders were made on 19 July 2022. They include an order that the application for leave to appeal and any appeal be listed for hearing together and orders requiring the parties to file submissions. Ms Cavar filed submissions within the time fixed by those orders. Secom did not. Rather, before its submissions were due, it filed a submitting notice, reserving the right to be heard on costs. In the circumstances I determined that amicus curiae be appointed in the matter in accordance with r 9.12 of the Federal Court Rules 2011 (the Rules) to prepare written submissions to assist the Court and to appear at the hearing. Mr Shariff SC and Mr Fuller were appointed by the President of the NSW Bar Association. I express my gratitude to them both for their assistance.

Background

9    On 22 October 2021 the primary judge summarily dismissed an application by Ms Cavar in which she sought reinstatement and compensation for unlawful dismissal from her employment and discrimination in reliance on the Fair Work Act 2009 (Cth), the Anti-Discrimination Act 1977 (NSW), the Sex Discrimination Act 1984 (Cth), the Age Discrimination Act 2004 (Cth) and the Racial Discrimination Act 1975 (Cth): Cavar v Secom Australia Pty Ltd [2021] FedCFamC2G 163 (summary dismissal judgment). His Honour did so, having determined that, taking her case “at its highest”, there were no reasonable prospects of success. He described the case as one consisting of “a series of inflammatory allegations of criminal conduct and/or conspiracies, including at the hands of organised crime by the respondent”. His Honour noted that Ms Cavar was “unable to point to independent or corroborative evidence to support those allegations”.

10    At the same time his Honour directed Ms Cavar to appear personally before the court at 10.00 am on 18 November 2021 to provide submissions and argument as to why the court should not make orders of its own motion pursuant to s 239 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCoA Act) that:

a.    Any current proceedings before this Court be stayed; and

b.    Ms Cavar be prohibited from further instituting proceedings in this Court in relation to claims under the Fair Work Act 2009 (Cth), the Age Discrimination Act 2004 (Cth), the Racial Discrimination Act 1975 (Cth) and the Australian Human Rights Commissions Act 1986 (Cth).

11    The impetus for the court’s action appears to have been the fact that, during the hearing of the summary dismissal application, the lawyer for Secom provided the court with a document outlining what his Honour described as “Ms Cavar’s extensive history of similar litigation within this and other Courts and Tribunals”.

The reasons of the primary judge

12    The primary judge identified the two issues he needed to resolve as:

(1)    whether Ms Cavar has “frequently” instituted proceedings in Australian courts or tribunals; and

(2)    whether the proceedings were “vexatious proceedings” within the meaning of the term in s 7 of the FCFCoA Act.

13    His Honour mentioned that 17 proceedings had been instituted in various courts and tribunals since 2008, which included two matters which had been discontinued (one filed in the Federal Circuit Court, the other in this Court) and two which were pending ([12]–[14]). He referred specifically to seven proceedings initiated by Ms Cavar over 12 years. Based on a review of those proceedings (at [12]–[24]) his Honour concluded that Ms Cavar had frequently instituted proceedings in Australian courts and tribunals.

14    His Honour then proceeded to address the second issue. He began by referring to Ms Cavar’s failure to appear at the hearing, stating at [26]:

When the matter was called on, Ms Cavar did not appear. Ms Cavar had previously indicated that she was unable to appear personally as she was not fully vaccinated against Covid 19. Ms Cavar was then advised that she could appear by telephone. Ms Cavar did not dial into the Court’s teleconference system prior to the hearing and then in open Court, and attempts were made to contact her by email and on the mobile number provided in her address for service. In each case, the call went straight to voicemail. Noting that the time, date and manner in which Ms Cavar could participate in the hearing had been advised to her by email prior to the Cavar v Secom Australia Pty Ltd (No 3) [2021] FedCFamC2G 290 hearing, the Court determined that it would proceed with the matter, pursuant to r 13.06(1)(e) of the Rules, in her absence. In so doing, the Court notes that on previous occasions Ms Cavar has summarily removed herself from hearings by either disconnecting from the telephone call or simply walking out of the hearing room.

15    His Honour moved on to Ms Cavar’s written submissions, observing (at [29]) that some of the matters raised in them “provide evidence to support a conclusion that the conduct of the litigation [against Secom] … is in a manner that is an abuse of the process of the Court, and/or she is prepared to make serious allegations without any evidence to support them”. He also noted that “the substantive allegations made by Ms Cavar were that she was also being discriminated against by [Secom] due to her age, ethnicity and religion”. His Honour remarked “[t]his appears to be a common theme in the litigation set out above”.

16    His Honour gave short shrift to Ms Cavar’s point that she had settled a number of proceedings and that no adverse costs order had been made in some others, expressing the opinion that that circumstance did not necessarily indicate that the proceedings had reasonable prospects of success (at [31]). His Honour also referred to further submissions from Ms Cavar (at [32]) which, he said, contained “unfounded allegations” that Ms Cavar was “the victim of criminal conduct at the hands of Secom”.

17    His Honour described Ms Cavar’s submissions as a whole as “misconceived, disjointed, difficult to follow, and contain[ing] scandalous unsupported allegations against both the Court, and officers [of] Secom and their legal representative” (at [33]).

18    His Honour then turned to the submissions made on behalf of Secom (at [34]):

The legal representative for Secom submitted that Ms Cavar has an extensive history of similar litigation, including various appeals against first instance rulings. Six costs orders have been made against Ms Cavar. Ms Cavar was unprepared to consider reasonable commercial settlement offers made by the respondent on two occasions. As a result, the respondent has incurred substantial costs defending proceedings that were doomed to fail. Further, Ms Cavar has made serious unsubstantiated allegations of criminal and other conduct by officers of the respondent. When faced with a ruling by the Court against her, Ms Cavar then made serious and inflammatory allegations against the Court. Ms Cavar’s actions today by absenting herself from the proceedings show a disrespect of the Court and its processes.

19    His Honour concluded at [35]–[36]:

Given the history set out above, the Court is satisfied that the substantive proceedings meet the definition contained within s 7 of the Act as being vexatious, in that they have been instituted without reasonable ground and have been conducted in a manner that is harassing and annoying of the respondents. This finding is based on an assessment of the totality of the proceedings including all of her Affidavits, her submissions and the Court’s findings in summarily dismissing the substantive application.

Based on her litigation history, the Court is further satisfied that Ms Cavar is likely to pursue further vexatious proceedings if not subjected to an appropriate restraint to prevent the waste of Court resources and time, as well as unnecessary cost to the community in respect of proceedings that have no reasonable prospects of success.

The legislative context

20    Before going any further, it is convenient to refer to the relevant legislative provisions under which the primary judge was proceeding. They appear in Ch 4 Pt 8 of the FCFCoA Act.

21    The power to make a vexatious proceedings order is conferred by s 239 of the FCFCoA Act, which commenced on 1 September 2021. It relevantly provides as follows:

Making vexatious proceedings orders

(1)    This section applies if the Federal Circuit and Family Court of Australia (Division 2) is satisfied:

(a)    a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals[.]

….

(2)    The Federal Circuit and Family Court of Australia (Division 2) may make any or all of the following orders:

(a)    an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b)    an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c)    any other order the Court considers appropriate in relation to the person.

Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

(3)    Subsection (2) applies in relation to proceedings in the Federal Circuit and Family Court of Australia (Division 2) other than proceedings under the Family Law Act 1975.

Note: Part XIB of the Family Law Act 1975 deals with vexatious proceedings under that Act.

(4)    The Federal Circuit and Family Court of Australia (Division 2) may make a vexatious proceedings order on its own initiative on the application of any of the following:

(a)    the Attorney-General of the Commonwealth or of a State or Territory;

(b)    the Chief Executive Officer;

(c)    a person against whom another person has instituted or conducted a vexatious proceeding;

(d)    a person who has a sufficient interest in the matter.

(5)    The Federal Circuit and Family Court of Australia (Division 2) must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(6)    An order made under paragraph (2)(a) or (b) is a final order.

(7)    For the purposes of subsection (1), the Federal Circuit and Family Court of Australia (Division 2) may have regard to:

(a)    proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b)    orders made by any Australian court or tribunal; and

(c)    the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

22    “Vexatious proceeding” is defined in s 7 of the FCFCoA Act to include:

(a)    a proceeding that is an abuse of the process of a court or tribunal; and

(b)    a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)    a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)    a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

23    “Proceeding” is defined in s 7 to mean:

(a)    in relation to a court—means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal; and

(b)    in relation to a tribunal—means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding.

24    Section 241 relevantly provides:

Proceedings in contravention of vexatious proceedings order

(1)    If the Federal Circuit and Family Court of Australia (Division 2) makes a vexatious proceedings order prohibiting a person from instituting proceedings, or proceedings of a particular type, in the Court:

(a)    the person must not institute proceedings, or proceedings of that type, in the Court without the leave of the Court under section 244; and

(b)    another person must not, acting in concert with the person, institute proceedings, or proceedings of that type, in the Court without the leave of the Court under section 244.

(2)    If a proceeding is instituted in contravention of subsection (1), the proceeding is stayed.

…

The preliminary questions

25    Two preliminary questions arise. The first arises from a notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth) (s 78B notice) filed by Ms Cavar. The second arises from the application for leave.

The “constitutional issues”

26    Section 78B(1) of the Judiciary Act imposes an obligation on a court not to proceed in a pending cause that “involves a matter arising under the Constitution or involving its interpretation ... unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court”.

27    In her s 78B notice Ms Cavar asserted that the primary judge “breached section 51(xxxlx) to exercise of power given by Parliament/Government, judge’s abuse of power and principles of against judicial independence and his extension in applicant's further case and influence on other judges with his unlawful directions is a breach of section 71 or section 77 which require jurisdiction to engage in activities necessary or convenient for effective exercise of the jurisdiction”. She claimed that her “Natural Human Rights” were taken from her by “one corrupted judge” and she was being penalised and prohibited from exercising them in the Federal Circuit Court (as the FCFCoA (Div 2) was formerly known), although she is an Australian citizen with no criminal record.

28    The application book included a letter dated 20 July 2022 from Ms Cavar addressed to the Commonwealth “Attorney-General Department”. The application did not include a reply or proof of service. At the hearing of the appeal, however, Ms Cavar informed the Court that she had served it and had received a response in which she was told that the Attorney-General had no interest in her case unless the matter ended up in the High Court after a grant of special leave. It does not appear that the Attorneys-General for the States have been served.

29    Regardless, the obligation under s 78B does not arise in every case in which a constitutional point is taken and it did not arise in this case. A cause does not involve a matter arising under the Constitution or involving its interpretation merely on the say-so of a litigant (Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74 per Toohey J) and it will not involve such a matter if the asserted constitutional point is frivolous or vexatious or otherwise raised as an abuse of process (Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292 at [14] per French J). As French J observed in Berbatis at [14], s 78B “does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be”.

30    The amici curiae submitted that the appeal does not raise a matter arising under the Constitution or involving its interpretation. I agree.

31    Section 51(xxxix) of the Constitution has nothing to do with the judicial power of the Commonwealth or the separation of powers doctrine. It relates to the legislative power of the Parliament. More particularly, it confers power on the Parliament to make laws with respect to matters incidental to the execution of any power vested by the Constitution in the Parliament, the Government, the federal judiciary or a department or officer of the Commonwealth. The point raised in the notice is aptly described as frivolous or vexatious in that it is manifestly hopeless: see Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16, 96 ALJR 476 at [70]–[76] (Edelman J). Section 239 of the FCFCoA Act expressly gave the Court power to make an order of the kind the primary judge made.

The question of leave

32    For the following reasons, leave to appeal is not required.

33    First, the primary judge’s order only restricts Ms Cavar’s right to bring proceedings in the court below. It does not affect her rights in this Court.

34    Second, the only circumstance in which she would require leave is if the primary judge’s order were interlocutory (see FCA Act, s 24(1A)). It is not. Section 239(6) of the FCFCoA Act expressly provides that an order made under subs (2)(a) or (b) is a final order.

35    In Reaper v Baycorp Collections PDL (Australia) Pty Limited [2020] FCA 631 at [47], Snaden J considered that a vexatious proceedings order made by the Federal Circuit Court under s 88Q(2)(a) of the Federal Circuit Court of Australia Act 1999 (Cth) (since repealed), which was substantially identical to s 239(2)(a), was interlocutory in nature and therefore leave to appeal was required. But his Honour did not mention, and apparently overlooked, s 88Q(6) of the repealed Act, which was the predecessor of s 239(6) and was in exactly the same terms.

The scope of the appeal

36    This is an appeal only against the making of the vexatious proceedings order. Thus, to the extent that in her evidence and submissions Ms Cavar alleges errors in the summary judgment, those allegations are irrelevant.

The appeal

37    The Court’s jurisdiction to hear and determine the appeal is conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

38    The appeal is in the nature of a rehearing in which error must be shown: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]–[22] (Allsop J, Drummond and Mansfield JJ agreeing at [1] and [2] respectively).

39    The grounds of appeal in the draft notice of appeal are unparticularised and, for the most part, relate to the summary dismissal judgment rather than the vexatious proceedings order. Consequently, the draft notice of appeal does not comply with r 36.01(2) of the Rules in that it does not specifically state the grounds relied on in support of the appeal.

40    In her affidavit Ms Cavar contended that the primary judge erred in law and made a “wrong finding”, which I take to mean reached a wrong conclusion. As she put it, the primary judge was focussed on the court cases she had brought since 2008, which she claimed were not relevant, and in many of them she succeeded. She explained (without alteration):

The appellant has succeded with Woolworths, compensation of $25.000.has been paid, with Royal Hospital they paid compensation of $5.000, Maqcuarie Nursing Home paid compensation of $15.607.20, Salmat has paid compensation of $4.000, with Uniting Org offer was just $500-insuficient and with Amity-Aged Care they called, but appellant rejected.

41    Ms Cavar alleged that the vexatious proceedings order was “NOT BASED ON ANY LEGAL GROUND” and was “A BRUTAL BREACH OF APPLICANT’S DIGNITY/RESPECT AND HIS ESSENTIAL HUMAN RIGHTS”. She went on to submit (without alteration):

That is a torture and inquisition practice exercised in 15th of century and practically appellant is placed in cathegory of not human being and without his essential rights related to workplace, protection from unlawful discrimination, protection for his mature ages and protection of his race.

42    She also made a number of scandalous and unsubstantiated allegations against the primary judge, a number of Secom’s employees and Secom’s lawyers.

43    Ms Cavar described the directions as:

UNPRESIDENTED PRACTICE MAKING INFLUENCE ON OTHER JUDGES IN APPELLANT’S MATTERS TO ACT ON SAME WAY.

44    Annexed to Ms Cavar’s affidavit was a medical certificate from a general practitioner dated 23 November 2021, which states that Ms Cavar had pain in her neck, shoulders and lower back and was “unfit for work/study” from the date of the certificate until 23 January 2022.

45    In her submissions Ms Cavar alleged that the primary judge had made multiple errors of law and that his judgment was affected by jurisdictional error. She also argued that she had not received a fair trial. She contended that she had been absent from the hearings on both 18 November 2021 and 26 November 2021, through illness, albeit without expressly identifying the nature of the illness.

Did the primary judge fall into appealable error?

46    Stone J observed in Soden v Kowalski [2011] FCA 318 at [35] that the making of a vexatious proceedings order is an “extreme” form of relief as “[i]t deprives the person subject to the order of a right that is fundamental to the preservation of a civil society governed by the rule of law, namely the right to call on the Court to resolve a dispute or adjudicate a claim simply by filing an application in the prescribed form”. Consequently, as her Honour also observed, an order of this kind is not to be made lightly. The litigant must be afforded procedural fairness. The court must take care to satisfy itself that the statutory conditions are established and, if it is so satisfied, make the necessary findings and provide adequate reasons for those findings.

47    The primary judge correctly identified the questions he was required to answer in order to satisfy himself that a vexatious proceedings order could be made. Largely for the reasons set out in the submissions of the amici curiae, however, the primary judge fell into appealable error. In these circumstances, I propose to treat the draft notice of appeal as the notice of appeal and dispense with compliance with r 36.01.

Jurisdictional error

Non-compliance with statutory precondition

48    The only proceeding which the primary judge found was vexatious was the substantive application (at [35]). To the extent that his Honour referred to specific proceedings other than the substantive application, he did so only in the course of considering whether the first precondition was satisfied. Even then, he stopped short of making a finding that any of the other proceedings were brought or conducted vexatiously. Where a finding of fact is not made, an appellate court may infer that the primary judge overlooked it or considered the finding to be immaterial: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443 (Meagher JA).

49    The amici curiae submitted that it was necessary for his Honour to consider whether each of the 17 proceedings was a vexatious proceeding within the meaning of the FCFCoA Act. That is at least doubtful. Regardless, it is not enough that the court is satisfied that one of them was vexatious, even if it suspects that that particular proceeding is not unique. It is a precondition to the exercise of the power to make a vexatious proceedings order against a person that the court is satisfied that the person has frequently instituted or conducted vexatious proceedings (FCFCoA Act, s 239(1)).

50    The primary judge was satisfied that Ms Cavar had frequently instituted proceedings in Australian courts and tribunals. That finding was open on the material before the court. But his Honour made no finding that any proceeding other than the substantive proceeding was brought or conducted vexatiously.

51    This was an appealable error. Indeed, as the amici curiae submitted, it was an error of law. It was also a jurisdictional error. Although the metes and bounds of jurisdictional error cannot be clearly defined (Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [71]), in the case of an inferior court (like the court below), the High Court observed in Craig v The State of South Australia (1995) 184 CLR 163 at 177 that, amongst other ways:

[J]urisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case.

Procedural unfairness

52    A denial of procedural fairness may also be a jurisdictional error since procedural fairness is also a pre-condition to the existence of the court’s authority to make a vexatious proceedings order. Indeed, “procedural fairness is a concomitant of the vesting of the judicial power of the Commonwealth in [a] federal court”: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [42] (Gaudron and Gummow JJ). Regardless, a court which denies a party procedural fairness will fall into appealable error.

53    The primary judge recognised that Ms Cavar had a right to be heard. He afforded her an opportunity to do so, by allowing her to make submissions, both in writing and orally. The evidence is insufficient to indicate otherwise. The medical certificate did not state that she was unable to appear in court – either in person or virtually. In any event, there is no evidence to suggest that the certificate was provided to the court or that Ms Cavar had informed the primary judge that she would be unable to appear virtually.

54    Still, the opportunity provided to Ms Cavar was not a reasonable one. That is because it was not enough for her to be given a list of judgments and decisions in proceedings she had instituted. In order to be able to answer the allegation, Ms Cavar needed to know what it was about the various proceedings she had instituted and conducted that the court considered might warrant the making of a vexatious proceedings order. Put another way, she was entitled to particulars of the basis upon which each of those proceedings might be said to be vexatious. Procedural fairness required that she be given that information before she was required to make submissions. In my view the failure to provide that information deprived Ms Cavar of a meaningful opportunity to be heard. For this reason, she was denied procedural fairness.

Other errors?

Inadequate reasons?

55    The primary judge expressed the opinion (at [36] of his judgment) that “based on her litigation history”, Ms Cavar was “likely to pursue further vexatious proceedings”. I have considered whether by the expression “litigation history”, his Honour was adverting to the 17 proceedings in the list or even the 11 that were specifically mentioned in his judgment, rather than the single one he found to be vexatious.

56    If that is the case and his Honour did in fact reach the requisite state of satisfaction about the nature of the other proceedings, then his reasons were inadequate, not least because he neglected to make findings on material questions of fact (whether any or all of the other proceedings were brought or conducted vexatiously and, if so, which) and to explain his process of reasoning in relation to those other proceedings. These are fundamental elements of the judicial duty to give reasons: Beale at 443-4.

57    Of course, the content of reasons and the extent of detail will vary according to the jurisdiction the court is exercising and the particular matter the subject of the decision: Wainohu v New South Wales (2011) 243 CLR 181 at [56] per French CJ and Kiefel J. In Hunter v Transport Accident Commission [2005] VSCA 1; 43 MVR 130 at [21] Nettle JA provided what the Full Court in Police Federation of Australia v Nixon (2011) 198 FCR 267 at [67] described as a helpful summary of the appropriate working principles. His Honour said:

[W]hile the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding [sic] are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.

58    Regrettably, the primary judge’s reasons fall short of this standard.

59    It is not enough, for example, to note, as his Honour did in relation to one proceeding (at [22]), that “leave for Ms Cavar’s complaint in relation to alleged discrimination was refused”. Nor is it enough to refer to a passing comment made in a decision, as his Honour did in relation to another proceeding (at [15]), and note that Ms Cavar’s application in that case was dismissed (at [16]). And it is not enough to note, as his Honour did (at [17]), that another application was dismissed and refer to the court’s observation that Ms Cavar left the hearing room expressing exasperation at the address by the respondent’s counsel.

60    If the primary judge was satisfied that all of the other proceedings were vexatious or that a sufficient number of them were vexatious so as to satisfy the statutory preconditions, his reasons needed to articulate, at a minimum, the basis upon which he reached that state of satisfaction. His failure to do so was an error of law.

Findings unsupported by evidence?

61    The amici curiae submitted that the primary judge also made at least two findings or inferences of fact that were unsupported by any evidence.

62    The first appears at [31] of his reasons. There, after referring to comments made by Ms Cavar in submissions about some of the earlier proceedings, including the fact that two of the proceedings had settled, his Honour said:

The Court has considered these matters, but is of the view that settlement of a matter does not indicate that there was necessarily a reasonable cause of action. There is an available inference that settlement may have occurred for purely commercial reasons to avoid significant legal costs against an unrepresented applicant.

63    It is not clear whether his Honour did draw the inference that these proceedings settled purely for commercial reasons, but if he did that was, as the amici curiae submitted, “irrelevant speculation”. The mere fact that a case is settled for commercial reasons does not signify that the proceeding is vexatious.

64    The second is at [34] of the reasons where his Honour said that Ms Cavar’s “actions today by absenting herself from the proceedings show a disrespect of the Court and its processes”. As the amici curiae submitted, there appears to have been no evidence before his Honour as to the reason for Ms Cavar’s absence. The fact that on previous occasions she had “summarily removed herself from hearings by either disconnecting from the telephone call or simply walking out of the hearing room” (as the primary judge observed at [26]) was not a sufficient basis to infer that she had made a deliberate choice not to appear on this occasion.

What orders should be made?

65    The orders of the primary judge must be set aside. I have considered whether I should decide if a vexatious proceedings order should have been made or remit the question for rehearing. Neither course seems to me to be appropriate. The first alternative is impractical and would be contrary to the requirements in s 37M of the FCA Act when not even the document provided to Ms Cavar listing the 17 judgments and decisions, let alone the judgments and decisions themselves, is before this Court. The second is unnecessary since the order was made at the Court’s initiative rather than on the application of a party and it is open to the Court, if it wishes, to take the initiative again.

66    Finally, as the orders were made at the initiative of the Court, the respondent filed a submitting notice save as to costs, and the applicant is a litigant in person, there should be no order as to costs.

Associate:

Dated:    23 December 2022