Dowling v Kirk [2008] FCA 165 (18 January 2008)

SHANE DOWLING v DAVID KIRK AND ORS
NSD 26 OF 2008

SHANE DOWLING v DAVID KIRK AND ORS
NSD 39 OF 2008

SHANE DOWLING v JOHN FAIRFAX PUBLICATIONS PTY LTD
NSD 40 OF 2008

RARES J
18 JANUARY 2008
SYDNEY

BETWEEN:	SHANE DOWLING Applicant
AND:	DAVID KIRK First Respondent LINDA PRICE Second Respondent CAROLYN BRADLEY Third Respondent SHIVCHAND JHINKU Fourth Respondent

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN:

SHANE DOWLING
Applicant

AND:

DAVID KIRK
First Respondent

RON WALKER
Second Respondent

JULIA MARION KING
Third Respondent

ROGER CORBETT
Fourth Respondent

MARK BURROWS
Fifth Respondent

DAVID EVANS
Sixth Respondent

PETER YOUNG
Seventh Respondent

JOHN FAIRFAX
Eighth Respondent

NICHOLAS FAIRFAX
Ninth Respondent

GAIL HAMBLY
Tenth Respondent

LINDA PRICE
Eleventh Respondent

CAROLYN BRADLEY
Twelfth Respondent

KELLY DALY
Thirteenth Respondent

NATALIE CARRINGTON
Fourteenth Respondent

YEMEE FERNANDES
Fifteenth Respondent

KEVIN STOKES
Sixteenth Respondent

ROBERT WHITEHEAD
Seventeenth Respondent

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN:	SHANE DOWLING Applicant
AND:	DAVID KIRK First Respondent LINDA PRICE Second Respondent CAROLYN BRADLEY Third Respondent SHIVCHAND JHINKU Fourth Respondent

BETWEEN:

SHANE DOWLING
Applicant

AND:

1 These are three applications for leave to appeal from decisions made by a Federal Magistrate: Dowling v John Fairfax Publications Pty Ltd [2007] FMCA 2104, Dowling v Kirk [2007] FMCA 2106 and Dowling v Kirk [2007] FMCA 2105, to which I will refer respectively as the principal proceedings, the directors and officers proceedings and the contempt proceedings.

2 The principles which govern the grant of leave to appeal are well-known. An applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and must also show that substantial injustice will result from a refusal of leave to appeal: Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.

3 Mr Dowling who appeared for himself, as he did in the Court below, asserts that the Federal Magistrate exhibited actual or apparent bias in respect of all three applications. His Honour dealt in the principal judgment with the basis upon which that allegation had been made to him: Dowling v Fairfax [2007] FMCA 2104 at [94] ff.

4 The allegation of bias was further elaborated by Mr Dowling at length during the course of the applications before me. He asserted that because Freehills, the solicitors for the respondents in each of the proceedings, had written to the Federal Magistrates Court after the directors and officers proceedings had been filed, their removal from the Federal Magistrate’s docket (to which they had been allocated) and referral to the trial judge, demonstrated some impropriety or bias which a reasonable person would consider affected his Honour’s determination. In addition, Mr Dowling asserted that action in the registry of the Federal Magistrates Court to place the contempt proceedings in his Honour’s docket also demonstrated bias.

5 In my opinion, there is not the slightest doubt that his Honour was correct to dismiss the allegations of bias made to him for the reasons that he gave. Not only do I see no error in those reasons, they are undoubtedly correct. There would be no utility in granting leave to appeal on that basis. Mr Dowling appears to consider that in some way the administrative decision within a court to allocate matters to a particular judicial officer for hearing is able to warrant a complaint of bias. That is a misconception. It is for the court to determine how proceedings instituted before it are to be allocated to judicial officers and dealt with most efficiently. In the present state of the proceedings and as they were before his Honour, the utility of having all of these three interrelated applications heard by the one judicial officer, cognately, is overwhelming.

6 Part of Mr Dowling’s complaint of bias was that his Honour in effect found against him. That is transparently unsubstantiable. It seems to me, having read his Honour’s reasons for decision, that they demonstrate a willingness to hear and determine the matters impartially and fairly, as one would expect. I see no substance in the allegations made to his Honour or before me, concerning his Honour’s conduct or decisions as to how best to progress with and deal with the hearing of the various applications and motions before him.

7 I am satisfied that there is not the slightest basis for any of the allegations of bias which Mr Dowling made. In my opinion there is no reason based upon the proper application of principles to grant leave to appeal on this ground, in any of the three proceedings.

8 In the principal proceedings, his Honour considered an application under s 17A of the Federal Magistrates Court Act 1999 (Cth) by the respondent, Fairfax, for summary judgment in respect of what was then the substantive claim made by Mr Dowling, namely that he had been dismissed in contravention of s 659(2)(e) of the Workplace Relations Act 1996 (Cth).

9 His Honour dealt with that application on the basis that he was bound by decisions of the Full Court of this Court in He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 and Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99; (2005) 144 FCR 347, as well as the decision of Buchanan J in Sapula v ResMed Ltd [2007] FCA 438. Each of those decisions held that a jurisdictional requirement had to be satisfied to ground an action under s 659(2)(e) of the Act. This was that an actual complaint must have been filed in a relevant place before the employee could claim to have been dismissed for a reason which included the filing of that complaint or his or her participation in proceedings against the employer involving an alleged violation of laws or regulations, or recourse to competent administrative authorities, as provided in s 659(2)(e).

10 On the evidence before his Honour in the principal proceedings, no complaint had been filed or made to any third party at the time of Mr Dowling’s dismissal by Fairfax. In those circumstances, there is no reason to doubt the correctness of the application of the decisions of this Court, at first instance and on appeal, as to the construction of the legislation. Accordingly, I am satisfied that there is no sufficient reason to doubt the correctness of his Honour’s decision to dismiss this element of the proceedings pursuant to the power under s 17A of the Federal Magistrates Court Act.

11 Mr Dowling had made similar allegations in both proceedings concerning the existence of a reason for his dismissal prohibited by ss 792(1) and 793(1). In the principal proceedings and the directors and officers proceedings, his Honour considered allegations that Mr Dowling had causes of action based on allegations under ss 793(1)(j), (k), and (l) of the Workplace Relations Act. Mr Dowling had foreshadowed an amendment, which he had not then pleaded, to raise claims in the principal proceedings under subsections 793(1)(j) and (k). He had pleaded claims based on ss 793(1)(k) and (l) in the directors and officers proceedings.

12 His Honour determined that he could not conclude that Mr Dowling’s foreshadowed claim (that Fairfax had breached s 792(1) of the Workplace Relations Act because he had threatened to refer to WorkCover the issues he wanted resolved) had no reasonable prospects of success. Accordingly, he allowed the principal proceedings to remain on foot in order for that issue to be further explored. The circumstances in which that claim arose are set out in the trial judge’s reasons in the principal proceedings (Dowling v Fairfax [2007] FMCA 2104 at [47]). Mr Dowling had said in his affidavit filed in those proceedings that he had threatened an officer of Fairfax that he would refer to WorkCover the issues he wanted resolved, and had expressed a view that he could obtain a court order stopping Fairfax from sacking him.

Thus, the gravamen of Mr Dowling’s complaints before his Honour, both as against Fairfax and, as will appear, the directors and officers, is that he was dismissed shortly after the conversation concerning WorkCover and the potential to obtain a court order because of what he claimed he had said there.

14 The definition of ‘prohibited reason’, so far as is relevant, is found in s 793(1) in pars (j), (k), and (l). They provide as follows:

15 It is important to appreciate that in the principal proceedings before his Honour, Mr Dowling relied only on a proposal to amend in order to raise the prohibited reasons under pars (j) and (k), but in the directors and officers proceedings, he had relied, in addition, on par (l). His Honour dismissed, under s 17A of the Federal Magistrates Act, so much of the directors and officers proceedings that relied on s 793(1)(k) and (l), but allowed them to stand in respect of the prohibited reason in s 793(1)(j) for the reasons that he had given in the principal proceedings concerning the foreshadowed amendment, together with some additional reasons.

16 Both the principal and the directors and officers proceedings were commenced under Div 9 of Pt 16 of the Act. Where an application has been made under section 807(1) relating to a person’s conduct, and it is alleged that the conduct was being carried out for a particular reason or with a particular intent, which, if proved would constitute a contravention of Pt 16, s 809(1) creates a rebuttable presumption that the conduct was being carried out for that reason or with that intent.

17 One reasonably arguable construction of the legislation is that simply because Mr Dowling made an allegation that he had been dismissed for each of the prohibited reasons in s 793(1) (j), (k) or (l), the persons against whom the allegation was made would be required by s 809(1) to prove to the contrary in order for the Court to be able to find in their favour. It seems to me that if this construction is correct then Mr Dowling’s claim was not able to be dismissed summarily on the material before his Honour.

18 That construction does not necessarily require the person or persons (alleged to have had the proscribed reason or intent) to give evidence themselves. The question is whether the person proves the contrary, as the section says. Ms Eastman, who appears for each of the respondents, has informed me that there is no decision, apart from that of his Honour in the Court below, as to the proper construction of these provisions and how they operate. Nor, in the brief time available to me, have I been able to find any such decision. This appears to raise important questions of employment law. One argument which was raised by the respondents before his Honour but has not been dealt with before me is whether the provisions of Pt 16 are available to be relied upon by Mr Dowling at all. Again, since his Honour did not accede to the application to dismiss either proceedings on that basis, I am satisfied that that issue is arguable and could be made the subject of a notice of contention in respect of the ground on which I propose to grant leave to appeal.

19 The critical reasoning which his Honour applied is that, even though the presumption in s 809(1) operates, there was nothing in the material placed before him which suggested a real issue to be tried in respect of s 793(1)(k): Dowling v Fairfax [2007] FMCA 2104 at [66]- [69]. He said that Mr Dowling had not put evidence on to suggest that he had actually commenced court proceedings. His Honour accepted Fairfax’s submissions that there was no evidence that Mr Dowling had participated in or proposed to participate in a proceeding under an industrial law at any time prior to the termination of his employment. In my opinion, it is reasonably arguable that this was an error of law in the construction of s 793(1)(k) having regard to the operation of ss 792(1) and 809(1). That is because it may be arguable that the making of the allegation that Mr Dowling was dismissed for a prohibited reason created a presumption that that reason was operative unless the relevant respondent proved otherwise.

20 If an employer dismissed an employee because the employee suggested, wrongly, that proceedings had been commenced by him or her when they had not, that conduct arguably may be a contravention of the Act that gives rise to a cause of action under s 807. This is because the focus of ss 792(1) and 793(1) is on whether the employer’s reason for dismissing the employee is a ‘prohibited reason’. In my opinion, there is sufficient doubt as to whether his Honour was correct to determine that it was necessary for a proceeding to exist prior to the termination to enliven a contravention of s 793(1)(k) or (l), to warrant a grant of leave to appeal.

21 In the directors and officers proceedings, his Honour applied to s 793(1)(l) by extension his reasoning in the principal proceedings in respect of s 793(1)(j) and (k): Dowling v Kirk [2007] FMCA 2106 at [37]. The nub of his Honour’s reasoning was that there was no evidence that, prior to his dismissal, Mr Dowling had participated in or proposed to participate in proceedings under an industrial law. Again, in my opinion, this question seems to raise an arguable issue.

22 The respondents have argued that even if I were minded to determine that there was sufficient doubt as to the judgment below in this respect I ought not grant leave to appeal because no substantial injustice would be done. Indeed, they argued that the consequence of a grant of leave would be the inevitable delay attendant not only on the resolution of the appeal proceedings but the impact that they would have upon the way in which the principal proceedings were to proceed.

23 Those are matters which are for Mr Dowling and the respondents to address themselves. The injustice to Mr Dowling of not being able to litigate a case which may give rise to causes of actions, if the argument identified by me were able to be sustained on appeal, is obvious.

24 There was some discussion that I should restrict the grant of leave to proceedings against the four respondents to the directors and officers proceedings referred to by his Honour in the judgment: Dowling v Kirk [2007] FMCA 2106 at [34]. This was based on a suggestion that Fairfax’s Board of Directors would have not been involved in or had knowledge of these allegations and matters or been party to them. The respondents argued that this involvement was so unlikely to be sustained that his Honour should have dismissed the claims in respect of s 793(1) in the directors and officers proceedings summarily. However, no doubt mindful of the effect of s 809, his Honour, declined to limit the continuation of those proceedings to those four persons, and I do not think that I should restrict the grant of leave for that reason.

25 Accordingly, in the directors and officers proceedings, I will grant leave to Mr Dowling to appeal against Order 1.

26 The difficulty with the principal proceedings is that because Mr Dowling had not formally amended his application to raise claims under ss 792, 793 and 807 at the time his Honour heard the matter, no order was made dealing with those claims. Therefore, there being no order against Mr Dowling, there is nothing in those proceedings within the appellate jurisdiction of this court which could attract a grant of leave. Doubtless, observations which the Full Court may make on the construction of the Act will be of relevance in the determination of the application for amendment in the principal proceedings.

27 The third matter in respect of which a grant of leave to appeal is sought are the contempt proceedings. In those proceedings, for the reasons given by his Honour, I am of opinion that there is no basis to consider that the correctness of his decision is attended by any doubt.

28 Those proceedings involved a claim by Mr Dowling that his Honour should have referred conduct of three employees and a solicitor for his principal protagonist, Fairfax, to the Director of Public Prosecutions for the laying of criminal charges. During the course of argument before me, Mr Dowling appeared to concede that he may not have been able to obtain an order that the Federal Magistrates Court refer persons to the Director of Public Prosecutions for the laying of criminal charges.

29 The grounds of the application in the contempt proceedings pleaded that all four respondents had been involved in the drafting of a document shortly after Mr Dowling’s employment had been terminated, but also after he had commenced proceedings in the Industrial Relations Commission of New South Wales concerning his termination. He asserted that the document had been drafted with the intent of perverting the course of justice, that there was an attempt to pervert the course of justice and a conspiracy to pervert the course of justice. He asserted that the persons who drafted it were guilty of perjury. He asserted that one of the respondents, the solicitor, had fraudulently signed a court document impersonating a Fairfax employee. His Honour noted in the case of the solicitor, that there was also an allegation that by signing a notice of appearance in the Australian Industrial Relations Commission, the solicitor committed a fraud.

30 In my view those allegations are unarguable. The contempt proceedings involve no allegations of contempt which the Federal Magistrates Court could have, or should have, dealt with on the facts there disclosed.

31 Mr Dowling also asserted that his Honour ought to have allowed the contempt proceedings to stand because he claimed ‘further or other relief’ in his application. And he asserted that because the Federal Magistrates Court had jurisdiction to punish contempt of that court, it should have done so.

32 The Federal Magistrates Court has no jurisdiction to deal generally with the administration of justice in other tribunals or courts, nor does it have criminal jurisdiction as his Honour pointed out: see also Wentworth v Rogers (unreported, Supreme Court of New South Wales, Court of Appeal, 22 July 1987) per Samuels, Mahoney, Clarke JJA; Grassby v The Queen (1989) 168 CLR 1, especially at pp 16-17 per Dawson J. An allegation of contempt is an allegation of the commission of a criminal act. Such matters are not to be dealt with lightly or imprecisely on the basis of a catch-all claim for ‘further or other relief’. The contempt proceedings, as they were constituted before his Honour, were the plainest abuse of the process of the Court. They raised issues with which the Court had no concern or jurisdiction.

33 In my opinion, there should not be a grant of leave to appeal in respect of the contempt proceedings.

34 I propose to order that proceedings NSD 26 of 2008 and NSD 40 of 2008 be dismissed. In proceedings NSD 39 of 2008, I will grant leave to the applicant to appeal against Order 1 made by the Federal Magistrates Court on 20 December 2007.

	Applicant appeared in person

Counsel for the Respondents:	K Eastman

Solicitor for the Respondents:	Freehills

Date of Hearing:	18 January 2008

Date of Judgment:	18 January 2008

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 26 OF 2008

JUDGE:	RARES J
DATE OF ORDER:	18 JANUARY 2008
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 39 OF 2008

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 40 OF 2008

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	39 OF 2008

JUDGE:	RARES J
DATE:	18 JANUARY 2008
PLACE:	SYDNEY

Federal Court of Australia

Dowling v Kirk [2008] FCA 165 (18 January 2008)