Dowling v John Fairfax Publications Pty Limited (No.6) and Dowling v Kirk and 16 Ors (No.4)
[2008] FMCA 1505
•31 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DOWLING v JOHN FAIRFAX PUBLICATIONS PTY LTD (No.6) & DOWLING v KIRK & 16 ORS (No.4) | [2008] FMCA 1505 |
| INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Transfer to Federal Court – transfer in the interests of the administration of justice. |
| Federal Magistrates Act 1999, s.39 Federal Magistrates Court Rules 2001, r.8.02 |
| Dowling v John Fairfax Publications Pty Ltd [2007] FMCA 2104 |
| Applicant: | SHANE DOWLING |
| Respondent: | JOHN FAIRFAX PUBLICATIONS PTY LIMITED |
| File Number: | SYG 2671 of 2007 |
| Applicant: | SHANE DOWLING |
| First Respondent: | DAVID KIRK |
| Second Respondent: | RON WALKER |
| Third Respondent: | JULIA MARION KING |
| Fourth Respondent: | ROGER CORBETT |
| Fifth Respondent: | MARK BURROWS |
| Sixth Respondent: | DAVID EVANS |
| Seventh Respondent: | PETER YOUNG |
| Eighth Respondent: | JOHN FAIRFAX |
| Ninth Respondent: | NICHOLAS FAIRFAX |
| Tenth Respondent: | GAIL HAMBLY |
| Eleventh Respondent: | LINDA PRICE |
| Twelfth Respondent: | CAROLYN BRADLEY |
| Thirteenth Respondent: | KELLY DALY |
| Fourteenth Respondent: | NATALIE CARRINGTON |
| Fifteenth Respondent: | YEMEE FERNANDES |
| Sixteenth Respondent: | KEVIN STOKES |
| Seventeenth Respondent: | ROBERT WHITEHEAD |
| File Number: | SYG 2704 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 31 October 2008 |
| Date of Last Submission: | 31 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms K. Eastman |
| Solicitors for the Respondent: | Freehills |
ORDERS
SYG 2671/2007
Pursuant to s.39 of the Federal Magistrates Court Act 1999, the matter be transferred to the Federal Court of Australia.
SYG 2704/2007
Pursuant to s.39 of the Federal Magistrates Court Act 1999, the matter be transferred to the Federal Court of Australia.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2671 of 2007
| SHANE DOWLING |
Applicant
And
| JOHN FAIRFAX PUBLICATIONS PTY LIMITED (NO. 6) |
Respondent
SYG 2704 of 2007
| 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
REASONS FOR JUDGMENT
Introduction
Since the early days of these proceedings, the applicant, Mr Dowling, has expressed the view that I should not hear these matters. His reasons for this view and the various applications which he has made as a consequence of it have altered over time.
Whatever the original and subsequent reasons for his opinion, it is apparent to me that Mr Dowling is firmly and irrevocably of the opinion that he will get no justice from me. He is wrong but nevertheless fixed in this view.
Until very recently, I was of the opinion that it would be an abdication of my duty as a judicial officer to accede to baseless requests that I not hear these matters. However, the stage has now been reached, it seems to me, that Mr Dowling’s fixed view is affecting his perception of the operation of this Court to such an extent that something must be done to address his concerns, baseless though they be.
I am particularly concerned that Mr Dowling’s personal animus to me and distrust of the Court will distort the running of any future hearing, including directions hearings, whether before me or another Federal Magistrate, such that the real matters in issue will be obscured, that he will be distracted by his presence in this Court and that he will present his case less effectively than would be the case in another forum.
It was to be hoped, once the two proceedings which are currently before the Court had been remitted to this Court for determination according to law, that Mr Dowling would have been able to take an objective view of matters. Regrettably, this is not the case. My conclusion has been reached on the basis of recent email comments which are only the most recent additions to an accumulation of comments which Mr Dowling has made in email communications to the Court, including:
a)an email to the Principal Registrar of the Court on 14 November 2007 where amongst other things it was said that the Principal Registrar was colluding with me and acting as nothing more than my mouthpiece. In that email Mr Dowling continued, making reference to non-existent private communications between the respondents’ solicitors and myself, saying:
From this they are obviously saying that either you or someone in your office has acted corruptly in taking the letter to Federal Magistrate Cameron …
and going on to ask:
Why has someone in the registrar’s office been acting as a courier pigeon for Freehills/Fairfax Media and delivering correspondence from Freehills/Fairfax Media to Federal Magistrate Cameron and Federal Magistrate Raphael?
b)in an email to the Principal Registrar of the Court on 15 November 2007, he suggested that the Principal Registrar’s conduct made her look like an extremely guilty person with something to hide, said that she was in breach of her duties and suggested that she should resign;
c)in an email to the Principal Registrar of the Court dated 16 November 2007, Mr Dowling made further accusations against the Principal Registrar suggesting that she was acting on directions of the Chief Federal Magistrate, going onto say:
I can also only surmise that Federal Magistrate Cameron is acting as corruptly as he is because he knows he has protection from Chief Federal [Magistrate] John Pascoe and above.
d)in his email to the Court on 23 January 2008, Mr Dowling made further accusations about the Chief Federal Magistrate suggesting that he was:
… actually supporting FM Cameron in the biased conduct.
e)in his email of 20 July 2008 Mr Dowling described me as “Freehills’ personal bitch” and one of my associates as a “Freehills PA”.
Other emails followed, most recently on 20 October 2008. The constant theme, building on the foundation set in the early emails, was that not only was I corrupt and taking a bribe from Freehills, presumably on behalf of the respondents, but that the Chief Federal Magistrate, the Principal Registrar of the Court and my associates were somehow complicit or otherwise implicated. Mr Dowling’s reference to Raphael FM who has never heard any aspect of these matters might also be noted. Mr Dowling has also cast aspersions on the integrity of Justices Rares and Jagot seemingly because they concluded there was no basis to Mr Dowling’s allegations of bias against me.
I have concluded that Mr Dowling, for whatever reason but presumably those matters discussed in my reasons for judgment in Dowling v John Fairfax Publications Pty Ltd [2007] FMCA 2104, is convinced that no justice will be given to him in this Court. I have considered the accusations made in Mr Dowling’s email correspondence to the Court against the Court’s Principal Registrar and the Chief Federal Magistrate and his passing reference to Raphael FM, and have concluded that the interests of the administration of justice would be best served by transferring this matter to the Federal Court and by cutting the Gordian knot which, unless cut, will prevent the proper consideration and disposition of Mr Dowling’s claims.
In reaching this conclusion, I have had regard to the fact that both matters currently before this Court have been remitted by the Federal Court for determination according to law. Although the formal effect of such an order is that it must be this Court and, in particular I, who hears and determines these matters, the actual effect of such an order is no more than that this Court must continue to deal with the matters as if the orders which have been set aside had not been made.
Indeed, one of the laws which I must observe is the Federal Magistrates Act 1999 (“Act”). Section 39(3)(d) of that Act provides that the Court may transfer a matter to the Federal Court if it is in the interests of the administration of justice to do so. Other matters must also be considered and I will avert to them shortly but for present purposes it is sufficient that I refer to that paragraph.
In such circumstances, I see no inhibition on the Court in taking a course which will in my view best assist justice to be done between the parties.
Before transferring the matter to the Federal Court it is necessary that I have regard to the matters set out in s.39(3) of the Act and r.8.02 of the Federal Magistrates Court Rules 2001. Having regard to those matters, in my view the only ones of relevance to these proceedings are s.39(3)(d) which provides:
(3)In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Magistrates Court must have regard to:
…
(d) the interests of the administration of justice.
and r.8.02(4)(b) which provides:
(4)In addition to the factors required to be considered by the Court under subsections 39(3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:
(a) …
(b)whether, if the proceedings is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred …
I might also note Mr Dowling’s consent to the proposal that the proceedings be transferred and, although without instructions, Ms Eastman who appears today for the respondents indicated that the respondents’ original position before Gyles J before the matter was transferred to this Court was that the proceedings should have remained in the Federal Court.
For the reasons already given, I believe that it is in the interests of the administration of justice that the proceedings be transferred. I am also of the view that it is likely that the disposition of the proceedings will be more conveniently achieved in the Federal Court than in this Court because of the jaundiced view Mr Dowling has taken of the Federal Magistrates Court and because of the way this view manifests itself, including in argumentative exchanges in Court which serve only to waste time and distract attention from the matters which must be dealt with.
These proceedings must be removed from this Court into a court which does not suffer from the chronic lack of confidence which Mr Dowling displays in relation to this Court. Indeed it may only be by transferring the proceedings out of this Court to a superior court that Mr Dowling may come to understand that neither I nor any other members of the Court or its administration are anything but completely disinterested in the outcome of the proceedings.
I appreciate that a transfer order such as this is exceptional and if Mr Dowling's complaints had not been so continuously asserted, wide ranging over members and officers of the Court and distracting to the consideration of the matters in issue an order such as this would not be countenanced. However, the circumstances are in my experience, including experience in practice, unique and require an unusual approach in order to address them and to ensure that the applications proceed undistracted by aggressively advocated irrelevances.
For these reasons I have concluded that the matters should be transferred to the Federal Court pursuant to s.39 of the Act and there will be orders accordingly.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 7 November 2008
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