Dowling v John Fairfax Publications Pty Ltd

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

DOWLING v JOHN FAIRFAX PUBLICATIONS PTY LTD [2007] FMCA 2104

INDUSTRIAL LAW – Unlawful termination – complaint to employer only does not satisfy criteria of s.659(2)(e) – reverse onus of proof not enlivened – s.793(1)(j) may not be limited to interaction with industrial associations – discussion of objects clauses – discussion of whether WorkCover is a “person or body having the capacity under an industrial law” to seek compliance with that law – discussion of whether provisions of the Occupational Health and Safety Act 2000 (NSW) may be industrial laws – summary dismissal application not frivolous and vexatious only because dismissal not sought below in the Australian Industrial Relations Commission.

PRACTICE AND PROCEDURE – No reasonable prospects of success – summary dismissal application – appropriate test – discussion of “frivolous and vexatious” – application in a case not out of time if proceedings still on foot – grant of interim relief to applicant inappropriate while application to summarily dismiss proceedings pending.

PRACTICE AND PROCEDURE – Disqualification application – refusal – allegations of bias not made out.

Workplace Relations Act 1996 (Cth), ss.4, 16, 643, 645, 646, 650, 659, 664, 665, 728, 778, 779, 792, 793, 807, 809
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss.3, 22
Occupational Health and Safety Act 2000 (NSW), ss.91, 92, 93, 94
Industrial Relations Act 1996 (NSW)
Federal Magistrates Act 1999 (Cth), s.17A
Federal Magistrates Court Rules 2001 (Cth), r.13.10
Federal Court of Australia Act 1976 (Cth), s.31A
Migration Litigation Reform Act 2005 (Cth)
Boston Commercial Services Pty Limited v GE Capital Finance Australasia Pty Limited  [2006] FCA 1352
Duncan v Lipscombe Child Care Services Inc. [2006] FCA 458
White Industries Aust Limited v Commissioner of Taxation [2007] FCA 511
Balding v Ten Talents Pty Limited [2007] FMCA 145
Vivid Entertainment LLC v Digital Sinema Australia Pty Limited [2007] FMCA 157
General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Hocking v Bell (1947) 75 CLR 125
Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited [2006] FCA 1416
Rana v University of South Australia [2004] FCA 559
Rogers v Asset Loan Co Pty Limited & Ors [2007] FCA 195
Fortron Automotive Treatments Pty Limited v Jones (No 2) [2006] FCA 1401
He v Lewin (2004) 137 FCR 266
Zhang v Royal Australian Chemical Institute Inc. (2005) 144 FCR 347
Sapula v ResMed Limited [2007] FCA 438
Claveria v Pilkington Australia Ltd [2007] FCA 1692
Davids Distribution Pty Limited v National Union of Workers (1999) 91 FCR 463
Bahonko v Moorfields Community [2005] FCA 46
Jennings v Salvation Army (2003) 128 IR 366
CFMEU (NSW) v Brolrik Pty Limited [2007] NSWIRComm 205
Independent Education Union v Geelong Grammar School [2000] FCA 557
Dowling v Kirk & 16 Ors [2007] FMCA 2106
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
McGlade v Human Rights and Equal Opportunity Commission (2000) 180 ALR…
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Details
Case
[2007] FMCA 2104
Decision Date

CaseChat Overview and Summary

Dowling brought an action against John Fairfax Publications Pty Ltd claiming unlawful termination of employment, and alleging that the respondent had contravened sections 659(2)(e) and 793(1)(j) of the Workplace Relations Act 1996 (Cth). Dowling submitted that he had not only complained to his employer but also to WorkCover, which the court interpreted as satisfying the criteria of section 659(2)(e) of the Act. The court held that the reverse onus of proof was not activated and that section 793(1)(j) was not limited to interactions with industrial associations. The court also considered the objects clauses of the Act and whether WorkCover was a person or body having the capacity under an industrial law to seek compliance with that law. It also considered whether provisions of the Occupational Health and Safety Act 2000 (NSW) could be industrial laws. The court dismissed the application to summarily dismiss the proceedings on the basis that it was not frivolous and vexatious only because Dowling had not sought dismissal below in the Australian Industrial Relations Commission.

The court considered the test for determining if there were reasonable prospects of success in a summary dismissal application. It found that proceedings were not out of time if they were still on foot, and that granting interim relief to Dowling while the application to summarily dismiss was pending was inappropriate. The court also considered a disqualification application brought by Dowling, which alleged bias on the part of the trial judge. The court dismissed the application as the allegations of bias were not made out.

The court dismissed the proceedings to the extent that they alleged that the respondent breached section 659 of the Workplace Relations Act 1996. It stood over the applicant’s notice of motion dated 7 August 2007 and dismissed the applicant’s application in a case dated 24 September 2007 as to proposed order 1, but stood it over as to proposed order 2. The applicant’s application in a case dated 30 October 2007 was dismissed.

Orders

Orders of the court

1.

Pursuant to r.13.10(a) of the Rules of Court, the proceedings be dismissed to the extent that they allege that the respondent breached s.659 of the Workplace Relations Act 1996.

2.

The applicant’s notice of motion dated 7 August 2007 be stood over to a date to be fixed.

3.

The applicant’s application in a case dated 24 September 2007 be:

(a) dismissed as to proposed order 1; and

(b) be stood over to a date to be fixed as to proposed order 2.

4.

The applicant’s application in a case dated 30 October 2007 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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