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) |
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- Case
- [2007] FMCA 2104
- Decision Date
CaseChat Overview and Summary
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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