Dowling v John Fairfax Publications Pty Ltd
[2007] FMCA 2104
•20 December 2007
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 507 Pridmore v Magenta Nominees Pty Limited (1999) 161 ALR 458 Walton v Gardiner (1993) 112 ALR 289 Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 Attorney-General v Wentworth (1988) 14 NSWLR 481 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Johnson v Johnson (2000) 201 CLR 488 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 |
| Applicant: | SHANE DOWLING |
| Respondent: | JOHN FAIRFAX PUBLICATIONS PTY LIMITED |
| File Number: | SYG 2671 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 25 October 2007 |
| Date of Last Submission: | 7 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2007 |
REPRESENTATION
The Applicant appeared in person.
| Counsel for the Respondent: | Ms. K. Eastman |
| Solicitors for the Respondent: | Freehills |
ORDERS
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.
The applicant’s notice of motion dated 7 August 2007 be stood over to a date to be fixed.
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.
The applicant’s application in a case dated 30 October 2007 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2671 of 2007
| SHANE DOWLING |
Applicant
And
| JOHN FAIRFAX PUBLICATIONS PTY LIMITED |
Respondent
REASONS FOR JUDGMENT
Introduction
Shane Dowling, the applicant in these proceedings, has brought three proceedings arising out of the termination of his employment with John Fairfax Publications Pty Limited (“Fairfax”). In these proceedings (“principal proceedings”) Mr Dowling seeks reinstatement with Fairfax based on his allegation that he was unlawfully dismissed in breach of s.659(2)(e) of the Workplace Relations Act 1996 (“Act”). In these proceedings Mr Dowling has also filed a Notice of Motion dated 24 September 2007 seeking orders that his application be amended to plead breach by Fairfax of s.792 of the Act arising out of conduct described in s.793(1)(j) and (k). Mr Dowling originally sought also to add seventeen additional parties, apparently directors or officers of Fairfax, as respondents in these proceedings but no longer seeks to do so.
In matter SYG 2704 of 2007 (“directors and officers proceedings”) Mr Dowling has commenced proceedings against the individuals he had previously sought to join in these, the principal proceedings. In the directors and officers proceedings Mr Dowling seeks financial compensation and a published apology on the basis of alleged accessorial liability under s.728 of the Act. This is related to Fairfax’s alleged breach of s.792 of the Act and is said to arise out of conduct described in s.793(1)(j), (k) and (l).
In matter SYG 2703 of 2007 (“contempt proceedings”) Mr Dowling seeks orders in respect of three employees of Fairfax and one of its solicitors to the effect that certain aspects of their conduct associated with, or subsequent to, the termination of his employment with Fairfax be referred to the Director of Public Prosecutions for the laying of criminal charges.
The respondents have sought dismissal of each of the proceedings pursuant to s.17A of the Federal Magistrates Act 1999 and r.13.10 of the Rules of Court on the basis that Mr Dowling has no reasonable prospects of success in any of them.
On 28 September 2007 it was ordered that each of the matters be listed on 25 October 2007 for the hearing of the respondents’ applications.
After I reserved judgment on Fairfax’s applications, Mr Dowling filed in these proceedings only, an application in a case dated 30 October 2007 which was argued on 7 November 2007. In that application in a case, Mr Dowling sought orders for financial compensation on an interim basis and also invited me to disqualify myself.
At the outset, and for the reasons I give below, I should record that Mr Dowling’s concerns regarding bias on my part are without foundation and I reject them. I therefore do not disqualify myself from the further hearing and determination of these proceedings.
For the reasons which follow:
a)the proceedings will be dismissed to the extent that Mr Dowling alleges breach of s.659 of the Act;
b)the matter will be listed for consideration of Mr Dowling’s notice of motion to amend his claim to allege breach of s.792 of the Act;
c)
proposed order 1 of Mr Dowling’s application in a case dated
24 September 2007 will be dismissed and proposed order 2 will be stood over for later argument; and
d)Mr Dowling’s application in a case dated 30 October 2007 will be dismissed.
Background
In these proceedings Mr Dowling has filed affidavits sworn on 29 June 2007, 16 July 2007, 7 August 2007, 24 September 2007 and 30 October 2007. According to those affidavits and other documents filed in these proceedings, the relevant chronology would appear to be this:
a)on 9 January 2006 Mr Dowling started work in the Fairfax SME team as an outbound telephone sales consultant which required him to make numerous telephone calls on a daily basis to sell advertising to small and medium sized companies;
b)in November 2006 he was promoted to Account Manager in the Fairfax Direct division to sell to corporate customers sponsorship of booklets or guides which were written by journalists on various topics;
c)Mr Dowling says that account managers in the Fairfax Integrated Solutions (“FIS”) team with responsibility for Fairfax’s top eighteen accounts in Sydney were blocking him and his team from access to the formers’ accounts. Mr Dowling made complaints to Fairfax management which, he says, was well aware of the problem;
d)in January 2007 Mr Dowling’s team was permitted by management to make appointments with FIS team clients and he was successful in arranging a number of appointments. After five days the FIS team prevented further direct contact with their clients;
e)it was decided that Mr Dowling’s team would return to a previous arrangement whereby the FIS team would make appointments with their clients for Mr Dowling’s team but in general, says Mr Dowling, they failed to do so;
f)on 1 March 2007 an email was sent to two members of the FIS team from an account manager at an advertising agency which acted for one of the FIS team’s clients. Mr Dowling says that the email was full of lies and was highly defamatory of him. In the email, the advertising agency account manager was threatening not to use certain Fairfax products marketed by the Fairfax SME team as he had become annoyed because Mr Dowling had contacted his client directly after having been asked not to do so;
g)that afternoon the applicant’s manager, Ms Fernandes, who is one of the respondents in the directors and officers proceedings, met Mr Dowling and gave him a copy of the complaining email;
h)on 2 March 2007 Mr Dowling approached James Hooke (described by Mr Dowling as “Director NSW”) complaining about the email and saying that he would make a complaint to “HR”;
i)Mr Dowling says that Ms Fernandes subsequently spoke to him threatening that if he made a complaint to “HR” he would be given a warning for disobeying a directive from management because he had directly contacted the advertising agency account director’s client;
j)apparently later that day Kevin Stokes (described by Mr Dowling as “General Manager, Enterprise”) called Mr Dowling into his office with Ms Fernandes and “alluded to the fact” that if Mr Dowling made a complaint to “HR” in relation to the email then Mr Dowling would be in trouble for twice breaching a management directive by having contacted two FIS team clients;
k)on Monday 5 March 2007 Mr Dowling made a complaint to Kelly Daly (described by Mr Dowling as “HR Director – NSW”);
l)on Monday 12 March 2007 Ms Daly told Mr Dowling that she had done nothing about his complaint as she had received an email from Mr Stokes saying that the problem had been resolved and that there was no need to investigate. Mr Dowling sent Ms Daly an email that afternoon;
m)on 13 March 2007 Mr Dowling sent Ms Daly a further email which he copied to Mr Hooke and David Kirk (whom Mr Dowling described as “CEO”);
n)on 14 March 2007 Mr Dowling and Ms Daly met and Mr Dowling made a formal complaint which included a complaint about bullying from members of the FIS team;
o)on 4 April 2007 Mr Dowling and Ms Daly met. Mr Dowling says he sought feedback on his complaint but she “refused to give me a written response to my complaint” and said that there was no bullying. Ms Daly told Mr Dowling that she would recommend to his manager that disciplinary action be taken against him for disobeying a management directive and disobeying a directive from the advertising account manager;
p)Mr Dowling says that the following week Ms Fernandes and Mr Stokes “sidelined me and hijacked a sale I was working on that was about to close. I was no longer allowed to contact the customer”;
q)on 16 April 2007 Mr Dowling emailed a complaint to Mr Kirk complaining of bullying, intimidation and bastardisation by Fairfax senior management;
r)on Monday 7 May 2007 Mr Dowling, Natalie Carrington (described by Mr Dowling as “HR Manager who reports to Kelly Daly”) and Ms Fernandes met;
s)on 8 May 2007 Mr Dowling was given a warning letter;
t)on 9 May 2007 Mr Dowling, Linda Price (described by Mr Dowling as “Group HR Director”) and Carolyn Bradley (described by Mr Dowling as “HR Director – Corporate Services”) met in order that Mr Dowling be given feedback on his complaint to Mr Kirk. Ms Price said that Mr Dowling’s complaint was baseless. Mr Dowling asked Ms Price for a written response to his complaint to Mr Kirk but she said she had not completed the report for Mr Kirk. She agreed to provide Mr Dowling with a copy once it was finished;
u)in an immediately subsequent meeting with Robert Whitehead (described by Mr Dowling as the “Director of Marketing” and general manager of Mr Dowling’s division) and Ms Carrington, Mr Dowling’s employment was terminated; and
v)on 8 June 2007 Mr Dowling received a copy of Ms Price’s report to Mr Kirk.
On 18 June 2007 Commissioner Raffaelli of the Australian Industrial Relations Commission (“AIRC”) issued a certificate under s.650 of the Act stating that the Commission was satisfied that conciliation between Mr Dowling and Fairfax had been unsuccessful in respect of relief which had been sought on the basis that the termination was harsh, unjust or unreasonable (s.643(1)(a)) and on the ground of an alleged contravention of s.659 of the Act.
On 29 June 2007 Mr Dowling filed an application in the Federal Court seeking relief based on breaches of s.659(2)(e) of the Act.
On 20 August 2007, after hearing some argument on the parties’ respective motions in these proceedings (to amend and add parties and to dismiss summarily), Gyles J transferred the matter to this Court.
Mr Dowling commenced the directors and officers proceedings and the contempt proceedings on 3 September 2007.
No reasonable prospects of success
As has been noted, Fairfax’s application is brought pursuant to s.17A of the Federal Magistrates Act 1999 and r.13.10 of the Rules of Court. Relevantly, s.17A provides:
(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
Rule 13.10 of the Rules of Court provides:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Section 17A was inserted into the Court’s statute by the Migration Litigation Reform Act 2005 and commenced on 1 December 2005. It was designed to have general application and to strengthen the power of the Court to deal with unmeritorious proceedings by broadening the grounds on which the Court can summarily dispose of them: Explanatory Memorandum to Migration Litigation Reform Bill 2005. The fact that the purpose of the section is to make obtaining summary dismissal easier than previously has been recognised: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [27]; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458; White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 at [54]; Balding v Ten Talents Pty Limited [2007] FMCA 145; Vivid Entertainment LLC v Digital Sinema Australia Pty Limited [2007] FMCA 157.
Previously an application for summary dismissal would be brought on the basis that no reasonable cause of action was disclosed. In respect of such an allegation, in General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 Barwick CJ examined the authorities and said at 129 that they uniformly adhered to the view that a plaintiff ought not to be denied access to the appropriate court unless his or her lack of a cause of action is clearly demonstrated. The Chief Justice referred to what Dixon J (as he then was) had said in Dey v Victorian Railways Commissioners (1949) 78 CLR 62:
A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process. (at 91)
It is apparent from the authorities considered by Barwick CJ in the General Steel case that the focus of consideration for summary dismissal prior to the introduction of s.17A was whether there was a real question to be determined not whether the question to be determined had reasonable prospects of success.
In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd Rares J considered s.31A of the Federal Court of Australia Act 1976 which is equivalent to s.17A of the Federal Magistrates Act 1999. After considering the authorities his Honour concluded that where there is a real issue of fact to be decided, it was appropriate that the matter went to trial. His Honour described the situation of there being a real issue of fact as being where the evidence is not all one way so that only one conclusion can be said to be reasonable, as considered in Hocking v Bell (1947) 75 CLR 125 at 130 – 131. His Honour also suggested that the matter ought to go to trial where there is a real issue of law of a similar kind. In his Honour’s view:
… in assessing what reasonable prospects of success are for the purposes of s 31A, the Court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking v Bell (1947) 75 CLR 125, contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s 31A. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorize a summary termination of the proceedings which s 31A envisages. … [at 45]
Those principles were summarised by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited [2006] FCA 1416 at [30] in the following terms:
• In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal.
• There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing.
• Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.
• Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened.
His Honour also noted that it would be wrong to determine an application to dismiss proceedings on a narrow approach to the pleadings where the evidence was incomplete and perhaps ambivalent and which might, at a final hearing, and with amended pleadings, produce a verdict for the applicant.
In the context of this Court, what Jacobson J said in Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited should be considered in the light of Lander J’s comments in Rana v University of South Australia [2004] FCA 559, notwithstanding that Lander J was speaking prior to the introduction of s.17A:
In my view, because the FMC Rules do not require pleadings; the parties are not obliged to tender all their evidence when the application and response is filed; there are few, if any, interlocutory processes available; and the Federal Magistrates Court is a low cost court, the Federal Magistrates Court should be very cautious about summarily dismissing an applicant’s proceeding. That course should only be adopted when it is clear, beyond any doubt, that the applicant has not, and cannot, articulate in writing a reasonable cause of action. As I have already said, the philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process. Litigants will often be self-represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated. In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant’s claim. (at [75])
This is not a case where deficiencies in pleading are asserted which would raise issues such as was seen in Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195 and in Fortron Automotive Treatments Pty Ltd v Jones (No. 2) [2006] FCA 1401. The question here, as was discussed by French J in the Fortron case, is whether the party against whom the application is made has any “reasonable prospect” of successfully prosecuting “the proceeding” or the “part of the proceeding” in issue. In White Industries Aust Ltd v Commissioner of Taxation at [50] Lindgren J said that s.31A of the Federal Court of Australia Act is concerned with the bringing and defending of proceedings, not just with pleadings; with substance not just with form.
In Rogers v Asset Loan Co Pty Ltd & Ors, Greenwood J was satisfied that there was no prospect of the applicant succeeding in the proceedings were they allowed to go to trial in the ordinary way and thus there was a high degree of certainty as to the ultimate outcome. That degree of certainty was informed not just by deficiencies in the pleading but by reason of the weight to be given to factors discussed elsewhere in the reasons for judgment. His Honour described his conclusions in the following terms:
Perhaps the test in determining a reasonable prospect of successful prosecution of a proceeding is whether there is a demonstrated ‘real (as opposed to fanciful) issue of fact to be decided’ (Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352, per Rares J [31] – [48]). However, the ‘real issue of fact’ must be framed within a comprehensible cause of action (in respect of which the applicant has standing) so that findings of fact in favour of the applicant give rise to a recognised remedy. (at [64])
In this Court in Vivid Entertainment LLC v Digital Sinema Australia Pty Limited, Driver FM considered the proper scope of s.17A and the circumstances which might enliven its operation. Having considered the authorities, his Honour agreed with and applied the summary of principles set out by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited. His Honour also commented that in considering when an apparently hopeless case can be saved by amendment or further evidence the conduct of the party requiring such indulgence and the circumstances of the proceedings could be considered when determining whether that indulgence would be given. Consequently, Driver FM, with whom I respectfully agree, added another point to Jacobson J’s summary:
• The Court should have regard to the possibility of amendment and additional evidence in considering whether only one conclusion can be said to be reasonable. In that consideration, the conduct of the parties and the other circumstances of the case may be relevant. (at [30])
Fairfax’s application to dismiss the proceedings
Fairfax identified the relevant issues in the following terms:
1. Whether the Applicant’s claim should be dismissed because section 659(2)(e) of the Workplace Relations Act 1996 (Cth) (“Act”) has no application to the facts alleged by the Applicant in relation to the termination of his employment.
2. Whether the Applicant should be granted leave to amend the application to raise the additional ground based on the freedom of association provisions in the Act, namely sections 792 and 793(1)(j) and (1)(k).
3. If leave is granted, should the Applicant be permitted to join 17 individuals to the proceeding.
4. The Applicant’s application to “strike out” the Respondent’s Notice of Motion.
The third issue no longer needs to be considered because at the hearing Mr Dowling abandoned that part of his notice of motion filed on
7 August 2007in the Federal Court which sought to join seventeen additional parties into these proceedings.
Issue 1 – applicability of s.659(2)(e)
The facts relied upon by Mr Dowling are set out above at [9].
Section 659(2)(e) of the Act provides:
Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
…
(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities.
Section 659(2)(e) is in terms identical to those of former s.170CK(2)(e). Discussing the operation of that paragraph, Gray and Mansfield JJ said in He v Lewin (2004) 137 FCR 266 at 280 [44], Whitlam J agreeing at 286 [70]:
Section 170CK(2)(e) is directed to the making of complaints to outside authorities, either by way of instituting proceedings against an employer, or by way of making allegations to officials who are empowered to investigate such allegations. The ground would not be established by the making of complaints directly to the employer alone.
Their Honours’ decision was followed by a differently constituted Full Court in Zhang v Royal Australian Chemical Institute Inc. (2005) 144 FCR 347. There, Lander J (Spender and Kenny JJ agreeing) rejected the appellant’s submission that a complaint to the employer would be caught by the paragraph which is now s.659(2)(e). His Honour pointed to the wording of the paragraph which speaks of “filing” a complaint saying:
An employee who complains to his/her employer does not thereby file a complaint. A complaint can only be filed somewhere and with someone other than the employer and probably only to a Court or Tribunal. That is consistent with reading the “filing of a complaint” with the words that follow “or the participation in proceedings”, namely “against an employer involving alleged violation of laws or regulations”.
The use of the word “against” in s.170CK(2)(e) also means that the complaint must be to someone other than the employer. An employee who complained to the employer about the employer's conduct would not be filing a complaint “against” that employer. (at 351 [25] and [26])
Significantly for these proceedings his Honour also considered the question of the reverse onus of proof as found in the Act at that time in s.170CQ which then provided:
In any proceedings under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:
(a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but
(b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies).
In that case, his Honour held that s.170CQ did not throw the onus onto the employer to establish that the termination was for a reason other than one of the reasons in s.170CK(2)(e) because there was no allegation that a complaint had been made which fell within the terms of s.170CK(2)(e).
I note that in Sapula v ResMed Limited [2007] FCA 438 the applicant employee had not made any complaint to an organisation outside his employment, his complaint having been made to his employer instead. Buchanan J applied Zhang’s case to the operation of s.659 of the Act as it now stands, observing that it seemed to be directly on point and finding that the applicant had no cause of action arising under s.659 of the Act.
Zhang’s case is similarly on point in these proceedings. No evidence has been adduced by Mr Dowling to suggest that any complaint he made was made other than to directors and officers of Fairfax. Although he threatened to take his complaints to WorkCover, he did not actually do so. In the absence of such external complaint, no breach of s.659(2)(e) is disclosed.
Neither do Mr Dowling’s threats to take his complaint to WorkCover support his claim that there has been a breach of the paragraph. When s.659(2)(e) says “the filing of a complaint, or the participation in proceedings” it refers to the complaint having already been filed or the applicant having already participating in proceedings. The paragraph does not refer to prospective action. If it had, it would have used words such as those found in s.793(1)(j) and (k). Consequently the threatened involvement of WorkCover did not enliven s.659(2)(e). As Lander J said in Zhang’s case:
Three circumstances can trigger the operation of the proscribed reason in s 170CK(2)(e). First, the filing of a complaint by the employee. Secondly, participation by the employee in proceedings against an employer. In both those cases they must involve alleged violation of laws or regulations by the employer. The punctuation supports that construction. Thirdly, recourse by the employee to competent administrative authorities will trigger the operation of the section. All three circumstances are directed to complaints to parties other than the employer. (at 351 [23])
There is nothing in the material before the Court which suggests that the criteria of s.659(2)(e), as explained by the authorities, have been satisfied. There being no evidence that a complaint was made by Mr Dowling which fell within s.659(2)(e), there is no occasion for the reverse onus of proof, now found in s.664, to operate. Consequently, I find that this part of these proceedings has no reasonable prospect of success. In reaching this conclusion I note with respect Lander J’s comments in Rana quoted above at [21]. However, in this case, for some time prior to the argument on Fairfax’s motion, Mr Dowling was on notice of the matters which were being raised by that motion and although he has filed other affidavits dealing with other matters, he has not filed affidavit evidence in these proceedings which might have addressed the Fairfax motion. Indeed, the evidence contained in his affidavits is clear and disproves the existence of a claim under s.659(2)(e) presenting a real issue to be tried. It must be accepted that if Mr Dowling had wished to resile in any way from the version of events set out in his affidavits regarding the persons or bodies to whom he actually made complaints, he would have done so at some point between the filing and service of the Fairfax motion and the argument on 25 October 2007. As a result, the only conclusion which can be drawn is that Mr Dowling is content with the accuracy and completeness of his affidavits. In such circumstances this aspect of Mr Dowling’s proceedings will be dismissed as it has no reasonable prospects of success.
Issue 2 – Mr Dowling’s application to amend
As to the second issue, Mr Dowling says that he was dismissed because he made a complaint about bullying, intimidation and bastardisation and had proposed to take the complaint outside Fairfax. Consequently, Mr Dowling has moved the Court for orders that his application be amended to plead breaches by Fairfax of s.792 of the Act arising out of conduct described in s.793(1)(j) and (k) of the Act. This motion was not listed for consideration on 25 October 2007. Nevertheless, the orders it seeks are relevant to Fairfax’s motion as, if Fairfax can demonstrate that the additional claims which Mr Dowling seeks to raise have no reasonable prospect of success, then the proceedings may be dismissed without further consideration of those additional claims. However, if Fairfax cannot demonstrate, at this stage, such weakness in the proposed additional claims, then Mr Dowling should be permitted to move on his motion to amend.
In support of his claim of bullying, intimidation and bastardisation:
a)Mr Dowling points to the second last paragraph of his email to Mr Kirk dated 16 April 2007 where he says:
This is my last attempt to have these issues resolved by the company. If they are not dealt with summarily I will have no choice but to look at other options in dealing with them. (para.2, affidavit sworn 7 August 2007);
b)Mr Dowling says that on 7 May 2007 he walked out of a meeting with Ms Carrington, Ms Fernandes and Luke Osborn saying that he would “be getting WorkCover involved” (para.3, affidavit sworn 7 August 2007); and
c)Mr Dowling also says that the following day, after receiving the warning letter, he spoke to Ms Price and said words to the following effect:
They are threatening to sack me and believe [sic] I can take out a court order stopping them from sacking me. I also told Natalie Carrington yesterday that I would be making a complaint to WorkCover but have decided to at least wait until after the meeting with you and Carolyn Bradley tomorrow. (para.4, affidavit sworn 7 August 2007)
d)Mr Dowling says that he was dismissed in the way he was because “they did not want to give me time to make a complaint outside the company” (para.5, affidavit sworn 7 August 2007).
Section 792(1) of the Act relevantly provides:
An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a) dismiss an employee; …
Section 793(1)(j) and (k) provides:
Conduct referred to in subsection 792(1) or (5) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:
…
(j) has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek:
(i) compliance with that law; or
(ii) the observance of a person's rights under an industrial instrument; or
(k) has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; …
“Industrial law” is defined in s.779 as follows:
this Act, the Registration and Accountability of Organisations Schedule or a law, however designated, of the Commonwealth or of a State or Territory that regulates the relationships between employers and employees or provides for the prevention or settlement of disputes between employers and employees.
“Industrial instrument” is defined in s.779 of the Act as follows:
an award or agreement, however designated, that:
(a) is made under or recognised by an industrial law; and
(b)concerns the relationship between an employer and the employer's employees, or provides for the prevention or settlement of a dispute between an employer and the employer's employees.
“Proceeding” is defined in s.4 of the Act as follows:
“proceeding” includes a proceeding relating to the following:
(a) an award rationalisation process;
(b) an award simplification process.
Industrial association
Fairfax submitted that Mr Dowling’s failure to adduce any evidence that he was a member of, or had an association with, an industrial association was fatal to his claim. The submission was based on the sections relied upon by Mr Dowling being construed in the context of the stated objects of pt.16 of the Act, which is the part in which those sections are found.
The inapplicability of s.793 to Mr Dowling’s situation is said to be demonstrated by the contents of s.778 which sets out the objects of pt.16. That section provides:
In addition to the object set out in section 3, this Part has the following objects:
(a) to ensure that employers, employees and independent contractors are free to become, or not become, members of industrial associations;
(b) to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations;
(c) to provide effective relief to employers, employees and independent contractors who are prevented or inhibited from exercising their rights to freedom of association;
(d) to provide effective remedies to penalise and deter persons who engage in conduct which prevents or inhibits employers, employees or independent contractors from exercising their rights to freedom of association.
Fairfax’s submission relies too heavily on a reading of the Act which limits the sections relied upon by Mr Dowling to the protection of employees from adverse treatment because of their possible interaction, to use a neutral term, with an industrial association. Although the objects of pt.16 are, amongst other things, to protect rights to freedom of association, the protections provided by the sections relied upon by Mr Dowling cannot be limited by the objects set out in s.778, if only because the section itself says so. But in any event, generally an objects clause in a statute can only be an aid to interpretation; it cannot justify an interpretation which contradicts the clear words of the enactment. Further, it was not submitted by either of the parties that the provisions in question amount to an enactment into Australian law of an international Convention which might require a more liberal construction of the statute than the common law would usually allow: Claveria v Pilkington Australia Ltd [2007] FCA 1692 at [95]. Here, the provisions which Mr Dowling relies on are not ostensibly limited to circumstances where a person proposes an inquiry of or a complaint to an industrial association, as that expression is defined in s.779. It is to be noted that they make no reference to industrial bodies or industrial associations, and thus are unlike most of the other paragraphs in s.793(1).
Even so, ss.792 and 793 are relevantly identical to ss.298K and 298L of the Act in its previous form. Both sections were considered by the Full Court of the Federal Court in Davids Distribution Pty Limited v National Union of Workers (1999) 91 FCR 463. The Full Court considered the operation of those sections in the following terms:
Section 298K forbids an employer from dismissing an employee for a prohibited reason or for reasons that include a prohibited reason. The prohibited reasons are contained in s 298L. Each of the reasons relates to the exercise of the right of an employee or independent contractor to join, or refuse to join, an "industrial association" (as defined) and, where the employee becomes a member of an industrial association, to take collective action by or through the industrial association in pursuit of their industrial interests. Section 298L(1)(l) is concerned to ensure that an employee who is dissatisfied with his or her industrial conditions is not discouraged from participation in concerted action engaged in by the industrial association of which the employee is a member and which is seeking better industrial conditions. The objective of s 298K is to ensure the threat of dismissal or discriminatory treatment cannot be used by an employer to destroy or frustrate an employee's right to join an industrial association and to take an active role in that association to promote the industrial interests of both the employee and association. (per Wilcox and Cooper JJ at 500 [106]) (emphasis added)
Because the sections considered in Davids Distribution are relevantly identical to the sections under consideration here, it is, at the very least, arguable that I am bound by their Honours’ interpretation of them with the consequence that Mr Dowling’s application to amend is bound to fail. However, the Act has been amended more than once since that decision and no submissions have been made in the current proceedings concerning whether the prescription of the conduct governed by pt.16, as found in div.2 of pt.16, has any bearing on the proper interpretation of s.793 and whether the Act in its current form affects the relevance of the Davids Distribution case to these proceedings.
Consequently, I cannot conclude at this interlocutory stage of the proceedings that Mr Dowling’s failure to connect his claim to an infringement of a right to freedom of association means that his claim has no reasonable prospects of success.
WorkCover
Based on what he has said in his affidavit sworn 7 August 2007 Mr Dowling:
a)threatened to refer to WorkCover the issues he wanted resolved; and
b)expressed a view that he could obtain a court order stopping Fairfax from sacking him.
Although Mr Dowling referred to the availability of a court-based remedy, his affidavit does not record that he expressed an intention to seek such an order or, in the terms of s.793(1)(k), that he proposed to participate in a proceeding under an industrial law. Consequently, the issue for consideration is whether WorkCover is a “person or body having the capacity under an industrial law” as referred to in s.793(1)(j).
At the outset, it should also be observed that Mr Dowling’s evidence was that he was contemplating making a complaint to WorkCover not making an inquiry of WorkCover.
The first issue to consider is whether WorkCover had any capacity under any industrial law at all. The relevant portion of the definition of “industrial law” found in s.779 is that part which relates to a law of a state “however designated … that regulates the relationships between employers and employees or provides for the prevention or settlement of disputes between employers and employees”.
The WorkCover Authority of New South Wales is established by the Workplace Injury Management and Workers Compensation Act 1998 (“WIMWC Act”). Its general functions are set out in s.22 of that Act and relate to the operation of workers compensation legislation, the workers compensation scheme and, importantly, occupational health and safety legislation. The objects of the workers compensation system supervised by WorkCover are set out in s.3 of the WIMWC Act and deal with workplace safety, rehabilitation and injury compensation. The objects of the Occupational Health and Safety Act 2000 (NSW) are not dissimilar. WorkCover also has functions under other legislation.
Although Fairfax submits that there was no evidence that Mr Dowling ever proposed to make a complaint prior to 8 May, that is exactly what he deposes that he said on 7 May 2007 as he walked out of a meeting with Ms Carrington and Ms Fernandes. The fact that the next day, which was the day before he was dismissed, he said to Ms Price that he would refrain from contacting WorkCover pending the meeting he was to have with her and Ms Bradley the following day does not indicate that he had abandoned the proposal to complain to WorkCover, merely that he might not pursue it depending on the outcome of the meeting on 9 May 2007.
Fairfax correctly submits that there was no evidence that WorkCover had any capacity to be involved, or had any relevant capacity to do anything, in relation to whatever matters Mr Dowling had in his mind –such as seek compliance with an “industrial law”. However, in circumstances where Mr Dowling is unrepresented I am mindful of what Lander J said in Rana v University of South Australia quoted above at [21].
Fairfax submitted that Bahonko v Moorfields Community [2005] FCA 46 demonstrates that complaints to WorkCover are not relevant for the purposes of s.793(1)(j). However, Merkel J’s comments there were obiter and, in any event, appear to follow Jennings v Salvation Army (2003) 128 IR 366, the facts of which are quite distinguishable from this case. The conclusion on this issue in Zhang v Royal Australian Chemical Institute Inc at 352 [34] is similarly distinguishable.
As to whether Mr Dowling’s proposed complaint to WorkCover actually was in respect of the Occupational Health and Safety Act 2000 (NSW) it is unclear as he has not made his claim with sufficient particularity that this can be stated with confidence. Nevertheless, the nature of the foreshadowed claim makes it likely that this was the legislation on which Mr Dowling proposed to rely. Fairfax has submitted that it could not be established that the Occupational Health and Safety Act 2000 (NSW) is an “industrial law” as that term is defined by the Act as, if it were, it would exclude a range of claims being made under that Act in the Industrial Relations Commission of NSW (“NSW Commission”) which, presumably, would suggest that such an interpretation was not intended by the legislature.
In that regard, Fairfax has referred to CFMEU (NSW) v Brolrik Pty Limited [2007] NSWIRComm 205 where the issue was whether certain occupational health and safety provisions in the Industrial Relations Act 1996 (NSW) fell within the s.16(3)(c) exceptions to the exclusive operation of the Act. Section 16(3)(c) excepts from the exclusive operation of the Act legislated in s.16(1) those state and territory laws which deal with occupational health and safety. In the Brolrik case the NSW Commission held that the occupational health and safety provisions in the Industrial Relations Act1996 (NSW) did fall within the exception.
Fairfax has referred to the comments of the NSW Commission in the Brolrik case where it said at [78]:
If the provisions within the OH&S Act ought to be properly characterised as occupational health and safety laws, we see no reason to detract from this characterisation simply because the relevant, related provisions [in the Industrial Relations Act] are located within an industrial law
and submitted that this passage demonstrates that the Occupational Health and Safety Act 2000 (NSW) is not an industrial law, whereas the Industrial Relations Act 1996 (NSW) is. However, the ratio of the NSW Commission’s decision was that individual provisions of a statute had to be considered individually to determine whether they should be considered to be occupational health and safety laws for the purposes of s.16(3)(c). The nature of the statute in which the provision was found was not determinative, as the quoted passage reveals. Moreover, the Commission did not conclude that an occupational health and safety provision was not an industrial law; it simply concluded that it fell within the scope of s.16(3)(c). Consequently, the fact that a provision dealing with victimisation is contained in an occupational health and safety statute does not, without more, prove that it is not an industrial law.
Fairfax’s argument proceeds on an assumption that if a law is an “occupational health and safety law” it cannot also be an “industrial law”. No authority other than Brolrik has been advanced for such a proposition and it seems unlikely to be correct, given the context in which occupational health and safety laws operate. Indeed, the very existence of s.16(3)(c) concedes the possibility that they could be, and it may be noted that Finklestein J in Independent Education Union v Geelong Grammar School [2000] FCA 557 said at [30] that the Victorian Occupational Health and Safety Act may be an industrial law.
In any event, the definition of “industrial law” in s.779 of the Act is the relevant statutory provision requiring application here, not s.16 which was the subject of the Brolrik case. To the extent that s.779 refers to laws “however designated” which regulate “the relationships between employers and employees” it admits of an argument that occupational health and safety laws, at least when they deal with victimisation of employees, may be “industrial laws” because they deal with an aspect of the relationship between employers and employees.
Fairfax submitted that, assuming that the Occupational Health and Safety Act 2000 (NSW) is an “industrial law” for the purposes of ss.779 and 793, there was no evidence of WorkCover’s capacity to enforce its provisions. However, for the reasons expressed above at [21] and [24] I would be reluctant to dismiss the application at this stage on the basis of want of evidence.
In further support of its submission Fairfax has cited the reasons for judgment of Finklestein J in Independent Education Union v Geelong Grammar School, where his Honour said in relation to the Victorian Occupational Health and Safety Act:
The suggestion that Dr Holden was dismissed because he proposed to make a complaint to a body having the capacity under an industrial law to seek compliance with that law (s 298L(1)(i)) is a matter of some difficulty, but I tend to the view that it is not made out. An industrial law is defined in s 298B(1) to mean a law that, among other things, regulates the relationship between employers and employees. Dr Holden has threatened to raise his concerns with Workcover which is the Victorian body that administers the Occupational Health and Safety Act 1985 (Vic). In certain respects that Act regulates the relationship between employers and employees by imposing duties on employers to maintain a working environment that is in a safe condition and without health risks (s 21(1)). However, there seems to be no mechanism under that Act by which a person or body can secure “compliance” with the obligations that are imposed. The statute does make provision for the imposition of penalties when there is a contravention. As presently advised I do not believe that a person who has the ability to bring proceedings for a penalty under the Occupational Health and Safety Act, is a person who has the capacity to seek “compliance” with that Act. Section 298L(1)(i) seems to be directed to a situation where an employer can be compelled to perform or refrain from performing certain acts that are connected with the relationship between employer and employee. Thus, although the Occupational Health and Safety Act may be an industrial law, it is not a law in respect of which a person can compel compliance. This tentative opinion would rule out the applicability of s 298L(1)(i). (at [30])
However, nothing has been put before the Court to demonstrate that the Victorian legislation in respect of which his Honour expressed these tentative and obiter views is relevantly identical to the NSW legislation as it stood at the relevant time. Nor do his Honour’s comments shed any light on how WorkCover NSW’s powers to issue improvement and prohibition notices should be considered. In relation to the former, s.91 of the Occupational Health and Safety Act 2000 (NSW) provides:
(1) If an inspector is of the opinion that any person:
(a)is contravening any provision of this Act or the regulations, or
(b)has contravened such a provision in circumstances that make it likely that the contravention will continue or be repeated,
the inspector may issue to the person a notice requiring the person to remedy the contravention or the matters occasioning it within the period specified in the notice.
(2)The period within which a person is required by an improvement notice to remedy a contravention or the matters occasioning the contravention must be at least 7 days after the issue of the notice. …
In relation to prohibition notices, s.93 of the Occupational Health and Safety Act 2000 (NSW) provides:
(1)If an inspector is of the opinion that at any place of work there is occurring or about to occur any activity which involves or will involve an immediate risk to the health or safety of any person, the inspector may issue to the person who has or may be reasonably presumed to have control over the activity a notice prohibiting the carrying on of the activity until the matters which give or will give rise to the risk are remedied. …
Failure to observe such notices attracts penalties (ss.92 and 94) and it is arguable that such provisions amount to a capacity on the part of WorkCover to seek compliance with the Occupational Health and Safety Act 2000 (NSW).
It is possible that a complaint to WorkCover would fall within the scope of s.793(1)(j) but the point has not been argued at a level of detail such that any particular view can be reached confidently at this interlocutory stage. For instance, in his oral submissions on 25 October 2007 Mr Dowling misunderstood the role of WorkCover and characterised it as an “industrial instrument” and the respondent in its written submissions pointed out that there was no evidence that WorkCover has any capacity to be involved in, or any relevant capacity to do anything in relation to, the matters concerning the applicant. Consequently, I cannot conclude that Mr Dowling’s claim that Fairfax breached s.792 of the Act, because he threatened to refer to WorkCover the issues he wanted resolved, has no reasonable prospects of success.
Participation in a proceeding under an industrial law
As to Mr Dowling’s claim based on a contravention by Fairfax of s.792 arising out of conduct described in s.793(1)(k), I accept Fairfax’s submissions that there is no evidence that he participated in or proposed to participate in a proceeding under an “industrial law” at any time prior to the termination of his employment.
If WorkCover were to have taken action in respect of Mr Dowling’s potential complaint, that would not have amounted to him participating in a proceeding under an industrial law. It would have been action by WorkCover alone. In Mr Dowling’s email to David Kirk of 16 April 2007, which is part of annexure “A” to his affidavit of 7 August 2007, Mr Dowling complained that the alleged bullying, intimidation and bastardisation was in “clear breach of NSW Occupational Health and Safety Law and NSW Industrial Relation Law.” He went on to say that if his complaints were not “dealt with summarily I will have no choice but to look at other options in dealing with them”.
In paragraph 4 of that affidavit Mr Dowling also says;
… on the 8th of May at about 4pm I was given a warning letter. I phoned and left a message for Linda Price. She called me back at about 6pm, I complained about the warning letter to her. I said words to the effect “They are threatening to sack me and believe I can take out a court order stopping them from sacking me. I also told Natalie Carrington yesterday that I would be making a complaint to Workcover but have decided to at least wait until after the meeting with you and Carolyn Bradley tomorrow.”
The statements by Mr Dowling in the email and conversations referred to in these quotations do not amount to a proposal by him to participate in a proceeding under an industrial law. It is clear from what Mr Dowling says he said, that the contents of his statements do not meet the factual criteria of s.793(1)(k).
Reverse onus of proof
As to the reverse onus of proof which was previously in s.298V and is now in s.809, the Full Federal Court said in Davids Distribution:
Section 298K requires that an applicant for relief under s.298U must prove that the motive for the conduct was a prohibited reason. That is, the applicant must prove the state of mind of the employer. Where an employee is dismissed, the reason for the dismissal must be a reason falling within s.298L(1) of the Act.
Section 298L(1)(l) requires that the applicant prove the employee was dismissed from his or her employment. It also requires it be proved that the employee was at the time of the dismissal dissatisfied with his or her industrial conditions, and was a member of an industrial association that was seeking better industrial conditions. In order to make the link between the dismissal and the circumstances which the applicant must establish to bring the dismissal within s.298K, the Act provides in s.298V a statutory presumption that the link exists in certain circumstances. Under s.298V in proceedings under Div 6 of Pt XA of the Act for a contravention of a section in Pt XA, an allegation in those proceedings of conduct for a prohibited reason is sufficient for it to be presumed that the conduct was engaged in for that reason unless the employer proves to the contrary. Section 298V does not relieve the applicant in proceedings under Div 6 of Pt XA of the Act from proving on the balance of probabilities each of the ingredients of the contravention. It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise: R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 507. (per Wilcox and Cooper JJ at 500 – 501 [108], [109])
In this case, the statutory presumption now found in s.809 may operate if the preliminary issues as to the role of WorkCover are made out. This provides an added basis for not dismissing the proceedings in their entirety and for permitting Mr Dowling to have an opportunity to move the Court to amend his application to allege a breach of s.792 based on conduct described in s.793(1)(j) of the Act.
However, there is no occasion for the statutory presumption to operate in relation to s.793(1)(k). As in the case of Mr Dowling’s claim under s.659(2)(e), there is nothing in the material placed before the Court which suggests a real issue to be tried in respect of s.793(1)(k). Again, were it Mr Dowling’s case that he said something other than what he has so far deposed to in his affidavits, he has had the opportunity to file additional evidence of this. The fact that he has not done so leads inevitably to the conclusion that the affidavits filed so far set out Mr Dowling’s version of events and that he is satisfied with their accuracy and completeness. That being so, there is no reason to conclude that additional evidence is likely to change the situation. That situation is that this foreshadowed claim has no reasonable prospects of success, notwithstanding s.809.
Issue 3 – joinder of 17 individuals to the proceedings
As noted above at [26], at the hearing on 25 October 2007 Mr Dowling indicated that he no longer wished to join the individuals in question into these proceedings. This issue is dealt with further in my reasons for judgment in the directors and officers proceedings: Dowling v Kirk & 16 Ors [2007] FMCA 2106.
Issue 4 – the applicant’s application to “strike out” the respondents’ notice of motion
In his application in a case filed on 24 September 2007 Mr Dowling sought the following orders:
1. The respondent’s notice of motion to dismiss proceedings in relation to s.659(2)(e) be struck out for want of jurisdiction, out of time and for being frivolous and vexatious.
2. I am summarily reinstated to my appointment with John Fairfax Publications Pty Limited – pursuant to the Federal Magistrates Act 1999 – s.17A(1).
Mr Dowling complains that it is unreasonable that, as an applicant, he is subject to strict time limits for the commencement of his proceedings and yet Fairfax permitted proceedings initially to be commenced incorrectly in the NSW Commission and then be conducted in the AIRC before it applied to have his proceedings summarily dismissed once they had been commenced in the Federal Court. He complains that Fairfax has endeavoured to delay the progress of his claim and submits that if an application for summary dismissal were to be made, it should have been made in the AIRC rather than in the Court.
As to the first of the orders sought, the assertion of want of jurisdiction is misconceived. Whether Fairfax’s notice of motion is meritorious or not, s.17A of the Federal Magistrates Act 1999 empowers the Court to dismiss a proceeding summarily if it is satisfied that an applicant has no reasonable prospects of successfully prosecuting that proceeding. Rules of Court have been made pursuant to that power and are found in div.13.3 of the Rules of this Court. Consequently, the Court has jurisdiction to entertain the respondent’s application.
As to the respondent’s notice of motion being “out of time”, it should be observed that it was filed while the proceedings were still in the Federal Court. While proceedings are pending in a court, parties may apply to that court for orders. As the proceedings had not been concluded at the time the respondent filed its notice of motion, it could not be said that the application was made too late.
Mr Dowling submitted that Fairfax’s application ought to have been brought in the AIRC and not in the Court. He referred in argument to ss.645 and 646 of the Act, submitting that Fairfax ought to have relied upon those provisions to seek the dismissal of his claim when it was before the AIRC. He submitted that was wrong that Fairfax did not do so and instead to bring such an application in the Court.
However, there is a number of answers to Mr Dowling’s submissions. First, Mr Dowling confuses the orders which might be sought under those provisions (i.e. dismissal of the proceedings) with the basis on which such orders might be made. In relation to the basis on which such an order might be made, s.645 deals with motions for dismissal on the ground that the AIRC does not have jurisdiction to deal with the matter before it. This is an issue quite different from the one being advanced by Fairfax in the application before the Court. Section 646 deals with applications to dismiss proceedings in the AIRC that are frivolous, vexatious or lacking in substance, the latter expression really meaning nothing more than the former two: State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 per Ormiston JA at 110; McGlade v Human Rights and Equal Opportunity Commission (2000) 180 ALR 507 per Carr J at 515. None of those grounds is a basis of Fairfax’s motion in these proceedings, even if the submission that Mr Dowling has no real prospects of success is not very distant from them.
Secondly, Mr Dowling has not adduced evidence of what facts he relied upon in his application to the AIRC. Importantly, he has not submitted that the facts placed before the AIRC were the same as those deposed to in his affidavits in these proceedings. In such circumstances, it cannot be assumed that there was a proper basis on which Fairfax could have made the application for summary dismissal which Mr Dowling submits it should have made.
Thirdly and more significantly, Mr Dowling’s submission overlooks the fact that the AIRC and the courts are quite different entities performing different functions. The AIRC is an administrative, not judicial, body which, in the current circumstances, was empowered to attempt to conciliate the dispute between the parties and to arbitrate an unresolved dispute if that was subsequently Mr Dowling’s election. The s.650 certificate attached to the application commencing these proceedings indicates that the AIRC did attempt conciliation but was unsuccessful. Considerations can apply in conciliation proceedings, where there may be hopes of a negotiated settlement, which are different to those which apply in litigation. The fact that a respondent does not attempt to terminate conciliation cannot suggest that it concedes that an applicant has an arguable case or reasonable prospects of success in the event of ensuing litigation. During conciliation, a party may simply be willing to make concessions which, strictly, it has no obligation to make, in order to resolve an issue quickly and inexpensively. In this case it can be noted that Commissioner Raffaelli stated that he could not give a specific assessment of the merits of the application before him in the absence of evidence duly tested in cross-examination.
Moreover, what happened at the AIRC, other than the outcome of the conciliation, cannot have any relevance to court proceedings which are concerned with the judicial determination of the claim which is brought to the Court. Once a matter is litigated, an applicant bears an onus of proof and, in order to succeed, the applicant is required to adduce evidence which discharges that onus. Such an onus of proof does not exist at the AIRC when exercising its conciliation powers. Consequently, the considerations which obtain before the AIRC and before the courts are quite different and the fact that a respondent does not seek summary dismissal before the AIRC during a conciliation cannot prevent it from seeking that order from a court after such conciliation has failed.
Contrary to Mr Dowling’s claim, it could not properly be said that Fairfax’s application was frivolous and vexatious. As RD Nicholson J observed in Pridmore v Magenta Nominees Pty Limited (1999) 161 ALR 458 at 462-463 [24], the terms “vexatious” and “frivolous” have been used interchangeably, although “frivolous” has been held to be apt to describe proceedings in which the plaintiff’s claim is so obviously untenable that it cannot possibly succeed and “vexatious” has been held to be apt to describe an action which is a sham and which cannot possibly succeed. Vexatious proceedings have also been described as proceedings which impose on a respondent party an unnecessary injustice in the form of a burden other than and additional to the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy: Walton v Gardiner (1993) 112 ALR 289 per
Brennan J at 312. Clearly, Fairfax’s motion is not so obviously untenable as to be frivolous. Similarly, although Mr Dowling objects to the application for summary dismissal being made in the Court rather than at the AIRC it does not impose a burden on him which is any different to the interlocutory burden borne by many litigants. In any event, it is the substance of the proceeding which will determine whether it is vexatious, not the manner in which it is conducted: Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478. In Attorney-General v Wentworth (1988) 14 NSWLR 481 Roden J expressed the test in the following terms:
1Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless. (at 491)
It is apparent that Fairfax’s motion is properly brought within the rules and is brought on a proper and orthodox basis.
Consequently, Mr Dowling’s application in a case discloses no basis for refusing the order sought by Fairfax or for “striking out” its notice of motion. To that extent it will be dismissed.
The second order sought in this application in a case is for summary reinstatement. As this issue was not argued at the hearing it will be stood over for consideration on a date to be fixed.
Subsequent application in a case
As already noted in these reasons, after I reserved judgment on Fairfax’s applications Mr Dowling filed an application in a case on which argument was heard on 7 November 2007. In that application in a case, Mr Dowling sought orders for financial compensation in the following terms:
1. That I am summarily given damages (financial assistance). The minimum order that I would request is that John Fairfax Publications (Fairfax Media) pay me $360 (GST inclusive) per working day, paid on a daily basis direct debit (total = $1800 per week GST inclusive) into my bank account. I will supply Fairfax Media with an ABN Number. This would be easy for Fairfax to set up.
2. The above order is to stay in effect for 22 days after any decision by you and should be reactivated if any party appeals your decision.
3. This should be back dated to the 18 June 2007, which is when we had the Conciliation meeting at the Australian Industrial Relations Commission.
Mr Dowling also complained that the conduct of the proceedings by the Court, first by the registry and latterly by me, evidences bias against him and invited me to disqualify myself.
Interim relief
The final relief sought by Mr Dowling in his initiating application was “reinstatement” pursuant to s.659(e) of the Act.
As has been noted earlier in these reasons, in his notice of motion filed on 7 August 2007, Mr Dowling sought to amend his application and to add further respondents. He also sought leave to rely on alleged breach of s.792 of the Act. At this point, Mr Dowling’s notice of motion has not been dealt with. That being the case, the only interim relief currently available to him would be such relief as may be available flowing from the alleged breach of s.659(2)(e). However, for the reasons which have been given above, that claim is to be dismissed.
Section 665(1) of the Act provides:
If the Court is satisfied that an employer has contravened section 659 in relation to the termination of employment of an employee, the Court may make one or more of the following orders:
(a) an order imposing on the employer a penalty of not more than $10,000;
(b) an order requiring the employer to reinstate the employee;
(c) subject to subsections (2), (3), (4) and (5), an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate;
(d) any other order that the Court thinks necessary to remedy the effect of such a termination;
(e) any other consequential orders.
The sub-section makes it clear that the orders available under s.665 may only be made “if the Court is satisfied that an employer has contravened s.659 in relation to the termination of the employment of the employee”. Until the Court is satisfied that those criteria have been met it may not make any of the orders set out in paragraphs (a) to (e) of the subsection. As that part of the proceedings which alleges breach by Fairfax of s.659 will be dismissed there is no basis upon which the Court can make any of the orders set out in s.665.
The question therefore arises concerning what interim relief may be granted in respect of the proposed claim under s.792. Had Mr Dowling’s motion to amend his claim been already granted, his claim would be for a civil remedy pursuant to s.807 of the Act which provides:
(1)The Court, on application by an eligible person, may make one or more of the following orders in relation to a person (the defendant) who has contravened a civil remedy provision of this Part:
(a)…
(b)an order requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention;
(c) any other order that the Court considers appropriate.
(2)…
(3)The orders that may be made under paragraph (1)(c) include:
(a) injunctions; and
(b)any other orders that the Court considers necessary to stop the conduct or remedy its effects.
On 25 October 2007 Mr Dowling made an instanter application for reinstatement. I was not minded to make the order sought given that the principal application for determination before me at that time was whether the proceedings would be dismissed in their entirety for want of reasonable prospects of success. I concluded that it was not appropriate to entertain submissions on the interim relief sought until a determination had been made on the respondents’ applications to dismiss the proceedings. This subsequent application seeks to re-agitate an issue which was ruled upon on 25 October 2007, namely the appropriateness of granting interim relief when there is before the Court an application to dismiss the proceedings as a whole.
Given that this application in a case is, in essence, one seeking damages before any such entitlement has been proved, it is even less appropriate to grant the interim relief sought than it would have been to grant the reinstatement sought in the instanter application of
25 October 2007. For the same reasons as those expressed in relation to the application made instanter on 25 October 2007, and set out above at [92], this application for interim relief will be refused.
Disqualification
In support of his application that I disqualify myself in these proceedings Mr Dowling has filed an affidavit sworn 5 November 2007. In that affidavit, which is a mixture of evidence and submissions, Mr Dowling raises a number of matters which, he says, demonstrate actual bias on my part. Before considering the applicable law it is appropriate to deal with the factual matters canvassed by Mr Dowling.
As has been described above, Mr Dowling has brought three sets of proceedings all of which arise out of the termination of his employment with Fairfax. These are proceedings SYG 2671 of 2007 (the principal proceedings), SYG 2703 of 2007 (the contempt proceedings) and SYG 2704 of 2007 (the directors and officers proceedings).
These principal proceedings were transferred to this Court by the Federal Court and allocated by the Court’s registry to my docket. The contempt proceedings were commenced in this Court and allocated by the registry to my docket. The directors and officers proceedings were commenced in this Court and originally placed in the docket of Raphael FM.
By administrative decision and before any of the matters had been mentioned in Court, matter SYG 2704 of 2007 was moved from Raphael FM’s docket and placed in mine.
On 28 September 2007 it was ordered that each of the matters be listed on 25 October 2007 for the hearing of the respondents’ applications that each of the proceedings be dismissed on the basis that none of them had reasonable prospects of success.
Private communication regarding consolidation
Mr Dowling complains that the three matters commenced by him were placed in my docket without his consent. He complains that this was as a result of a private communication received from the respondents’ solicitors that I hear all the matters.
The communication to which Mr Dowling refers is annexed to his affidavit and is a letter from the respondents’ solicitors to the Registrar of the Court dated 12 September 2007. In that letter, the respondents’ solicitors suggested that the three matters be listed for directions on the same day saying, amongst other things:
… given that two of the Proceedings are already listed before Federal Magistrate Cameron on Friday 28 September 2007, our preference would be for proceedings SYG 2704 of 2007, which are currently listed for directions before Federal Magistrate Raphael, to be transferred to Federal Magistrate Cameron’s directions list on Friday 28 September 2007.
It is to be observed that the letter in question was addressed to the Registrar and not to Raphael FM or to me. The copy of the letter annexed to Mr Dowling’s affidavit indicates that a copy was also sent to him. The fact that he did receive a copy is confirmed by his email to the Court dated 17 September 2007, a copy of which is also annexed to his affidavit, which not only refers to the letter from the respondents’ solicitors but also attaches a copy. As a result, it cannot properly be said that the communication was private. However, it is correct to say that the Court acted on the suggestion made by the respondents’ solicitors without reference to Mr Dowling. Having been alerted by the respondents’ solicitors to the way Mr Dowling’s three matters had been allocated between Raphael FM and me, an administrative decision was made that the matter in Raphael FM’s docket be transferred to mine.
That decision greatly upset Mr Dowling and in light of the objections raised by Mr Dowling to that decision perhaps it was a decision which would have been better made in open court. However, none of the matters had been mentioned in court at that stage and I do not think that it can truly be argued that at such an early stage any matter cannot be moved from one docket to another by administrative decision.
The Court was made aware of Mr Dowling’s concerns by his email dated 17 September 2007. Consequently, when the matters were mentioned at their first court dates on 28 September 2007, he was invited to express his concerns and to make submissions about whether the matters should proceed together. Far from ignoring his email as he alleges, it was expressly referred to at that directions hearing and he was invited to express his concerns in open court. He did not really take up the opportunity and, instead, consented to the matters being listed together. During the course of that directions hearing this exchange took place:
FEDERAL MAGISTRATE: What we need to decide is do we list all the matters together to have the arguments on these applications and if we are going to do that, when we do it. Is there anything that you want to put to me about why the matters should or should not at least run together?
MR DOWLING: Well, the application for contempt obviously has to be dealt with separately. It - I suppose it can be run together but it has to be dealt with separately as far as I can see.
FEDERAL MAGISTRATE: But we could, perhaps, do one after the other on the same day?
MR DOWLING: Yes, I don't have a problem with that.
Later that day, Mr Dowling rang my chambers making various accusations including that the Court’s registry was biased against him and requesting that matter SYG 2704 of 2007 be “transferred back”. My Associate wrote to Mr Dowling that day advising him that the appropriate method of dealing with the issues he had raised by telephone was to make an application to the Court. No such application was filed.
Mr Dowling alleges that the requirement that he file an application when, in his eyes, the respondents had a matter transferred following a simple letter, demonstrates bias. I reject the allegation. At the time the decision to reallocate the directors and officers proceedings was made, no judicial officer had sat in the matter and the transfer was an administrative issue. By the time Mr Dowling was communicating with my chambers on 28 September 2007, the three cases had already been mentioned in court, where he had had an opportunity to make whatever submission he wanted to make in relation to the allocation and listing of the matters, and they had all been listed for hearing before me. To move one of those matters from my docket to another Federal Magistrate’s docket at that point would have required vacating the hearing date of that matter and a reconsideration of whether it was convenient to have the matters heard at the same time or for one matter to be heard separately. Different consideration applied to Mr Dowling’s request because the circumstances were different.
As I have observed, although the original decision to transfer the directors and officers proceedings into my docket might, with the benefit of hindsight, have been better taken following argument in court, the Court has power to do what it did and I reject Mr Dowling’s allegations that the decision is demonstrative of bias on the part of the Court or its officers. I also reject the implication that the requirement that he file an application to “transfer back” one matter after it had been listed for hearing before me manifested bias or prejudice against him.
General conduct of hearing on 25 October 2007
In paragraphs 9 to 13 of his affidavit sworn 5 November 2007, Mr Dowling makes numerous claims about the conduct of the hearing on 25 October 2007. However, the affidavit is not an accurate or complete record of the hearing on 25 October 2007 and I am not of the view that the conduct of the hearing on 25 October 2007 would lead a fair-minded lay observer to reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question I am required to decide.
Failure to order summary reinstatement on 25 October 2007
In paragraphs 14 to 17 of his affidavit sworn 5 November 2007, Mr Dowling says that I should have acceded to his request at the hearing on 25 October 2007 to order his immediate reinstatement, pending delivery of my decision on the respondents’ applications. As his affidavit suggests, there was discussion of that request during the course of the hearing on that day but the fact that I decided that it was not appropriate to determine such a claim when I had to decide whether Mr Dowling’s applications had reasonable prospects of success at all is not demonstrative of bias, whether actual or apprehended.
Improper communications
In his affidavit of 5 November 2007 Mr Dowling asserts that I had private communications with the solicitors for the respondent. I reject this suggestion. The first letter he refers to was the one dated
12 September 2007sent by the respondents’ solicitors to the Registrar of the Court and copied to him. It was hardly a private communication to me. As to the second alleged communication, I observe that it is, in fact, a copy of a letter addressed to Mr Dowling dated 19 September 2007 which responded to his email to the Court dated 17 September 2007. A copy of the letter was sent to the Registrar of the Court and, in due course, placed on the file. Mr Dowling’s submission has no basis in fact.
Biased fixing of court dates
Mr Dowling complains that in two emails from my Acting Associate to him of 24 September 2007, the first referred to the contempt proceedings being listed for “hearing of interlocutory application” on 28 September 2007 and the second amended that listing to be for “first court date”. He says that the listing changed because at some point during 24 September 2007 he filed an affidavit in the registry at Queens Square and that, in the intervening period, it came to my attention in chambers at John Maddison Tower. It did not come to my attention at that time and I observe, as the matter in question had not yet been mentioned in Court at all at that point, that the appropriate listing had always been for a first court date.
Mr Dowling also complains that at the first court date a hearing date which was convenient to the respondents was fixed. It should be recorded that the Court was advised that the respondents’ counsel was available on three dates in October, all of them being less than one month from that first court date. Mr Dowling did not suggest any other date in October as being preferable or more suitable for him. None of the dates suggested by counsel was suitable to the Court but, in order to progress the matter quickly I determined to re-list a matter which had already been listed on 25 October 2007.
The transcript of that first court date also reveals that, as at that date, I had no available dates between the directions hearing and 25 October 2007 which might have been suggested to the parties as an alternative to the dates suggested by the respondents. To the extent that bias in the allocation of a hearing date is alleged, I reject it.
Bias in conduct of hearings
Mr Dowling submits that at the first court date the respondents’ notice of motion to dismiss his application in this case should have been dismissed and that the failure to do so demonstrated bias. No such application was made at the first court date by Mr Dowling. No bias is been demonstrated by the Court not doing something it was not requested to do.
In relation to the hearing on 25 October 2007 Mr Dowling says that various aspects of the conduct of the hearing demonstrated partiality on my part towards the respondents. I reject this submission. Mr Dowling was given every opportunity to address the matters raised by the respondents in the applications to dismiss the proceedings, which he did at some length. The remainder of his complaints reflect an unrepresented litigant’s unfamiliarity with the processes of the Court rather than bias on the part of the presiding judicial officer.
I also record that I have kept an open mind in relation to the parties’ respective arguments and it should be noted that no oral evidence has been taken at this point.
The filing of Mr Dowling’s recent application in a case
The applicant suggests that the delays and difficulties he encountered in filing his application on 30 October 2007 were, in some way, caused by me. It is true that the registry and my Acting Associate demonstrated reluctance that the application be accepted for filing, given that in its original form it sought merely to re-agitate an issue which had, in substance, if not in its precise terms, been determined on 25 October 2007. However, as it was I who directed that the application be accepted for filing, once I had become aware of the difficulties which had been placed in the way of the acceptance of the document, I reject the submission that this event demonstrated any bias on my part against Mr Dowling.
Discussion of the law
Being convinced that I am actually biased against him, Mr Dowling has speculated on the reasons why this might be so. I reject each one of Mr Dowling’s speculations and accusations.
I am also satisfied that I have not approached the determination of the matters before me with a mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented, to cite the test in Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507. As Gleeson CJ and Gummow J said in Jia’s case at 531-532 [71]:
The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
As to apprehended bias, in Johnson v Johnson (2000) 201 CLR 488, the High Court said:
It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at 492 [11])
Although Mr Dowling might feel keenly that I have not been impartial and unprejudiced I do not believe that a fair-minded lay observer would reasonably apprehend that to be the case.
In short, Mr Dowling’s concerns are without substance. In such circumstances, it would be an abdication of the judicial function were I to disqualify myself from determining these proceedings. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 348 Gleeson CJ, McHugh, Gummow and Hayne JJ said:
Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
Consequently, I do not disqualify myself from the future hearing and determination of these proceedings.
Finally, in light of Mr Dowling’s concerns and as a postscript, I record that on 12 December 2007, and after these reasons for judgment were largely complete, in a social setting I was introduced to a solicitor from Freehills and his two companions who may also have been Freehills solicitors. He and I had a conversation which was not lengthy and during which this matter was not discussed. I am not of the view that this conversation should alter the decision I have reached on Mr Dowling’s disqualification application which is set out in the paragraph immediately preceding this paragraph.
Conclusion
For the reasons expressed earlier I am satisfied that the applicant has no reasonable prospects of successfully prosecuting the proceedings to the extent that he alleges breach of s.659 and, to that extent, they will be dismissed. However, his notice of motion to amend may raise at least one arguable point and the matter will be listed for argument on that motion.
Also for the reasons given earlier, the applicant’s application in a case dated 24 September 2007 will be dismissed to the extent it seeks the dismissal of the respondent’s notice of motion. The second order sought in that application in a case has not been dealt with and will stand over to a date to be fixed.
For the reasons given above, the applicant’s application in a case dated 30 October 2007 will be dismissed.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 20 December 2007
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