Dowling v John Fairfax Publications Pty Ltd (No.2)

[2008] FMCA 184

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DOWLING v JOHN FAIRFAX PUBLICATIONS PTY LTD (No.2) [2008] FMCA 184

INDUSTRIAL LAW – Adjournment pending decision of Full Court of the Federal Court on appeal from interlocutory decision in related proceeding – summary judgment not available where no pleaded claim remains on foot – interim relief not available where Court not satisfied that the respondent has breached a civil penalty provision – operation of s.807 different from operation of old s.298U – currently no serious issue to be tried – damages would be an adequate remedy – the balance of convenience did not favour making the order sought.

Workplace Relations Act 1996, ss.659, 665, 792, 793, 807
Federal Magistrates Act1999, s.17A

Applicant: SHANE DOWLING

Respondent: JOHN FAIRFAX PUBLICATIONS PTY LIMITED

File Number: SYG 2671 of 2007

Judgment of: Cameron FM

Hearing date: 4 February 2008

Date of Last Submission: 4 February 2008

Delivered at: Sydney

Delivered on: 4 February 2008

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms K. Eastman

Solicitors for the Respondents: Freehills

ORDERS

1. The hearing of the notice of motion dated 7 August 2007 be stood over to a date to be fixed.

2. Within 14 days of delivery of the judgment of the Full Court of the Federal Court in the appeal from my judgment in proceedings SYG 2704/2007 dated 20 December 2007, or within 14 days of settlement of those appeal proceedings, the parties are to approach my Associate for the allocation of a date for directions.

3. The application in a case dated 24 September 2007 be refused.

4. The application today for interim relief in the nature of reinstatement and damages or either of them be refused.

5. All costs of these proceedings be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2671 of 2007

SHANE DOWLING

Applicant

And

JOHN FAIRFAX PUBLICATIONS PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings are the principal of three proceedings brought by the applicant against a number of individuals associated with Fairfax Media Publications Pty Limited. These proceedings have been described in my judgment of 20 December 2007 as the “principal proceedings”. 

2. Other proceedings which were described as the “contempt proceedings” were dismissed on 20 December 2007 and leave to appeal from my judgment in those proceedings has been refused. 

3. The third proceedings commenced by the applicant have been described in my earlier reasons as the “directors and officers proceedings”. Leave to appeal from my judgment of 20 December 2007 in those proceedings was sought and has been granted in relation to the proper meaning of s.793(1)(k) and (l) of the Workplace Relations Act 1996 (Cth) (“WRAct”).

4. My judgment in these the principal proceedings was also the subject of an application for leave to appeal but that application was not successful. Notwithstanding that the application for leave to appeal my decision in these proceedings was not successful, nevertheless, the appeal in the directors and officers proceedings has direct relevance to this case. That is because of the nature of the applications which are currently before the Court in these proceedings. 

5. One of the matters which has to be addressed today is the extent to which the appeal in the directors and officers proceedings will impact on the progress of this case. Another issue which has to be considered is whether the applicant is entitled to summary judgment in the nature of reinstatement. The final issue to be considered is whether the applicant is entitled to interim relief by way of reinstatement or by way of damages. 

Adjournment

1. It has been agreed between the parties in relation to the directors and officers proceedings that those proceedings in this Court must await the outcome of the appeal to the Full Court of the Federal Court. In these proceedings the applicant has filed a notice of motion dated 7 August 2007 in which he seeks leave to amend his application by adding a ground based on an alleged breach of s.792 of the WRAct arising out of conduct described in s.793(1)(j) and (k) of that Act. In argument today the applicant indicated that were it necessary to advance these proceedings, he would be willing to abandon that part of the amendment relating to s.793(1)(k). However, as will become clear in the remainder of these reasons, I think that that concession is unnecessary because it will have no relevant significance.

2. The reason why the applicant suggested not pursuing paragraph (k) of s.793(1) is that its proper interpretation is unavoidably affected by the outcome of the appeal in the directors and officers proceedings and therefore were his application to amend to include that paragraph, then it would need to await the decision of the Full Court of the Federal Court in order that the proper criteria for the grant of leave to amend might be considered.

3. However, the respondent foreshadowed in submissions today that it proposes to file a notice of contention in the directors and officers proceedings to raise that part of my decision in the directors and officers proceedings which dealt with s.793(1)(j). That being so, even were the applicant to abandon that part of his amendment application which relates to s.793(1)(k), the fact that the respondent proposes to seek orders in relation to s.793(1)(j) means that the amendment which the applicant seeks is going to be affected significantly, and possibly determined, by the decision of the Full Court of the Federal Court in the directors and officers proceedings.

4. Consequently, it is clear that the question of whether leave to amend should be granted will be affected by the reasons for judgment of the Full Court of the Federal Court in the directors and officers proceedings and until that decision is delivered I should wait. I should see what the proper interpretation of those provisions is in order to guide me as to what are the proper criteria to be applied in determining whether the application to amend should be granted. 

Summary judgment

1. By an application in a case dated 24 September 2007, the applicant sought an order that he be summarily reinstated to his employment with the respondent pursuant to s.17A(1) of the Federal Magistrates Act1999 (Cth); that is to say, the applicant was seeking reinstatement by way of summary judgment. At the moment there is no live claim extant in the proceedings before me. The only claim which was made in the original application was one in relation to alleged breaches of s.659 of the WRAct. However, in my judgment of 20 December 2007 that claim was dismissed.

2. Until the applicant has received leave to amend there is no claim on foot in these proceedings, although the proceedings themselves exist. In the absence of a recognisable claim, there can be no claim in respect of which summary judgment can be granted. Consequently, the application in a case dated 24 September 2007 will be refused. 

Interim relief

1. The nature of the orders by which the applicant seeks reinstatement to his former employment with the respondent has been the subject of some confusion, in my view, during the conduct of these proceedings.  It has not been clear until today whether the applicant was seeking summary judgment or interim reinstatement and it has become clear during the course of argument today that he has sought both. However, his application for reinstatement on an interim basis was only articulated with any clarity during the course of argument today.  Notwithstanding that this application came without real notice, as did its related application for interim relief in the nature of damages, the respondent was not completely unprepared for it and I permitted the applicant to proceed with his application, notwithstanding that it was made instanter. 

2. In relation to the claim for reinstatement on an interim basis, it is important first to identify what powers the Court might have to make such an order. Although the Federal Magistrates Court is a court of law and equity and can order injunctions, including mandatory injunctions should that be appropriate, it can only do so in circumstances where it has been conferred with jurisdiction by another Act of Parliament; the Court does not derive its jurisdiction from its own Act. In the case of workplace relations, the Court derives its jurisdiction from the WRAct.

3. In relation to the claim for unlawful dismissal, that aspect of these proceedings has been disposed of by my orders of 20 December 2007. Therefore, orders under s.665 of the WRAct are not available. What the applicant seeks to raise now I believe is a claim which is based upon, or linked to, his application for leave to amend. Certainly, it cannot be based on the unlawful dismissal claim because leave to appeal from that decision has been refused.

4. Accepting that the applicant's claim is now based on dismissal for prohibited reasons arising out of ss.792 and 793, the power which the Court has to grant relief is to be found in s.807. Section 807 relevantly provides:

807Penalties etc. for contravention of civil remedy provisions

(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)an order imposing a pecuniary penalty on the defendant;

(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.

1. It is significant that that subsection talks about orders being made in circumstances where a person “has contravened a civil remedy provision”. That provision is sufficiently different from its predecessor, s.298U, for it to be considered to be different in its application from its predecessor section, which relevantly provided as follows:

   In respect of conduct in contravention of this Part, the Court may if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders …

2. Here, I believe I must, before I exercise any power available to the Court under s.807, find that the respondent has contravened a civil remedy provision of Part 16. So far in these proceedings that has not occurred. Consequently, I am not satisfied that the Court has power to make the order for interim relief which the applicant seeks.

3. However, should I be wrong in that conclusion, I turn to consider the criteria which should be applied to a claim for interim relief. The first criterion is whether there is a serious issue to be tried. At this point in these proceedings there is no serious issue to be tried because leave has not been given to amend to raise the matters which the applicant wishes to ventilate. That means that the only issue currently before the Court is the question of whether leave to amend should be granted.

4. It may be, if leave to amend is granted, that the applicant would have a good argument in relation to a breach arising out of conduct referred to in s.793(1)(j) and possibly (k). However, the Full Court of the Federal Court may take quite a different view and until that guidance is provided I cannot be confident that a serious issue does exist.

5. As to the adequacy of damages, the applicant has argued that he needs more money than he has. On that subject it should be noted that he is in employment, but otherwise there is no evidence of the applicant being in such a parlous financial position that it could be said that an order other than in the nature of damages must be made. Nothing the applicant has put before the Court indicates anything more than temporary embarrassment. He has demonstrated nothing of an irremediable nature which would justify a conclusion that damages would not be an adequate remedy. 

6. As to the balance of convenience, in his affidavit affirmed 23 January 2008, Mr Kevin Stokes, the Group General Manager of the respondent, paints a picture of the applicant as a person who was not a financial asset to the respondent, was a poor biller, a disruptive influence and a distraction to other employees and to management. In para.23

   
   

   Mr Stokes says that were the applicant to be reinstated:

   … the most likely outcome would be that Mr Dowling would have to be located in a different premises away from Fairfax's office at One Darling Island, Pyrmont … if I was to manage Mr Dowling effectively, it would also be necessary for me to relocate with him.  Such a step would be impractical for the following reasons:

   (a) the majority of the Fairfax Enterprises department is located at One Darling Island; and

   (b)a significant proportion of my work as Group General Manager involves managing various stakeholders of Fairfax (including managers, directors and account managers), which I carry out through face-to-face meetings and discussions with them. 

7. In para.17 of his affidavit Mr Stokes says:

   Based on my knowledge of Mr Dowling's previous unacceptable behaviour, it is my view that there is a real risk that he would repeat such behaviour if he were to be re-instated.  To manage the risk, I would have to be present at all communications that Mr Dowling has with Fairfax colleagues and clients, or would have to give my approval of such communications prior to their occurrence, including requiring me to undertake the following: 

   (a)I would have to review every email Mr Dowling wishes to send, whether to a colleague or client;

   (b)I would have to be copied in on every email Mr Dowling sends;

   (c)I would have to listen in on every telephone conversation

   
   

   Mr Dowling makes; and

   (d)I would need to be present at any meetings Mr Dowling attends.

8. Those are some of the matters confronting Fairfax were Mr Dowling to be reinstated, according to Mr Stokes. Mr Dowling in the meantime has been able to obtain alternative employment, although it must be conceded that this employment is not as remunerative as the employment he formerly held at Fairfax. But the management issues which Mr Stokes deposes to are not the only matters of concern to his former employer. Without quoting further from Mr Stokes’s affidavit, I refer to what he says in paras.13(a), 14, 20 and 22, and in particular, Fairfax's concerns expressed about their ability to provide Mr Dowling's former supervisor with a safe working environment free from harassment and intimidation. 

9. The possibility that such bad behaviour might continue is raised by the contents of the correspondence, which is found in Exhibit A. In this regard, I specifically refer to the email at p.1 of that exhibit where two Fairfax employees and its external solicitor are accused of criminal conduct, and the passage at p.24 of that exhibit in the paragraph numbered 4 where the applicant says:

   I filed an affidavit … in relation to the corrupt behaviour of Freehills and Fairfax that has occurred after my termination expecting it to stop. But it has only continued, if not gotten worse.  I [sic] friend once said to me “if you know the processes and you're a criminal you can abuse the system”. This sums up Freehills and Fairfax.

10. If that is Mr Dowling's attitude to his former employer with whom he wishes to be reinstated, it is difficult to see how the relationship can be a happy one. 

11. It should also be noted that since Mr Dowling's dismissal or termination the parties have moved on. He has been replaced at Fairfax and he himself has obtained alternative employment. In all the circumstances, I am not satisfied that the balance of convenience favours reinstatement on an interim basis.

12. As to damages on an interim basis, for the reasons already given, I am not satisfied that I have power under s.807 of the Act to make an interim order for damages. But even if I did, I am doubtful that there is currently a serious issue to be tried in this regard. I note that damages paid later would be sufficient compensation if any were to be ordered. I consider it quite inappropriate where liability has not been proved or admitted for any damages to be advanced.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date:  20 February 2008