Dowling v Kirk

Case [2008] FCA 165

FEDERAL COURT OF AUSTRALIA

Dowling v Kirk [2008] FCA 165

SHANE DOWLING v DAVID KIRK AND ORS
NSD 26 OF 2008

SHANE DOWLING v DAVID KIRK AND ORS
NSD 39 OF 2008

SHANE DOWLING v JOHN FAIRFAX PUBLICATIONS PTY LTD
NSD 40 OF 2008

RARES J
18 JANUARY 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 26 OF 2008

BETWEEN:

SHANE DOWLING
Applicant

AND:

DAVID KIRK
First Respondent

LINDA PRICE
Second Respondent

CAROLYN BRADLEY
Third Respondent

SHIVCHAND JHINKU
Fourth Respondent

JUDGE:

RARES J

DATE OF ORDER:

18 JANUARY 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 39 OF 2008

BETWEEN:

SHANE DOWLING
Applicant

AND:

DAVID KIRK
First Respondent

RON WALKER
Second Respondent

JULIA MARION KING
Third Respondent

ROGER CORBETT
Fourth Respondent

MARK BURROWS
Fifth Respondent

DAVID EVANS
Sixth Respondent

PETER YOUNG
Seventh Respondent

JOHN FAIRFAX
Eighth Respondent

NICHOLAS FAIRFAX
Ninth Respondent

GAIL HAMBLY
Tenth Respondent

LINDA PRICE
Eleventh Respondent

CAROLYN BRADLEY
Twelfth Respondent

KELLY DALY
Thirteenth Respondent

NATALIE CARRINGTON
Fourteenth Respondent

YEMEE FERNANDES
Fifteenth Respondent

KEVIN STOKES
Sixteenth Respondent

ROBERT WHITEHEAD
Seventeenth Respondent

JUDGE:

RARES J

DATE OF ORDER:

18 JANUARY 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Grants leave to the applicant to appeal against Order 1 made by the Federal Magistrates Court on 20 December 2007.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 40 OF 2008

BETWEEN:

SHANE DOWLING
Applicant

AND:

JOHN FAIRFAX PUBLICATIONS PTY LTD
Respondent

JUDGE:

RARES J

DATE OF ORDER:

18 JANUARY 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 26 OF 2008

BETWEEN:

SHANE DOWLING
Applicant

AND:

DAVID KIRK
First Respondent

LINDA PRICE
Second Respondent

CAROLYN BRADLEY
Third Respondent

SHIVCHAND JHINKU
Fourth Respondent

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

39 OF 2008

BETWEEN:

SHANE DOWLING
Applicant

AND:

DAVID KIRK
First Respondent

RON WALKER
Second Respondent

JULIA MARION KING
Third Respondent

ROGER CORBETT
Fourth Respondent

MARK BURROWS
Fifth Respondent

DAVID EVANS
Sixth Respondent

PETER YOUNG
Seventh Respondent

JOHN FAIRFAX
Eighth Respondent

NICHOLAS FAIRFAX
Ninth Respondent

GAIL HAMBLY
Tenth Respondent

LINDA PRICE
Eleventh Respondent

CAROLYN BRADLEY
Twelfth Respondent

KELLY DALY
Thirteenth Respondent

NATALIE CARRINGTON
Fourteenth Respondent

YEMEE FERNANDES
Fifteenth Respondent

KEVIN STOKES
Sixteenth Respondent

ROBERT WHITEHEAD
Seventeenth Respondent

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 40 OF 2008

BETWEEN:

SHANE DOWLING
Applicant

AND:

JOHN FAIRFAX PUBLICATIONS PTY LTD
Respondent

JUDGE:

RARES J

DATE:

18 JANUARY 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

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Details
AGLC
Dowling v Kirk [2008] FCA 165
Case
[2008] FCA 165
Decision Date

CaseChat Overview and Summary

Dowling sought leave to appeal from a decision of the Federal Magistrates Court, which had dismissed his application for various orders, including orders under sections 792, 793 and 807 of the Corporations Act 2001. Dowling also sought leave to appeal from an order made in contempt proceedings. Dowling had commenced directors and officers proceedings against four respondents, including Fairfax Media Limited, its Board of Directors, and two other directors. The Federal Magistrates Court had dismissed Dowling's claims in the directors and officers proceedings and found him in contempt of court. Dowling sought leave to appeal from these orders.

The primary legal issue for the court was whether Dowling had leave to appeal from the orders made by the Federal Magistrates Court. The court had to consider whether there was a reasonable possibility that the appeal would succeed, and whether the appeal was in the interests of justice. The court also had to consider whether there were any other factors that should be taken into account in deciding whether to grant leave to appeal.

The court found that there was no basis for granting leave to appeal from the orders made in the contempt proceedings, as there was no doubt as to the correctness of the decision. However, the court found that there was a reasonable possibility that the appeal would succeed in relation to the directors and officers proceedings. The court found that the Federal Magistrates Court had erred in law in dismissing Dowling's claims under sections 792, 793 and 807 of the Corporations Act 2001, and that the appeal was in the interests of justice. However, the court found that there were no orders made in the principal proceedings that could be the subject of an appeal, and that the application for leave to appeal from those proceedings should be dismissed.

The court dismissed the application for leave to appeal from the orders made in the contempt proceedings, but granted leave to appeal from Order 1 made by the Federal Magistrates Court on 20 December 2007 in the directors and officers proceedings. The court also dismissed the application for leave to appeal from the orders made in the principal proceedings.

Orders

Orders of the court

1. The application for leave to appeal is dismissed with costs.

1. Grants leave to the applicant to appeal against Order 1 made by the Federal Magistrates Court on 20 December 2007.

1. The application for leave to appeal is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

RARES J
There was some discussion that I should restrict the grant of leave to proceedings against the four respondents to the directors and officers proceedings referred to by his Honour in the judgment: Dowling v Kirk [2007] FMCA 2106 at [34]. This was based on a suggestion that Fairfax’s Board of Directors would have not been involved in or had knowledge of these allegations and matters or been party to them. The respondents argued that this involvement was so unlikely to be sustained that his Honour should have dismissed the claims in respect of s 793(1) in the directors and officers proceedings summarily. However, no doubt mindful of the effect of s 809, his Honour, declined to limit the continuation of those proceedings to those four persons, and I do not think that I should restrict the grant of leave for that reason. CONCLUSION ON S 793 Accordingly, in the directors and officers proceedings, I will grant leave to Mr Dowling to appeal against Order 1. The difficulty with the principal proceedings is that because Mr Dowling had not formally amended his application to raise claims under ss 792, 793 and 807 at the time his Honour heard the matter, no order was made dealing with those claims. Therefore, there being no order against Mr Dowling, there is nothing in those proceedings within the appellate jurisdiction of this court which could attract a grant of leave. Doubtless, observations which the Full Court may make on the construction of the Act will be of relevance in the determination of the application for amendment in the principal proceedings.THE CONTEMPT PROCEEDINGS The third matter in respect of which a grant of leave to appeal is sought are the contempt proceedings. In those proceedings, for the reasons given by his Honour, I am of opinion that there is no basis to consider that the correctness of his decision is attended by any doubt. Those proceedings involved a claim by Mr Dowling that his Honour should have referred conduct of three employees and a solicitor for his principal protagonist, Fairfax, to the Director of Public Prosecutions for the laying of criminal charges. During the course of argument before me, Mr Dowling appeared to concede that he may not have been able to obtain an order that the Federal Magistrates Court refer persons to the Director of Public Prosecutions for the laying of criminal charges. The grounds of the application in the contempt proceedings pleaded that all four respondents had been involved in the drafting of a document shortly after Mr Dowling’s employment had been terminated, but also after he had commenced proceedings in the Industrial Relations Commission of New South Wales concerning his termination. He asserted that the document had been drafted with the intent of perverting the course of justice, that there was an attempt to pervert the course of justice and a conspiracy to pervert the course of justice. He asserted that the persons who drafted it were guilty of perjury. He asserted that one of the respondents, the solicitor, had fraudulently signed a court document impersonating a Fairfax employee. His Honour noted in the case of the solicitor, that there was also an allegation that by signing a notice of appearance in the Australian Industrial Relations Commission, the solicitor committed a fraud.

Ratio Decidendi

Legal Principle Established

Established by: RARES J

Full text does not contain this section.