Dowling v Kirk & 16 Ors

Case [2007] FMCA 2106

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DOWLING v KIRK & 16 ORS [2007] FMCA 2106

INDUSTRIAL LAW – Accessorial liability – applicable test.

PRACTICE AND PROCEDURE – No reasonable prospects of success – summary dismissal application.
Workplace Relations Act 1996, ss.4, 659, 728, 779, 792, 793, 809
Federal Magistrates Act 1999, s.17A
Trade Practices Act 1974, s.75B
Federal Magistrates Court Rules 2001, r.13.10
Dowling v John Fairfax Publications Pty Limited [2007] FMCA 2014
Yorke v Lucas (1985) 158 CLR 661
Australian Competition & Consumer Commission v Giraffe World AustraliaPty Ltd (1999) 95 FCR 302
Rural Press Ltd v Australian Competition & Consumer Commission (2002) 118 FCR 236
Heydon v NRMA Ltd (2000) 51 NSWLR 1
Australian Competition & Consumer Commission v IMB Group Pty Ltd [2003] FCAFC 17
Applicant: SHANE DOWLING
First Respondent: DAVID KIRK
Second Respondent: RON WALKER
Third Respondent: JULIA MARION KING
Fourth Respondent: ROGER CORBETT
Fifth Respondent: MARK BURROWS
Sixth Respondent: DAVID EVANS
Seventh Respondent: PETER YOUNG
Eighth Respondent: JOHN FAIRFAX
Ninth Respondent: NICHOLAS FAIRFAX
Tenth Respondent: GAIL HAMBLY
Eleventh Respondent: LINDA PRICE
Twelfth Respondent: CAROLYN BRADLEY
Thirteenth Respondent: KELLY DALY
Fourteenth Respondent: NATALIE CARRINGTON
Fifteenth Respondent: YEMEE FERNANDES
Sixteenth Respondent: KEVIN STOKES
Seventeenth Respondent: ROBERT WHITEHEAD
File Number: SYG 2704 of 2007
Judgment of: Cameron FM
Hearing date: 25 October 2007
Date of Last Submission: 25 October 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

  1. Pursuant to r.13.10(a) of the Rules of Court, the proceedings be dismissed to the extent that they allege that the respondents are liable pursuant to s.728 of the Workplace Relations Act 1996 for breaches of s.792 of that Act which are alleged to arise out of conduct described in ss.793(1)(k) and 793(1)(l) of that Act.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2704 of 2007

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

REASONS FOR JUDGMENT

Introduction

  1. Shane Dowling, the applicant in these proceedings, has brought three sets of proceedings arising out of the termination of his employment with John Fairfax Publications Pty Limited (“Fairfax”). In proceedings SYG 2671 of 2007 (“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 those proceedings Mr Dowling has also filed a Notice of Motion 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…

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AGLC
Dowling v Kirk & 16 Ors [2007] FMCA 2106
Case
[2007] FMCA 2106
Decision Date

CaseChat Overview and Summary

Dowling brought an action against Kirk and sixteen other defendants, seeking damages for breach of workplace laws. Dowling alleged that the defendants, who were directors and employees of a company, were vicariously liable for breaches of the Workplace Relations Act 1996. The defendants moved for the case to be dismissed, arguing that there were no reasonable prospects that Dowling could succeed in his claim against them for accessory liability. The central issue before the court was whether Dowling's claims against the defendants for accessory liability had any reasonable prospect of success. Dowling contended that the defendants, by virtue of their positions as directors and employees, could be held vicariously liable for the company's breaches of workplace laws. The defendants, on the other hand, argued that the claims against them lacked merit and should be dismissed as they had no reasonable prospect of success.

The court considered the applicable legal tests for accessory liability and examined the evidence provided. It was established that to hold someone vicariously liable, the plaintiff must demonstrate a sufficient connection between the defendant's role and the wrongful act. The court found that Dowling's claims did not satisfy the necessary criteria to establish accessory liability. The evidence presented did not show that the defendants had any direct involvement or control over the alleged breaches, nor was there a close connection between their roles and the actions that gave rise to the claims. Consequently, the court concluded that there were no reasonable prospects of success for Dowling's claims against the defendants for accessory liability. Accordingly, the proceedings were dismissed as per the relevant rules of court.

Orders

Orders of the court

1.

Pursuant to r.13.10(a) of the Rules of Court, the proceedings be dismissed to the extent that they allege that the respondents are liable pursuant to s.728 of the Workplace Relations Act 1996 for breaches of s.792 of that Act which are alleged to arise out of conduct described in ss.793(1)(k) and 793(1)(l) of that Act.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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