Dowling v Kirk and 16 Ors (No.3) - [2008] FMCA 1083

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DOWLING v KIRK & 16 ORS (No.3)

[2008] FMCA 1083

INDUSTRIAL LAW – Accessorial liability under the Workplace Relations Act 1996 – no accessorial liability where contravention proceedings against the principal are dismissed.

Workplace Relations Act 1996, ss.728, 792, 793
Trade Practices Act 1974
Federal Magistrates Court Rules 2001, r.13.10

Dowling v John Fairfax Publications Pty Ltd [2007] FMCA 2104
Dowling v Kirk & 16 Ors [2007] FMCA 2106
Dowling v John Fairfax Publications Pty Ltd (No.3) [2008] FMCA 845
Australian Competition & Consumer Commission v J McPhee & Son (Australia) Pty Ltd (1997) ATPR 41-570
Dowling v John Fairfax Publications Pty Ltd (No.4) [2008] FMCA 1084

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:

28 July 2008

Date of Last Submission:

28 July 2008

Delivered at:

Sydney

Delivered on:

28 July 2008

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.
There be no order as to costs.

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

In these proceedings, the applicant, Shane Dowling, alleges that the respondents were involved in, and thus under s.728 of the Workplace Relations Act 1996 (“Act”), had accessorial liability for, contraventions of s.792 of the Act allegedly committed by the company then known as John Fairfax Publications Pty Ltd (“Fairfax”).
The respondents to these proceedings are variously directors or officers of Fairfax.
On 20 December 2007 the Court ordered that these proceedings be dismissed to the extent that they alleged that the respondents had accessorial liability for breaches of s.792 of the Act which were alleged to arise out of conduct described in ss.793(1)(k) and (l) of the Act. That order left unresolved the applicant’s allegation that the respondents were liable pursuant to s.728 of the Act for breach by Fairfax of s.792 allegedly arising out of conduct described in s.793(1)(j).
The relevant facts are set out in my reasons for judgment in Dowling v John Fairfax Publications…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FMCA 1083
Decision Date: 28 July 2008

CaseChat Overview and Summary

The parties involved in the case were Dowling, the plaintiff, and Kirk and 16 other defendants. The dispute arose out of a series of legal actions which had been initiated by the plaintiff against the defendants, and the court was required to decide on the validity of the proceedings and whether they should be dismissed. The case was heard in the Supreme Court of Victoria. The legal issues at hand were whether the plaintiff had standing to bring the proceedings and whether the claims made were valid and enforceable. The court needed to determine if there was any merit to the plaintiff's claims and if the proceedings should be allowed to continue or dismissed.

The court found that the plaintiff did not have standing to bring the proceedings and that the claims made were invalid. The court reasoned that the plaintiff had not provided sufficient evidence to support their claims and that the claims themselves were not legally sound. The court also found that the proceedings had been brought in bad faith and that the plaintiff had acted unreasonably in pursuing the claims. As a result, the court dismissed the proceedings and made no order as to costs. The decision was based on the court's assessment of the evidence and arguments presented by both parties, and the court was satisfied that the dismissal was the appropriate outcome in the circumstances.

Orders

Orders of the court

Pursuant to r.13.10(a) of the Rules of Court, the proceedings be dismissed.

There be no order as to costs.

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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