Dowling v Kirk and 16 Ors (No.3)
[2008] FMCA 1083
•28 July 2008
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 Pty Ltd [2007] FMCA 2104 at [9] – [13] and Dowling v Kirk & 16 Ors [2007] FMCA 2106 at [11] – [18], especially [13] which says:
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. 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 (whom he describes as “CEO – Fairfax Media”) 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.1, affidavit filed 3 September 2007);
(b)Mr Dowling says that on 7 May 2007 he walked out of a meeting with Natalie Carrington, Yemee Fernandes and Luke Osborn saying that he would “be getting WorkCover involved” (para.2, affidavit filed 3 September 2007);
(c)Mr Dowling also says that the following day, after receiving a warning letter, he spoke to Linda 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.3, affidavit filed 3 September 2007);
(d)Mr Dowling says he was dismissed in the way that he was because “they did not want to give me time to make a complaint outside the company” (para.4, affidavit filed 3 September 2007);
(e) Mr Dowling says:
When I made the complaint to David Kirk, as a director, he would have informed the Board of Directors. This leads me to believe they are the ones who ultimately directed my termination. (para.5, affidavit filed 3 September 2007);
(f) Mr Dowling also says:
The Directors obviously had a huge incentive to have me terminated in an attempt to hide their breach of duties from a OH&S viewpoint. (para.6, affidavit filed 3 September 2007).
On 26 June 2008 I refused Mr Dowling’s notice of motion to amend his application in the Fairfax proceedings to add an allegation that the termination of his employment by Fairfax was unlawful and in breach of s.792 because it was for reasons prohibited by s.793(1)(j) and (k). As far as these proceedings are concerned, I had concluded in my judgment of 20 December 2007 that Mr Dowling had no reasonable prospects of successfully prosecuting a claim against the respondents to these proceedings, based on conduct prohibited by s.793(1)(k) and (l).
As already noted, the issue remaining for consideration following the earlier judgment in these proceedings is whether the respondents have accessorial liability for conduct of Fairfax which was in breach of s.792 of the Act because it was for reasons prohibited by s.793(1)(j).
The reason I refused Mr Dowling’s notice of motion to amend his application in the Fairfax proceedings to raise issues related to s.793(1)(j) and (k) was that I concluded that such an amendment would be futile as it had no reasonable prospects of success were it to be allowed. The reasons for that decision can be found in Dowling v John Fairfax Publications Pty Ltd (No.3) [2008] FMCA 845.
In my reasons for judgment in this matter on 20 December 2007 I discussed accessorial liability under the Act and its similarity with the same concept in the Trade Practices Act 1974. In this case any liability which the respondents might have is dependent on Fairfax having contravened the Act. In support of this proposition, the respondents have referred to a number of cases of which I need only refer to one, Australian Competition & Consumer Commission v J McPhee & Son (Australia) Pty Ltd (1997) ATPR 41-570, a decision of Heery J on 19 May 1997 where his Honour considered the Trade Practices Act accessorial liability provision. His Honour said:
The ACCC cannot fall back on an amendment which would simply delete the reference to “or attempt to contravene”. The ordinary rule of the criminal law is that a person cannot be convicted of aiding and abetting an offence unless that offence has been committed: Walsh v Sainsbury (1925) 36 CLR 464 at 477, Cain v Doyle (1946) 72 CLR 409 at 417. I do not think the contrary is reasonably arguable. (at [43,922])
As the applicant’s case against Fairfax alleging such contravention has already been dismissed, there can, therefore, be no finding of any contravention in which these respondents may have been involved. These proceedings must be dismissed.
As to the question of costs, the respondents have sought costs under the Act. For the reasons given today in the related matter of Dowling v John Fairfax Publications Pty Ltd (No.4) [2008] FMCA 1084, I do not consider that costs should be awarded in these proceedings. In summary, I am not of the view that the claim in respect of alleged breaches of s.792 of the Act was brought vexatiously or without reasonable cause.
Finally, Mr Dowling again today invited me to disqualify myself. The first basis for this arose out of my response to a question today whether I know any of the respondents. In response to the question I closely reviewed the list of respondents and it occurred to me that I may have met the fifth respondent in the past, if indeed the fifth respondent is the person I am thinking of. While on the bench during submissions I recalled, and disclosed, being introduced to a Mr Burrows in a social setting at the home of a now-deceased relative of his which I now estimate was several years ago and that I considered investing through his company some years ago but did not. Since coming off the bench it occurs to me that I may have met the same Mr Burrows at lunch in the city when I was in practice but my recollection is not clear. In any event, I am not of the view that such circumstances would require or justify me disqualifying myself from determining this matter.
The second basis on which Mr Dowling suggested that I should disqualify myself was that I had already made my mind up because of the decision I had reached in the principal proceedings. Although the proceedings are intimately related, the issue of accessorial liability is determined by the result in the principal proceedings. The reasoning employed there does not determine the outcome of these proceedings. Consequently, there is no reason for me to accede to Mr Dowling’s request on this aspect of the matter.
Conclusion
For all these reasons, these proceedings have no reasonable prospects of success and will be dismissed pursuant to r.13.10(a) of the Federal Magistrates Court Rules 2001.
There will be no order as to costs.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 1 August 2008
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