Dowling v Kirk and 3 Ors
[2007] FMCA 2105
•20 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DOWLING v KIRK & 3 ORS | [2007] FMCA 2105 |
| PRACTICE AND PROCEDURE – Conduct alleged does not amount to contempt of the Federal Magistrates Court – Court has no role to give directions to the Director of Public Prosecutions – Federal Magistrates Court has no general criminal jurisdiction – allegations of perjury misconceived. |
| Workplace Relations Act 1996, ss.659, 728, 792, 793 Federal Magistrates Act 1999, ss.10, 17, 17A Federal Magistrates Court Rules 2001, r.13.10 |
| Dowling v John Fairfax Publications Pty Limited [2007] FMCA 2104 |
| Applicant: | SHANE DOWLING |
| First Respondent: | DAVID KIRK |
| Second Respondent: | LINDA PRICE |
| Third Respondent: | CAROLYN BRADLEY |
| Fourth Respondent: | SHIVCHAND JHINKU |
| File Number: | SYG 2703 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
Pursuant to r.13.10(a) of the Rules of Court, the proceedings be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2703 of 2007
| SHANE DOWLING |
Applicant
And
| DAVID KIRK |
First Respondent
| LINDA PRICE |
Second Respondent
| CAROLYN BRADLEY |
Third Respondent
| SHIVCHAND JHINKU |
Fourth Respondent
REASONS FOR JUDGMENT
Introduction
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 also to add seventeen additional parties, apparently directors or officers of Fairfax, as respondents in those proceedings, however, he no longer seeks to do so.
In matter SYG 2704 of 2007 (“directors and officers proceedings”) Mr Dowling has commenced proceedings against the individuals he had previously sought to join in the principal proceedings. In the directors and officers proceedings Mr Dowling seeks financial compensation and a published apology on the basis of alleged accessorial liability under s.728 of the Act. This is related to Fairfax’s alleged breach of s.792 of the Act and is said to arise out of conduct described in s.793(1)(j), (k) and (l).
In these proceedings (“contempt proceedings”) Mr Dowling seeks orders in respect of three employees of Fairfax and one of its solicitors to the effect that certain aspects of their conduct associated with, or subsequent to, the termination of his employment with Fairfax be referred to the Director of Public Prosecutions for the laying of criminal charges.
The respondents have sought dismissal of their respective proceedings pursuant to s.17A of the Federal Magistrates Act 1999 and r.13.10 of the Rules of Court on the basis that Mr Dowling has no reasonable prospects of success in any of them. In relation to these proceedings, it was also submitted that they should be summarily dismissed on the basis that they are misconceived, they fail to comply with the strict requirements of the Rules of Court and because they are an abuse of process.
On 28 September 2007 it was ordered that each of the matters be listed for hearing on 25 October 2007 for hearing of the respondents’ applications.
For the reasons which follow, these proceedings will be dismissed as I am satisfied that they are misconceived and have no reasonable prospects of success.
Background
The relevant background facts are set out in my reasons for judgment in the principal proceedings: Dowling v John Fairfax Publications Pty Limited [2007] FMCA 2104.
The principal proceedings had been commenced in the Federal Court. On 20 August 2007, after hearing some argument on the parties’ motions in those proceedings (to amend and add parties and to dismiss summarily), Gyles J transferred the principal proceedings to this Court.
These proceedings were commenced on 3 September 2007.
No reasonable prospects of success
To succeed on their current application, the respondents must demonstrate that these proceedings have no reasonable prospects of success. As to the proper principles to apply, I refer to paragraphs [14] to [24] of my reasons for judgment in the principal proceedings.
Mr Dowling’s claims
Mr Dowling seeks orders that the matters set out in the grounds of the application be referred to the Director of Public Prosecutions “for criminal charges to be initiated against the respondents”.
The grounds of the application were pleaded in the following terms:
1. All four respondents have been involved in the drafting of a document with the intent of perverting the course of justice which is attempting to pervert the course of justice and conspiracy to pervert the course of justice.
2. All four respondents are guilty of perjury for drafting a fraudulent document that they knew would be used in court proceedings.
3.[The fourth-named respondent] has fraudulently signed a court document impersonating a Fairfax employee when in fact he is a solicitor working for Freehills. He has also committed purjury [sic] in that same document.
In these proceedings Mr Dowling has filed two affidavits, one sworn or affirmed on 3 September 2007 and one sworn on 24 September 2007.
In the first affidavit Mr Dowling deposes to having received an email to which was attached a document a copy of which he has annexed to his affidavit. The document appears to be a report dated 6 June 2007 prepared by Linda Price and Carolyn Bradley for David Kirk in respect of an investigation into Mr Dowling’s complaint of “Bullying, intimidation and bastardization that is being conducted by senior management at Fairfax Media”. In the principal proceedings, Mr Dowling identifies Ms Price as “Group HR Director”, Ms Bradley as “HR Director – Corporate Services” and Mr Kirk as “CEO”. The report annexed to Mr Dowling’s affidavit identifies what appear to be amendments, including additions and deletions, made during the preparation of the document. It appears that changes made during the drafting of the document had been tracked.
Also annexed to the first affidavit is what appears to be a copy of the signed Notice of the Employer’s Appearance filed by Fairfax in the Australian Industrial Relations Commission (“AIRC”) and dated 13 June 2007.
In his affidavit sworn 24 September 2007 another copy of the report dated 6 June 2007 is annexed, together with an email under cover of which Ms Price had sent it to Mr Dowling. Also annexed is a search of the Law Society of New South Wales website recording that the fourth-named respondent is admitted to practise as a solicitor in New South Wales. Mr Dowling also deposes to having phoned Fairfax to speak to the fourth-named respondent and was advised that he worked at Freehills, only working at the Fairfax premises on Mondays and Wednesdays.
Mr Dowling asserts that the report dated 6 June 2007 is a fraudulent document and that the fourth-named respondent, in signing Fairfax’s notice of appearance in the AIRC, did so fraudulently and committed perjury as a consequence.
The respondents’ application
The respondents have described these proceedings in the following terms:
On 3 September 2007, the Applicant commenced proceedings against four individual respondents in the Court for contempt (“the Contempt Application”) (para.94, respondent’s written submissions)
although it is not possible properly to characterize them as contempt proceedings.
The respondents observe, correctly, that the claim raises no issues of contempt which can be dealt with by this Court. The Court’s powers in respect of contempt of court are set out in s.17 of the Federal Magistrates Act 1999 in the following terms:
(1) The Federal Magistrates Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
(2) Subsection (1) has effect subject to any other Act.
(3) The jurisdiction of the Federal Magistrates Court to punish a contempt of the Federal Magistrates Court committed in the face or hearing of the Federal Magistrates Court may be exercised by the Federal Magistrates Court as constituted at the time of the contempt.
The respondents submit that the matters set out in the application and in the affidavit of 3 September 2007 raise no issue with respect to proceedings in this Court, being solely concerned with the AIRC proceedings.
The respondents further submit that the orders sought by Mr Dowling that the matters be referred to the Director of Public Prosecutions do not clearly identify whether he is seeking an order that the Court deal with charges of contempt or something else, submitting that the Court has no jurisdiction to require the Commonwealth Director of Public Prosecutions to take any particular action.
Consideration
The first allegation made by Mr Dowling in his application is that the report dated 6 June 2007 was drafted with the intent of perverting the course of justice and also evidences a conspiracy to pervert the course of justice. However, it was Mr Dowling who put the document before the Court, not the respondents. He has led no evidence to support a conclusion that the report had any purpose other than to document the internal inquiry undertaken in relation to his dismissal. Most particularly, he has not put any evidence before the Court to support the allegation that the document was drafted for the purposes of use in legal proceedings and that its authors knowingly included incorrect or misleading information in it. Nor has he put anything before the Court to suggest that the respondents colluded or conspired in such conduct. The fact that a document has gone through a number of revisions, and that a number of authors have participated in the editing process, does not, without more, logically support the sort of serious accusation which Mr Dowling makes in these proceedings.
The second allegation made by Mr Dowling is that the respondents knew that the document in question would be used in court proceedings. He has put no evidence before the Court to support that allegation. As noted above, it was Mr Dowling who put the document before the Court, not the respondents, and the mere existence of the document after apparently careful editing does mean anything more than that it is a carefully edited document. Mr Dowling speculates as to its intended use but provides no evidentiary support for his speculations.
In the second and third allegations Mr Dowling accuses the respondents of perjury. These allegations misunderstand the nature of perjury and as a consequence cannot be made out.
More generally, the application is misconceived because it seeks relief which this Court cannot supply. First, if the claim to have the respondents referred to the Director of Public Prosecutions is based on some form of contempt of court, it has to be observed that none of the conduct alleged by Mr Dowling, even were it to be proved, would amount to a contempt of this Court. Even the notice of appearance in the AIRC, to the extent that this is asserted to be a contempt, were it to be a contempt of anything it would be a contempt of the AIRC. It is not a contempt of the power and authority of this Court: s.17(1) Federal Magistrates Act.
Second, it is not the role or function of the Court to give directions to the Director of Public Prosecutions. The jurisdiction of the Court is found in s.10 of the Federal Magistrates Act 1999 and in the various Acts which confer jurisdiction on the Court. Mr Dowling has not taken me to any statute which provides the Court with the power to do what he seeks which, in any event, would be logically anomalous. If prosecutions are to be pursued, they are to be brought to a court by an individual or a governmental prosecuting authority; they are not to be pre-judged by a court, forwarded to the prosecutors, only to be brought back to the courts for trial.
Should Mr Dowling’s application be something in the nature of a private prosecution, then it cannot be entertained in this Court which has no general criminal jurisdiction. For the reasons already given, no contempt of this Court is suggested by the evidence.
Conclusion
The application in these proceedings is misconceived and has no reasonable prospects of success.
Consequently, it will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 20 December 2007
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