Dowling v Kirk and 3 Ors

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

1. 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

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 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.

2. 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).

3. 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. 

4. 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…