FEDERAL COURT OF AUSTRALIA

Transcription

1 FEDERAL COURT OF AUSTRALIA Dowling v John Fairfax Publications Pty Limited [2007] FCA 1315 Workplace Relations Act 1996 (Cth) SHANE DOWLING v JOHN FAIRFAX PUBLICATIONS PTY LIMITED NSD 1221 OF 2007 GYLES J 20 AUGUST 2007 SYDNEY

2 NO QUESTION OF PRINCIPLE IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1221 OF 2007 BETWEEN: AND: SHANE DOWLING Applicant JOHN FAIRFAX PUBLICATIONS PTY LIMITED Respondent JUDGE: GYLES J DATE OF ORDER: 20 AUGUST 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Matter No NSD 1221 of 2007, Shane Dowling v John Fairfax Publications Pty Limited (including both motions), be transferred to the Federal Magistrates Court. 2. The costs of today be reserved for consideration by the Federal Magistrates Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

3 NO QUESTION OF PRINCIPLE IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1221 OF 2007 BETWEEN: AND: SHANE DOWLING Applicant JOHN FAIRFAX PUBLICATIONS PTY LIMITED Respondent JUDGE: GYLES J DATE: 20 AUGUST 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This matter, which has been commenced under the Workplace Relations Act 1996 (Cth), is the subject of two notices of motion. The first is the present respondent s notice of motion to summarily dismiss the application. The other is a motion by the applicant to add a further ground for relief and also to add a number of other parties as respondents. 2 Despite some initial hesitation, the applicant on the last occasion indicated that he favoured a transfer of this matter to the Federal Magistrates Court, this Court having raised that possibility when the matter was first before it. 3 I did not, however, accede to that request, even though in my view the matter is, generally speaking, appropriate to be transferred to that Court. I did not take that course without having an opportunity of at least looking at the notices of motion and what lay behind them. I have received and heard some very helpful submissions on the part of counsel for the respondent on both notices of motion. There is, no doubt, a good deal of substance in those submissions, they being essentially jurisdictional-type arguments. However, neither of them is so absolutely clear that it can be acceded to without having a closer look at the matter. 4 In this case, such examination is best done by the Federal Magistrates Court because it would be the court which, in my opinion, should hear the case, if it is to be heard at all. In saying this, I do not wish to suggest that there is a sufficient case made by the applicant on

4 - 2 - either basis to justify either maintenance of the proceeding or allowance of the motion for amendment. I simply have not looked at the matter with that in mind and I certainly do not wish to encourage the thought that the case should proceed. On the other hand, I am not satisfied that merely looking at the face of it is sufficient to dismiss the proceeding. The consequences of a threat to involve WorkCover is the matter that requires closer examination and it may be that, when it is looked at a little more closely for the purposes of summary dismissal and amendment, the respondent s position will prevail. That, however, is not a judgment that I can make today. 5 It follows, therefore, that the question of costs should also be dealt with by the Federal Magistrates Court. I order that the matter of Shane Dowling v John Fairfax Publications Pty Limited, NSD 1221 of 2007, be transferred to the Federal Magistrates Court. That includes both motions. The costs of today are reserved for consideration by that Court. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 24 August 2007 The Applicant appeared in person Counsel for the Respondent: Solicitor for the Respondent: Ms K Eastman Freehills Date of Hearing: 20 August 2007 Date of Judgment: 20 August 2007

5 FEDERAL COURT OF AUSTRALIA Dowling v Fairfax Media Publications Pty Ltd (formerly John Fairfax Publications Pty Ltd) [2008] FCA 1114 CORRIGENDUM SHANE DOWLING v FAIRFAX MEDIA PUBLICATIONS PTY LTD (FORMERLY JOHN FAIRFAX PUBLICATIONS PTY LTD) NSD 1031 OF 2008 BUCHANAN J 29 JULY 2008 (CORRIGENDUM 30 JULY 2008) SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1031 OF 2008 BETWEEN: SHANE DOWLING Applicant

6 - 2 - AND: FAIRFAX MEDIA PUBLICATIONS PTY LTD (FORMERLY JOHN FAIRFAX PUBLICATIONS PTY LTD) Respondent JUDGE: BUCHANAN J DATE OF ORDER: 29 JULY 2008 WHERE MADE: SYDNEY CORRIGENDUM 1. On page 6, para 19, line 6, replace the words joint sentences with the words jail sentences. 2. On page 6, para 21, line 7, after it will be a matter for the Full Court insert or Judge who hears the appeal before to decide. I certify that the preceding (2) two paragraphs are a true copy of the Corrigendum to the Reasons for Judgment of the Honourable Justice Buchanan. Associate: Dated: 30 July 2008

7 - 3 - FEDERAL COURT OF AUSTRALIA Dowling v Fairfax Media Publications Pty Ltd (formerly John Fairfax Publications Pty Ltd) [2008] FCA 1114 APPEAL leave to appeal leave to amend proceedings refused at first instance and proceedings dismissed construction of statutory provisions error of construction sufficiently arguable that leave to appeal should be granted. Workplace Relations Act 1996 (Cth) s 793(1)(j), s 793(1)(k) Australian Meat Industry Employees Union v Belandra Pty Limited [2003] FCA 910; 126 IR 165 Bucknell, Ex parte (1936) 56 CLR 221 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Dowling v John Fairfax Publications Pty Ltd [2007] FMCA 2104; 169 IR 201 Dowling v Kirk [2008] FCA 165; 171 IR 342 Dowling v John Fairfax Publications Pty Ltd (No 3) [2008] FMCA 845 Yap v Granich and Associates [2001] FCA 1735 SHANE DOWLING v FAIRFAX MEDIA PUBLICATIONS PTY LTD (FORMERLY JOHN FAIRFAX PUBLICATIONS PTY LTD) NSD 1031 OF 2008 BUCHANAN J 29 JULY 2008

8 SYDNEY - 4 -

9 GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1031 OF 2008 BETWEEN: AND: SHANE DOWLING Applicant FAIRFAX MEDIA PUBLICATIONS PTY LTD (FORMERLY JOHN FAIRFAX PUBLICATIONS PTY LTD) Respondent JUDGE: BUCHANAN J DATE OF ORDER: 29 JULY 2008 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Leave is granted to appeal the decision and orders of the Federal Magistrates Court of Australia in Dowling v John Fairfax Publications Pty Ltd (No 3) [2008] FMCA 845 to the extent that the applicant was refused leave to amend his application before that Court to rely on s 793(1)(j) and (k) of the Workplace Relations Act 1996 (Cth) (Order 1) and to the extent that, as a consequence, his application before that Court was dismissed (Order 2). 2. The hearing of the appeal be expedited. 3. Costs of the application for leave to appeal are to be costs in the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

10 GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1031 OF 2008 BETWEEN: AND: SHANE DOWLING Applicant FAIRFAX MEDIA PUBLICATIONS PTY LTD (FORMERLY JOHN FAIRFAX PUBLICATIONS PTY LTD) Respondent JUDGE: BUCHANAN J DATE: 29 JULY 2008 PLACE: SYDNEY BUCHANAN J: REASONS FOR JUDGMENT 1 The applicant, Mr Dowling, was employed by the respondent ( Fairfax ). He was dismissed. He brought proceedings seeking reinstatement under the Workplace Relations Act 1996 (Cth) ( the Act ). Those proceedings were transferred to the Federal Magistrates Court of Australia ( the FMCA ). 2 During the course of the proceedings, Mr Dowling proposed to amend his application to invoke the prohibition in the Act that an employee must not be dismissed for reasons identified in s 793(1)(j) and (k) of the Act, namely that the employee: (j) (k) has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek: (i) compliance with that law; or (ii) the observance of a person s rights under an industrial instrument; or has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; 3 The foundation for the proposed amendment was Mr Dowling s contention that he was dismissed (or should be presumed to have been dismissed) because he had threatened to

11 - 2 - refer certain issues to the Workcover Authority of New South Wales ( Workcover ) and expressed a view that he could obtain a court order stopping Fairfax from sacking him. 4 Fairfax brought a notice of motion relying on s 17A of the Federal Magistrates Act 1999 (Cth) that the proceedings be dismissed on the basis they had no reasonable prospects of success. On 20 December 2007, the FMCA ordered that the proceedings be dismissed insofar as they relied upon other provisions of the Act (s 659) but reserved consideration of Mr Dowling s application to amend the proceedings to rely upon s 793(1)(j) and (k) of the Act (Dowling v John Fairfax Publications Pty Ltd [2007] FMCA 2104; 169 IR 201). On 18 January 2008, an application for leave to appeal against the decision to dismiss so much of the proceedings as relied upon s 659 of the Act was refused (Dowling v Kirk [2008] FCA 165; 171 IR 342) although it was not necessary, or indeed possible, to give consideration to any matter arising from Mr Dowling s foreshadowed amendment to the proceedings because the FMCA had not yet ruled upon it. 5 On 26 June 2008, in the judgment in respect of which the present application for leave to appeal is brought, the FMCA refused to permit the amendment of the proceedings as sought by Mr Dowling. The FMCA concluded that the proposed amendments would have no reasonable prospects of success and it would therefore be futile to grant leave to amend the application in the manner sought (Dowling v John Fairfax Publications Pty Ltd (No 3) [2008] FMCA 845). There being no other foundation for the proceedings (they earlier having been dismissed insofar as they sought to invoke s 659 of the Act), the proceedings as a whole were then dismissed. 6 The orders which give rise to the present application for leave to appeal were interlocutory in nature and leave to appeal is therefore required as Mr Dowling appears to have correctly appreciated. The test whether leave to appeal should be granted is that set out in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 namely: whether the decision at first instance was attended with sufficient doubt to warrant its being reconsidered and whether substantial injustice would result if leave were refused, supposing the decision at first instance was wrong.

12 - 3-7 The decision which is challenged, although interlocutory in nature, effectively represents a final disposition of Mr Dowling s application for reinstatement. That circumstance generally operates in favour of the grant of leave unless it may nevertheless be concluded that there are such insufficient prospects of success that the grant of leave to appeal would be of no real utility (see Ex parte Bucknell (1936) 56 CLR 221 at 225-6; see also Yap v Granich and Associates [2001] FCA 1735). 8 The FMCA refused leave to Mr Dowling to amend the proceedings because it concluded the claim he wished to pursue depended upon a construction of s 793(1)(j) of the Act that was not consistent with the general purpose and policy of s 793 or Part 16 of the Act (that required that there be some infringement of freedom of association ), that Workcover was not a person or body referred to in s 793(1)(j) of the Act and because Mr Dowling s assertion that he foreshadowed making a complaint to Workcover was not a proposal to participate in a proceedings under an industrial law within the meaning of s 793(1)(k). 9 In its discussions of the origins of, and reasons for, s 793(1)(j) the FMCA referred to the judgment of North J in Australian Meat Industry Employees Union v Belandra Pty Limited [2003] FCA 910; 126 IR 165. There North J discussed, amongst other provisions, s 298L(1)(i) of an earlier version of the Act (which is now s 793(1)(j)). His Honour observed (at [146]) that s 298(1)(i) differed from the other subsections of s 298L(1) many of which were connected with a person s membership of the union (see [143]). His Honour said (at [146]): It was a convenient drafting approach to express s 298L(1)(i) in terms which included union members, but went beyond that group. 10 His Honour went on to say (at [150]): It follows from the history of s 298L(1) that Parliament intended s 298L(1)(a) to cover conduct taken against employees because they had taken action as members of a union, and because a union had taken action as an incident of that employee s membership of a union. It did not intend to limit s 298L(1)(a) by reference to ss 298L(1)(f), (g) (i) and (n). Rather, those subsections duplicated, in part, the provision of s 298L(1)(a) for specific historical reasons concerning the introduction of each of those subsections.

13 It seems to me to be arguable that the analysis by North J might support a construction of s 793(1)(j) which is not as confined as the decision of the FMCA found. I do not mean to suggest thereby that the decision was wrong, only that room may remain for the legitimate exploration of the issue on an appeal. 12 The further conclusion that Workcover was not a person or body referred to in s 793(1)(j) was accompanied by a finding that a person or body there referred to is an industrial association or an associated individual (see at [42]-[43] of Dowling v John Fairfax Publications Pty Ltd (No 3)). In my view, the proposition and the accompanying reason is not incontestable and I think it would be unfair to deny Mr Dowling an opportunity to challenge that part of the decision of the FMCA. 13 Mr Barton, who appeared for Fairfax on the present application, drew my attention to the definition of industrial law in s 779 of the Act and to an argument advanced to the FMCA that Workcover had no role in seeking compliance with any law falling within this definition. This is an argument which was examined in the earlier decision of 20 December 2007 (Dowling v John Fairfax Publications Pty Ltd [2007] FMCA 2104; 169 IR 201 at [55] to [65]) but it was not rejected. The FMCA said, to the contrary (at [59]): To the extent that s 779 refers to laws however designated which regulate the relationships between employers and employees it admits of an argument that occupational health and safety laws, at least when they deal with victimisation of employees, may be industrial laws because they deal with an aspect of the relationship between employers and employees. and with respect to the power of Workcover to issue improvement notices (at [64]): it is arguable that such provisions amount to a capacity on the part of WorkCover to seek compliance with the Occupational Health and Safety Act 2000 (NSW). 14 There was no further discussion about this argument in the decision which Mr Dowling wishes to challenge. The argument may be correct. It may represent an independent reason why any proposed complaint to Workcover could not sustain any reliance upon s 793(1)(j) but it does not provide a basis for refusing leave to appeal. Mr Dowling wishes to challenge the reasons which were given for refusing him leave to rely on s 793(1)(j) and in my view leave to do so should be given. If Fairfax wishes to argue that, for other

14 - 5 - reasons, reliance on s 793(1)(j) is unavailable that may be raised in some appropriate fashion for consideration on the appeal (e.g. by a notice of contention). 15 The reason why Mr Dowling was refused leave by the FMCA to amend his application to rely upon s 793(1)(k) of the Act was because assertions made in an affidavit sworn by him on 7 August 2007 should be understood to refer to his proposal to make a complaint to Workcover. The statement in question was: on the 8 th of May at about 4pm I was given a warning letter. I phoned and left a message for Linda Price. She called me back at about 6pm, I complained about the warning letter to her. I said words to the effect They are threatening to sack me and believe 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. 16 Mr Dowling wishes to contend that his statement referred to two possibilities: taking out a court order and making a complaint to Workcover. He also wishes to argue that his reference to a court order was a sufficient indication that he proposed to participate in a proceeding under an industrial law within the meaning of s 793(1)(k) of the Act. In my view it is clearly arguable that the FMCA misconstrued the statement in question as referring to a single possibility, rather than two. It also seems to me to be at least arguable that the statement raised, sufficiently, a proposal to take action to stop his dismissal before a competent body under some relevant industrial law. If Mr Dowling raises a respectable case about such an issue the reverse onus of proof in s 809 of the Act would operate to assist him to some extent. In the circumstances I do not think the point is unarguable. 17 Considerations of prejudice and possible injustice support the grant of leave to appeal unless it is clear that the first limb of test in Décor is not met. If leave to appeal is refused that will spell the end of Mr Dowling s challenge to his termination of employment, at least in the present proceedings. On the other hand, as I have made clear to him, a grant of leave says nothing about whether an appeal will succeed. 18 There will be a grant of leave to appeal, therefore, from the decision of the FMCA to refuse Mr Dowling leave to amend his applications to rely upon s 793(1)(j) and (k) and from the consequential decision to dismiss the proceedings as a whole.

15 Mr Dowling has also sought expedition of his appeal on the ground that it is over 12 months since he was dismissed. The appeal will only decide whether he should have had leave to amend his claim to rely on s 793(1)(j) and (k) of the Act. I see no basis to accede to his other requests (which include transfer of the proceedings as a whole to this Court, instant leave to amend his application, interim reinstatement and that counsel for Fairfax be charged with Contempt of Court and be given joint sentences and referred to the Office of the Legal Services Commission ). However, I think it is reasonable, in the circumstances, for the interlocutory issue which is raised by the present application for leave to appeal to be decided as promptly as is practicable. 20 If the appeal fails that will bring Mr Dowling s application to finality. If the appeal succeeds the application may proceed without undue delay. I doubt it will be practicable or possible to accommodate the appeal in the forthcoming Full Court period but that is not a matter which, in any event, I can determine. I will, however, order expedition. 21 I have indicated to Mr Dowling that attention needs to be given to the grounds set out in his draft notice of appeal and whether an amended notice of appeal should be filed. The issues in respect of which I will grant him leave to appeal appear in general terms in an affidavit filed in support of the present application but they are not sufficiently raised in the draft notice of appeal. Other complaints there made do not relate to the reasons why leave to appeal will be granted and continued reliance upon them would be distracting. Mr Dowling must decide what course he will take, and it will be a matter for the Full Court to decide what course is appropriate, but it should be understood that my reasons for granting leave to appeal turn entirely on the issues of construction which I earlier identified. 22 The orders I will make are: 1. Leave is granted to appeal the decision and orders of the Federal Magistrates Court of Australia in Dowling v John Fairfax Publications Pty Ltd (No 3) [2008] FMCA 845 to the extent that the applicant was refused leave to amend his application before that Court to rely on s 793(1)(j) and (k) of the Workplace Relations Act 1996 (Cth) (Order 1) and to the extent that, as a consequence, his application before that Court was dismissed (Order 2). 2. The hearing of the appeal be expedited.

16 Costs of the application for leave to appeal are to be costs in the appeal. I certify that the preceding twentytwo (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 29 July 2008 Solicitor for the Applicant: Solicitor for the Respondent: Applicant appeared in person Freehills Date of Hearing: 29 July 2008 Date of Judgment: 29 July 2008

17 FEDERAL COURT OF AUSTRALIA Dowling v Fairfax Media Publications Pty Ltd (ACN ) (Formerly John Fairfax Publications Pty Ltd) [2008] FCA 1470 INDUSTRIAL LAW appeals from decisions of Federal Magistrates Court summarily dismissing proceedings on the basis that they had no reasonable prospects of success statutory construction meaning of provisions in Pt 16 of the Workplace Relations Act 1996 (Cth) freedom of association. Held: Appeals upheld. Acts Interpretation Act 1901 (Cth) Federal Magistrates Act 1999 (Cth) Federal Magistrates Court Rules 2001 (Cth) Occupational Health and Safety Act 2000 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Workplace Relations Act 1996 (Cth) Workplace Relations Amendment (Work Choices) Bill 2005 (Cth) Australasian Meat Industry Employees Union v Belandra Pty Ltd (2003) 126 IR 165; [2003] FCA 910 Australian Workers Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482; [2001] FCA 3 BHP Iron Ore Pty Ltd v Australian Workers Union (2000) 102 FCR 97; [2000] FCA 430 Burnie Port Corporation Pty Ltd v Maritime Union of Australia (2000) 104 FCR 440; [2000] FCA 1768 Byrne v Australian Ophthalmic Supplies Pty Ltd (2008) 169 IR 236; [2008] FCA 66 Community and Public Sector Union (2006) 157 IR 470; [2006] FCAFC 176 Community and Public Sector Union v Commonwealth of Australia (2006) 157 IR 457; [2006] FCA 1589 Community and Public Sector Union v Commonwealth of Australia (2006) 157 IR 470; [2006] FCAFC 176 Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008 Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463; [1999] FCA 1108 Dowling v Fairfax Media Publications Pty Ltd [2008] FCA 1114 Dowling v John Fairfax Publications Pty Limited (No 3) [2008] FMCA 845 Dowling v Kirk & 16 Ors (No 3) [2008] FMCA 1083 Dowling v Kirk [2008] FCA 165 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Employment Advocate v Williamson (2001) FCR 20; [2001] FCA 1164 Endresz v Whitehouse [1998] 3 VR 461

18 - 2 - Geelong Grammar School [2000] FCA 557 Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union (2001) FCR 232; [2001] FCA 349 Hope v Bathurst City Council (1980) 144 CLR 1 House v The King (1936) 55 CLR 499 Independent Education Union v Geelong Grammar School [2000] FCA 557 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60 JF Keir Pty Ltd v Sparks [2008] FCA 611 Jordan v Mornington Inn Pty Ltd (2007) 166 IR 33; [2007] FCA 1384 McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111; [2006] FCA 828) Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 National Union of Workers v Qenos Pty Ltd (2001) 108 FCR 90; [2001] FCA 178 Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126 Unsworth v Tristar Steering and Suspension Australia Limited [2008] FCA 1224 SHANE DOWLING v FAIRFAX MEDIA PUBLICATIONS PTY LTD (ACN ) (FORMERLY JOHN FAIRFAX PUBLICATIONS PTY LTD) NSD 1031 OF 2008 SHANE DOWLING v DAVID KIRK & ORS NSD 1197 OF 2008 JAGOT J 1 OCTOBER 2008 SYDNEY

19 GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1031 OF 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SHANE DOWLING Appellant AND: FAIRFAX MEDIA PUBLICATIONS PTY LTD (ACN ) (FORMERLY JOHN FAIRFAX PUBLICATIONS PTY LTD) Respondent JUDGE: JAGOT J DATE OF ORDER: 1 OCTOBER 2008 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is upheld. 2. Orders (1) and (2) of the Federal Magistrates Court dated 26 June 2008 are set aside. 3. The matter is remitted to the Federal Magistrates Court for determination in accordance with law. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

20 GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1197 OF 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: AND: SHANE DOWLING Appellant DAVID KIRK First Respondent RON WALKER Second Respondent JULIA 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

21 - 2 - KELLY DALY Thirteenth Respondent NATALIE PARCELL (NEE CARRINGTON) Fourteenth Respondent YEMEE FERNANDES Fifteenth Respondent KEVIN STOKES Sixteenth Respondent ROBERT WHITEHEAD Seventeenth Respondent JUDGE: JAGOT J DATE OF ORDER: 1 OCTOBER 2008 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is upheld. 2. Orders (1) and (2) of the Federal Magistrates Court dated 28 July 2008 are set aside. 3. The matter is remitted to the Federal Magistrates Court for determination in accordance with law. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

22 GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1031 OF 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SHANE DOWLING Appellant AND: FAIRFAX MEDIA PUBLICATIONS PTY LTD (ACN ) (FORMERLY JOHN FAIRFAX PUBLICATIONS PTY LTD) Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1197 OF 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: AND: SHANE DOWLING Appellant DAVID KIRK First Respondent RON WALKER Second Respondent JULIA KING Third Respondent ROGER CORBETT Fourth Respondent MARK BURROWS Fifth Respondent DAVID EVANS Sixth Respondent PETER YOUNG Seventh Respondent

23 - 2 - 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 PARCELL (NEE CARRINGTON) Fourteenth Respondent YEMEE FERNANDES Fifteenth Respondent KEVIN STOKES Sixteenth Respondent ROBERT WHITEHEAD Seventeenth Respondent JUDGE: JAGOT J DATE: 1 OCTOBER 2008 PLACE: SYDNEY REASONS FOR JUDGMENT 1 These are two appeals against decisions of the Federal Magistrates Court. Both decisions relate to proceedings commenced by the appellant as a result of Fairfax Media Publications Pty Ltd s termination of the appellant s employment in May Both decisions were made in reliance on the powers of the Federal Magistrates Court to grant summary judgment if satisfied that the appellant had no reasonable prospect of successfully prosecuting the proceeding (s 17A(2)(b) of the

24 - 3 - Federal Magistrates Act 1999 (Cth) and rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth)). 2 The procedural history is complex. For present purposes it is sufficient to say that proceedings NSD 1031 of 2008 involve an appeal against the decision of the Federal Magistrates Court dismissing proceedings SYG 2671 of This decision was made on 26 June 2008 (Dowling v John Fairfax Publications Pty Limited (No 3) [2008] FMCA 845). The respondent s name has changed and, pursuant to an order made during the hearing of the appeals, the respondent became Fairfax Media Publications Pty Limited. Consistent with the approach in other decisions relating to this dispute I refer to proceedings SYG 2671 of 2008 as the principal proceedings the subject of the appeal (the latter qualification is necessary because other decisions have been made in the principal proceedings which are not the subject of the grant of leave to appeal). 3 Proceedings NSD 1197 of 2008 involve an appeal against the decision of the Federal Magistrates Court dismissing proceedings SYG 2704 of This decision was made on 28 July 2008 (Dowling v Kirk & 16 Ors (No 3) [2008] FMCA 1083). Consistent with the approach in other decisions relating to this dispute I refer to proceedings SYG 2704 of 2007 as the directors and officers proceedings the subject of the appeal (the latter qualification is necessary because other decisions have been made in the directors and officers proceedings which are not the subject of the grant of leave to appeal). There are numerous respondents in the directors and officers proceedings. However, I note that when I refer to the respondent, I mean Fairfax Media Publications Pty Ltd unless indicated to the contrary. 4 Both proceedings involved a dispute about the meaning of provisions in the Workplace Relations Act 1996 (Cth). In the principal proceedings the subject of the appeal the relevant provisions are ss 793(1)(j) and (k). In the directors and officers proceedings the subject of the appeal the relevant provision is s 793(1)(j). This Court granted the appellant leave to appeal against both decisions (in the principal proceedings see Dowling v Fairfax Media Publications Pty Ltd [2008] FCA 1114; in the directors and officers proceedings, where the leave to appeal application was

25 - 4 - heard later, the grant of leave was by consent on 26 August 2008). The appeals were expedited. 5 Given the decisions made by the Federal Magistrates Court that are the subject of the grants of leave there are three issues capable of determination in these appeals. First, was the trial judge s construction of ss 793(1)(j) and (k) of the Workplace Relations Act correct? Secondly, and in any event, is the construction of those provisions contended for by the respondent in its notice of contention correct? Thirdly, should the trial judge have disqualified himself? 6 There is a divergence in the authorities about the nature of the power to dismiss proceedings on the ground that they have no reasonable prospects of success. On one view it is a power conditional on the finding of the relevant facts without any element of discretion (for example, Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60 at [128] [129]). On another it is a discretionary power that may or may not be exercised if the facts enlivening its exercise are found (for example, JF Keir Pty Ltd v Sparks [2008] FCA 611 at [12]). This difference could be relevant to the nature of the appellate function because of the restrictions on appellate review of discretionary decisions (House v The King (1936) 55 CLR 499 at ). In this case, however, the divergence is immaterial because the trial judge s decision to dismiss the proceedings summarily was based on the construction of the statutory provisions. 7 To understand the issues in the appeal it is necessary to identify the relevant factual circumstances that were before the trial judge and the reasons for decision. BACKGROUND Facts 8 The facts capable of being relevant to the issues of statutory construction are as follows. 9 The respondent employed the appellant at all material times before the termination of the appellant s employment in May Issues about aspects of

26 - 5 - management of certain matters relating to sales arose in early The appellant wished to complain to the respondent s human resources department but believed he was discouraged from so doing. This led to the appellant making a formal complaint about bullying and intimidation. The matter escalated. On 16 April 2007 the appellant informed senior management by that he believed senior management had subjected him to gross amounts of bullying, intimidation and bastardisation. The appellant identified this as conduct in breach of NSW Occupational Health and Safety Law and NSW Industrial Relations Law. The penultimate paragraph of this said that this was the appellant s 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. At a meeting on 7 May 2007 the appellant said this meeting is over and it is outrageous. I will be getting WorkCover involved. The respondent gave the appellant a warning letter. The appellant complained about the letter to a member of the respondent s management saying that They are threatening to sack me and I believe I can take out a court order stopping them from sacking me. I also told [another employee] yesterday that I would be making a complaint to WorkCover but have decided to at least wait until after the meeting tomorrow. The respondent terminated the appellant s employment. The appellant alleges that his employment was terminated because he proposed to take his complaints outside the company and to take out a court order to stop his termination. The appellant says that the respondent did not want to give him time to do so. 10 The appellant s position is that these facts engage ss 793(1)(j) and (k) of the Workplace Relations Act which sets out two prohibited reasons for conduct proscribed by s 792 of the Act (which includes a proscription on an employer terminating an employee s employment). As noted, due to the history of the proceedings ss 793(1)(j) and (k) are both relevant to the principal proceedings the subject of the appeal whereas s 793(1)(j) alone is relevant to the directors and officers proceedings the subject of the appeal. 11 The two provisions (ss 793(1)(j) and (k)) are as follows: (1) Conduct referred to in subsection 792(1) or (5) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:

27 - 6 - (j) (k) has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek: (i) compliance with that law; or (ii) the observance of a person's rights under an industrial instrument; or has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; or 12 Certain definitions in s 779(1) should also be identified immediately, namely: industrial instrument means an award or agreement, however designated, that: (a) (b) is made under or recognised by an industrial law; and concerns the relationship between an employer and the employer's employees, or provides for the prevention or settlement of a dispute between an employer and the employer's employees. industrial law means this Act, the Registration and Accountability of Organisations Schedule or a law, however designated, of the Commonwealth or of a State or Territory that regulates the relationships between employers and employees or provides for the prevention or settlement of disputes between employers and employees. Principal proceedings the subject of the appeal 13 The trial judge reasoned as follows in the principal proceedings the subject of the appeal. The appellant proposed to rely on ss 793(1)(j) and (k) by way of an application to amend his claims in the principal proceedings. The trial judge identified the applicable principles with respect to allowing the amendment including the principle that no amendment should be allowed if to do so would be futile (at [13]). 14 The relevant question was thus whether the amendment would be futile because the facts alleged by the appellant were incapable of falling within the statutory provisions identifying prohibited reasons in ss 793(1)(j) and (k). Although not articulated as such, this exercise involved the trial judge in determining whether the facts alleged by the appellant necessarily fell outside the statutory descriptions, which is a question of law (The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126 at and Hope v Bathurst City Council (1980) 144 CLR 1 at 89). The trial judge found that the facts alleged by the appellant necessarily

28 - 7 - fell outside ss 793(1)(j) and (k) (on the proper construction of those sections) with the consequence that leave to amend to rely on those sections was denied. As there were no other issues remaining in the principal proceedings, they were dismissed. 15 The trial judge reached this conclusion with respect to s 793(1)(j) on the following basis: - (i) s 793 is in Pt 16 of the Workplace Relations Act, which deals with freedom of association, (ii) nothing in the appellant s allegations referred to any membership of or association with an industrial association or to any conduct of the respondent which impacted on the appellant s freedom of association rights, (iii) construing s 793(1)(j) as applying to a proposed complaint to WorkCover would be anomalous as the section is in a part of the statute dealing with freedom of association rights, (iv) such a construction would not promote the objects of Pt 16 of the Act having regard to the need to give a purposive construction of statutory provisions, (v) this approach to s 792(1)(j) is supported by authority, which should be understood as saying that s 792(1)(j) is an enactment of the rights in s 659(2)(e) but in a freedom of association context, (vi) in any event WorkCover is not a person or body having power under an industrial law to seek compliance with an industrial law because the word seek, in the freedom of association context, reflects the role of industrial associations whereas WorkCover s role was to enforce the law, and (vii) hence, even if the respondent terminated the appellant s employment because he proposed to complain to WorkCover, s 793(1)(j) was not engaged. 16 The trial judge reached this conclusion with respect to s 793(1)(k) on the following basis: - (i) consistent with the approach above, the appellant s allegations did not contain any freedom of association component, (ii) in any event, foreshadowing a complaint to WorkCover or expressing a belief that a court order could be obtained was not the announcement of an intention to seek one (at [45]), and (iii) hence, even if the respondent terminated the appellant s employment because he proposed to complain to WorkCover or believed he could take out a court order, s 793(1)(k) was not engaged.

29 - 8 - Directors and officers proceedings the subject of the appeal 17 By the time of the decision with respect to the directors and officers proceedings the subject of the appeal the appellant s leave to amend the application in those proceedings was limited to reliance on s 793(1)(j). The trial judge had also dismissed the principal proceedings (see above). In the directors and officers proceedings the subject of the appeal the trial judge concluded that: - (i) accessorial liability of the directors and officers under s 728 of the Workplace Relations Act was dependent on liability of the company as the principal, (ii) the principal proceedings had been dismissed because the only outstanding issue (the appellant s application to amend to rely on ss 793(1)(j) and (k)) had no reasonable prospects of success, the amendment being futile for the reasons referred to above, and (iii) it thus followed that there could be no accessorial liability on the part of the directors and officers within the meaning of s 728 as there was no contravention by the principal. 18 In the directors and officers proceedings the subject of the appeal the appellant also asked the trial judge to disqualify himself. The trial judge declined for the reasons given at [11] and [12] of the decision. The appeal grounds with respect to the directors and officers proceedings the subject of the appeal include that the trial judge should have disqualified himself. Respondent s notice of contention 19 In the principal proceedings the subject of the appeal the respondent contended that the decision of the Federal Magistrates Court should be upheld on other grounds. Those grounds are: - (i) WorkCover is not a person or body that has a capacity under an industrial law to seek compliance with an industrial law or observance of a person s rights under an industrial instrument, and (ii) a court or commission is not a person or body for the purposes of s 793(1)(j) because a court or commission does not have a capacity under an industrial law to seek compliance with an industrial law or observance of a person s rights under an industrial instrument.

30 - 9 - Observation 20 It will be apparent from this summary of the decisions the subject of the appeals that a more extensive review of the statutory provisions is required. STATUTORY PROVISIONS 21 The Workplace Relations Act is divided into parts. Part 1 (preliminary) deals with the statutory objects, definitional matters and the application of the Act. 22 The principal objects of the Workplace Relations Act are set out in s 3. They include: (a) (b) (c) (d) (e) (f) encouraging the pursuit of high employment, improved living standards, low inflation and international competitiveness through higher productivity and a flexible and fair labour market; and establishing and maintaining a simplified national system of workplace relations; and providing an economically sustainable safety net of minimum wages and conditions for those whose employment is regulated by this Act; and ensuring that, as far as possible, the primary responsibility for determining matters affecting the employment relationship rests with the employer and employees at the workplace or enterprise level; and enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances; and ensuring compliance with minimum standards, industrial instruments and bargaining processes by providing effective means for the investigation and enforcement of: (i) employee entitlements; and (ii) the rights and obligations of employers and employees, and their organisations; and (h) (i) (j) (n) supporting harmonious and productive workplace relations by providing flexible mechanisms for the voluntary settlement of disputes; and balancing the right to take industrial action for the purposes of collective bargaining at the workplace level with the need to protect the public interest and appropriately deal with illegitimate and unprotected industrial action; and ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association; and assisting in giving effect to Australia's international obligations in relation to labour standards.

31 Section 4(1) contains a definition of proceeding (inclusively defined). It also contains a definition of State or Territory industrial law. Apart from nominated statutes this definition refers to laws that apply to employment generally and have one or more of the following as its main purpose or one if its main purposes: (i) regulating workplace relations (including industrial matters, industrial disputes and industrial action, within the ordinary meaning of those expressions), (ii) providing for the determination of terms and conditions of employment, (iii) providing for the making and enforcement of agreements determining terms and conditions of employment, (iv) providing for rights and remedies connected with the termination of employment, and (v) prohibiting conduct that relates to the fact that a person either is, or is not, a member of an industrial association (as defined in s 779). Under s 16(1) the Act expresses an intention to operate to the exclusion of State and Territory industrial laws. However, s 16(2)(c) preserves the operation of State and Territory industrial laws for non-excluded matters. Non-excluded matters include, in s 16(3)(c), laws dealing with occupational health and safety (including entry of a representative of a trade union to premises for a purpose connected with occupational health and safety). To similar effect, any term of an award or workplace agreement dealing with occupational health and safety is not excluded by operation of s 17(1) (see s 17(2)(a)). 24 Sections 5, 6 and 7 contain definitions of employee, employer and employment. 25 Part 8 relates to workplace agreements. Provisions relating to workplace agreements include ss 356 to 366 dealing with prohibited content. Under these provisions a workplace agreement containing prohibited content has a range of consequences and potential consequences. Section 356(1) specifies the meaning of prohibited content for the purpose of these provisions as follows: (1) For the purposes of this Act, each of the following is prohibited content: (a) a provision that requires or permits any conduct that would contravene Part 16, or that would contravene that Part if Division 2 of that Part were disregarded; (b) a provision that directly or indirectly requires a person: (i) to encourage another person to become, or remain, a member of an industrial association; or (ii) to discourage another person from becoming, or remaining, a

32 (c) (d) (e) (f) member of an industrial association; a provision that indicates support for persons being members of an industrial association; a provision that indicates opposition to persons being members of an industrial association; a provision that requires or permits payment of a bargaining services fee; a matter specified in the regulations. 26 Part 9 concerns industrial action (defined in s 420). 27 Part 12 deals with minimum entitlements of employees. Division 4 of Pt 12 deals with these minimum entitlements with respect to the termination of employment. It has its own objects in s 635 as follows: (1) The principal object of this Division is: (a) to establish procedures for conciliation in relation to certain matters relating to the termination or proposed termination of an employee's employment in certain circumstances; and (b) to provide, if the conciliation process is unsuccessful, for recourse to arbitration or to a court depending on the grounds on which the conciliation was sought; and (c) to provide for remedies appropriate to a case where, on arbitration, a termination is found to be harsh, unjust or unreasonable; and (d) to provide for sanctions where, on recourse to a court, a termination or proposed termination is found to be unlawful; and (e) by those procedures, remedies and sanctions, and by orders made in the circumstances set out in Subdivision D, to assist in giving effect to the Termination of Employment Convention. (2) The procedures and remedies referred to in paragraphs (1)(a) and (b), and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a "fair go all round" is accorded to both the employer and employee concerned. 28 Division 4 prescribes procedures for the conciliation of matters relating to an employee s termination culminating in an election either to proceed to arbitration or to begin court proceedings (s 651). The appellant made a claim under this part and, after conciliation, elected to proceed to court. The proceedings were transferred by the Federal Court to the Federal Magistrates Court. The principal proceedings included a claim under s 659 which has its own statement of objects. Section 659, insofar as relevant, is as follows: (1) In addition to the principal object of this Division set out in section 635, the additional object of this section is to make provisions that are intended to assist

33 in giving effect to: (a) the Convention concerning Discrimination in respect of Employment and Occupation, a copy of the English text of which is set out in Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986 ; and (b) the Family Responsibilities Convention; and (c) the Termination of Employment Recommendation, 1982, which the General Conference of the International Labour Organisation adopted on 22 June 1982 and is also known as Recommendation No (2) Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons: (a) temporary absence from work because of illness or injury within the meaning of the regulations; (b) trade union membership or participation in trade union activities outside working hours or, with the employer's consent, during working hours; (c) non-membership of a trade union; (d) seeking office as, or acting or having acted in the capacity of, a representative of employees; (e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; (f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; (g) refusing to negotiate in connection with, make, sign, extend, vary or terminate an ITEA; (h) (i) absence from work during maternity leave or other parental leave; temporary absence from work because of the carrying out of a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances. 29 The appellant, in the principal proceedings, relied on s 659(2)(e). That claim (which was dismissed) is not part of the current appeal proceedings. These references to s 659 and related provisions in Pt 12 are to assist in explaining the issues of construction with respect to s Under s 662 a contravention of s 659 is not an offence. Section 663 sets out the people and bodies capable of making applications in relation to alleged contraventions of s 659 (amongst other provisions). Section 664 relates to proof in proceedings under s 663 as follows: In any proceedings under section 663 relating to a termination of employment in contravention of section 659 for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section: (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but