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

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.

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 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.

Associate:

Dated:         24 August 2007