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

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.

REASONS FOR JUDGMENT

BUCHANAN J:

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)       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

(k)       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 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.’

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.’

11                  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 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.

19                  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.

3.                  Costs of the application for leave to appeal are to be costs in the appeal.

Associate:

Dated:         29 July 2008