Dowling v Kirk [2008] FCA 165

Dowling v Kirk [2008] FCA 165

Leave to appeal was only granted in the directors and officers proceedings (NSD 39/2008) in respect of Order 1 of the Federal Magistrates Court on grounds that it is arguable whether the presumption under s 809(1) operates as contended and that the construction of ss 792, 793, and 807 raises important questions of law. Leave was refused in the other two proceedings as the claims either lacked substance or jurisdiction, or no substantial doubt or injustice was demonstrated.

Parties
Applicant: Shane Dowling; First Respondent: David Kirk; Second Respondent: Linda Price; Third Respondent: Carolyn Bradley; Fourth Respondent: Shivchand Jhinku; Second Respondent (nsd 39): Ron Walker; Third Respondent (nsd 39): Julia Marion King; Fourth Respondent (nsd 39): Roger Corbett; Fifth Respondent (nsd 39): Mark Burrows; Sixth Respondent (nsd 39): David Evans; Seventh Respondent (nsd 39): Peter Young; Eighth Respondent (nsd 39): John Fairfax; Ninth Respondent (nsd 39): Nicholas Fairfax; Tenth Respondent (nsd 39): Gail Hambly; Thirteenth Respondent (nsd 39): Kelly Daly; Fourteenth Respondent (nsd 39): Natalie Carrington; Fifteenth Respondent (nsd 39): Yemee Fernandes; Sixteenth Respondent (nsd 39): Kevin Stokes; Seventeenth Respondent (nsd 39): Robert Whitehead; Respondent (nsd 40): John Fairfax Publications Pty Ltd
Jurisdiction
Australia
Judgment Date
18 January 2008
Procedural Posture
Application for Leave to Appeal / Determination of Application for Leave to Appeal From Decisions of Federal Magistrate
Outcome
Leave to appeal granted only in NSD 39 of 2008 against Order 1 of the Federal Magistrates Court 20 December 2007; other applications dismissed.
Legal Topics
Workplace Relations Act, Prohibited Reasons for Dismissal, Bias in Judicial Decisions, Summary Dismissal, Federal Appellate Procedure, Contempt of Court
Employment Law Workplace Relations Act Prohibited Reasons for Dismissal Bias in Judicial Decisions Summary Dismissal Federal Appellate Procedure Contempt of Court

Case Brief

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Parties

Shane Dowling

Applicant

David Kirk

First Respondent

Linda Price

Second Respondent

Carolyn Bradley

Third Respondent

Shivchand Jhinku

Fourth Respondent

Ron Walker

Second Respondent (nsd 39)

Julia Marion King

Third Respondent (nsd 39)

Roger Corbett

Fourth Respondent (nsd 39)

Mark Burrows

Fifth Respondent (nsd 39)

David Evans

Sixth Respondent (nsd 39)

Peter Young

Seventh Respondent (nsd 39)

John Fairfax

Eighth Respondent (nsd 39)

Nicholas Fairfax

Ninth Respondent (nsd 39)

Gail Hambly

Tenth Respondent (nsd 39)

Kelly Daly

Thirteenth Respondent (nsd 39)

Natalie Carrington

Fourteenth Respondent (nsd 39)

Yemee Fernandes

Fifteenth Respondent (nsd 39)

Kevin Stokes

Sixteenth Respondent (nsd 39)

Robert Whitehead

Seventeenth Respondent (nsd 39)

John Fairfax Publications Pty Ltd

Respondent (nsd 40)

Procedural Posture

Application for Leave to Appeal / Determination of Application for Leave to Appeal From Decisions of Federal Magistrate

Legal Issues

  1. 1 Whether the Federal Magistrate erred in dismissing claims of bias
  2. 2 Whether the requirements under ss 792, 793, and 807 of the Workplace Relations Act 1996 (Cth) were properly applied
  3. 3 Whether summary judgment was correctly granted in respect of claims under s 659(2)(e) of the Workplace Relations Act 1996 (Cth)

Ratio Decidendi

Leave to appeal was only granted in the directors and officers proceedings (NSD 39/2008) in respect of Order 1 of the Federal Magistrates Court on grounds that it is arguable whether the presumption under s 809(1) operates as contended and that the construction of ss 792, 793, and 807 raises important questions of law. Leave was refused in the other two proceedings as the claims either lacked substance or jurisdiction, or no substantial doubt or injustice was demonstrated.

Court Disposition

Leave to appeal granted only in NSD 39 of 2008 against Order 1 of the Federal Magistrates Court 20 December 2007; other applications dismissed.

Orders

  • Application for leave to appeal in NSD 26 of 2008 dismissed with costs.
  • Application for leave to appeal in NSD 40 of 2008 dismissed.