FEDERAL COURT OF AUSTRALIA Dowling v Fairfax Media Publications Pty Ltd [2009] FCAFC 162 SHANE DOWLING v FAIRFAX MEDIA PUBLICATIONS PTY LTD NSD 354 of 2009 SHANE DOWLING v DAVID KIRK AND ORS NSD 355 of 2009 GRAHAM, LOGAN AND FLICK jj 6 NOVEMBER 2009 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY FAIR WORK DIVISION NSD 354 of 2009 ON APPEAL FROM THE FEDERAL COURT BETWEEN: SHANE DOWLING Appellant AND: FAIRFAX MEDIA PUBLICATIONS PTY LTD Respondent JUDGES: GRAHAM, LOGAN AND FLICK JJ DATE OF ORDER: 6 NOVEMBER 2009 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Application made by the appellant for the provision of a transcript of the hearing before Moore J on 23 – 25 and 31 March 2009 free of charge, be refused. 2. The Application made by the appellant for the adjournment of the hearing of the appeal fixed for 6 November 2009 be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY FAIR WORK DIVISION NSD 355 of 2009 ON APPEAL FROM THE FEDERAL COURT BETWEEN: SHANE DOWLING Appellant AND: DAVID KIRK First Respondent RON WALKER Second Respondent JULIA MARION KING Third Respondent ROGER CORBET 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 KELLY DALY Thirteenth Respondent NATALIE CARRINGTON Fourteenth Respondent YEMEE FERNANDES Fifteenth Respondent KEVIN STOKES Sixteenth Respondent ROBERT WHITEHEAD Seventeenth Respondent JUDGES: GRAHAM, LOGAN AND FLICK JJ DATE OF ORDER: 6 NOVEMBER 2009 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Application made by the appellant for the provision of a transcript of the hearing before Moore J on 23 – 25 and 31 March 2009 without charge, be refused. 2. The Application made by the appellant for the adjournment of the hearing of the appeal fixed for 6 November 2009 be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY FAIR WORK DIVISION NSD 354 of 2009 ON APPEAL FROM THE FEDERAL COURT BETWEEN: SHANE DOWLING Appellant AND: FAIRFAX MEDIA PUBLICATIONS PTY LTD Respondent IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY FAIR WORK DIVISION NSD 355 of 2009 ON APPEAL FROM THE FEDERAL COURT BETWEEN: SHANE DOWLING Appellant AND: DAVID KIRK First Respondent RON WALKER Second Respondent JULIA MARION KING Third Respondent ROGER CORBET 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 KELLY DALY Thirteenth Respondent NATALIE CARRINGTON Fourteenth Respondent YEMEE FERNANDES Fifteenth Respondent KEVIN STOKES Sixteenth Respondent ROBERT WHITEHEAD Seventeenth Respondent JUDGES: GRAHAM, LOGAN AND FLICK JJ DATE OF ORDER: 6 NOVEMBER 2009 WHERE MADE: SYDNEY REASONS FOR JUDGMENT the court: 1 There are two appeals presently before the Court. These are identified as appeals in proceedings NSD 354 of 2009 and NSD 355 of 2009. The appeals relate to a judgment of Moore J, delivered on 9 April 2009, when the two matters were before the Court at first instance. His Honour delivered one set of reasons referable to the two matters which were heard together. 2 The original Notices of Appeal were filed on 28 April 2009. They were superseded by Amended Notices of Appeal filed on 29 June 2009. On 19 August 2009 a letter was sent by the Court Registry to the appellant, who is a litigant-in-person, and also to the solicitors for the respondents in the two matters, notifying the parties that the appeals had been listed for hearing before the Court on Friday, 6 November 2009 at 10:15am. When the appeals were called for hearing today, the appellant made two applications ore tenus, one inviting one of the members of the bench to recuse himself, which application was declined. The second application was one seeking relief to the following effect: (1) An order dispensing with the requirements of the rules referable to the filing of appeal books. (2) An order that the Court make available to the appellant free of charge a copy of the transcript of the hearing before Moore J which took place on 23-25 March and 31 March 2009. (3) An order that the hearing of the appeals be adjourned. 3 Earlier orders were made for the provision by the appellant of appeal books in accordance with the Rules and a draft index which had been prepared by the Court Registry and forwarded to the appellant on 15 July 2009. The requirement of the Court's order of 23 October 2009 was that the appeal books be filed and served no later than 4:00pm on 30 October 2009. That order was not complied with. 4 A further order was made by one of the members of the bench on 23 October 2009 directing the appellant to file and serve an affidavit setting forth the reasons for non-compliance in the event that appeal books were not filed and served within the requisite period allowed for that purpose. 5 In the event that an application were to be made for variation of orders made on 23 October 2009, and contained in paragraphs 1 and 2 of the orders made on that day, an affidavit was to be filed by the appellant setting forth the basis upon which any application was to be made. 6 The appellant informs the Court that it was because of the two requirements referable to the filing of affidavits that he filed an affidavit sworn by himself on 2 November 2009 and he now seeks to rely upon that affidavit in support of the application which he has made ore tenus for the orders mentioned. 7 The Court does not propose to make any order on the application for an order dispensing with the requirement for the filing and service of appeal books. The Court is not of the opinion that an order should be made for the provision by the registry of a copy of the transcript of the proceedings before Moore J to which reference has been made, and the Court is of the opinion that the hearing of the appeal should not be adjourned. 8 An opportunity was afforded to the appellant to attend at the registry and read the transcript before Moore J. The appellant has informed the Court that he attended at the registry and after about a half an hour formed the view that it was a waste of time and that he could not take time off work to spend more time noting what was recorded in the transcript. It was suggested to the appellant that he had in fact attended at the registry with a view to inspecting the transcript in late May 2009. He did not dispute that it was around about that time that he had attended the Court, been given access to the transcript, and made the election which he did make, not to spend any more time considering the available transcript. 9 Apart from relying upon his suggestion that he could not afford to take time off work to inspect the transcript, he suggested that there was no assurance that if he identified pages that he wanted copied, that copies would necessarily be made available. Of course, it was open to him to make notes of those parts of the transcript which he considered important so that even without the benefit of free photocopies being provided, he still had the opportunity to make his own notes as to what the transcript recorded. 10 Whilst the Court will be at a disadvantage in proceeding with the hearing of the appeal in the absence of appeal books, the Court is of the opinion that the appeal should proceed. The Court has the benefit of the judgment which is the subject of the appeal, and it has the benefit of the Amended Notices of Appeal and of the written submissions of the parties in relation to the appeals. 11 So the orders of the Court will be that the application for the provision of transcript be dismissed and that the application for the hearing of the appeals to be adjourned be dismissed. The hearing will now proceed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Graham, Logan and Flick. Associate: Dated: 18 November 2009 The Appellant appeared in person. Counsel for the Respondent: K L Eastman Solicitor for the Respondent: Freehills Date of Hearing: 6 November 2009 Date of Judgment: 6 November 2009