Fischer v Cwealth of Aus

[1997] HCATrans 112

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S93 of 1996

B e t w e e n -

THOMAS FISCHER

Applicant

and

COMMONWEALTH OF AUSTRALIA and DEPARTMENT OF SOCIAL SECURITY

Respondents

Ex parte application for leave to issue process

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 21 APRIL 1997, AT 9.31 AM

Copyright in the High Court of Australia

HIS HONOUR:   You appear for yourself, Mr Fischer?

MR T. FISCHER:   I do, your Honour.

HIS HONOUR:   Can I ask you, first, have you got the papers with you, including the decisions of the judicial registrar?

MR FISCHER:   Yes, it is all in the application book.

HIS HONOUR:   Yes, it is in that application book.  Have you got a copy of that?

MR FISCHER:   Yes.

HIS HONOUR:   Now, I have perused all of this.  Can I just ask for your help in one matter?  Can you look at page 4 of the application book, that is setting out an affidavit, you will see, by Mr Ktenas.  See paragraph 9 there.  Have you got an application on foot flowing out of the Public Service Act, an application going through the Merit Protection and Review Agency?

MR FISCHER:   Not now.  I had at that time, yes.

HIS HONOUR:   I see.

MR FISCHER:   But they were about different matters.

HIS HONOUR:   I see.  All right.  The other thing I wanted to ask you was this:  you see page 24, towards the bottom of the page.  This is an affidavit from a Mr Anderson.  Paragraph 3 says:

As manager of personnel I held a delegation to terminate probationary appointments pursuant to section 47 -

Now, on the face of it, that would suggest he held a delegation both from the Secretary and from the Commissioner.

MR FISCHER:   That is what he suggested.  I am suggesting that he is wrong.

HIS HONOUR: That brings us to the real point, I suppose. Can I just explain this and see if you follow and then see what you want to say to me about it. Your point is, in substance, is it not, that your probationary appointment was terminated by a Delegate of the Secretary, whereas it had to be a Delegate of the Commissioner under section 47 of the Public Service Act?

MR FISCHER:   Not quite.  My point is that in my case it could only have been delegated by the Commissioner himself and not by anybody else.

HIS HONOUR:   Yes, that is right.

MR FISCHER:   You said by a delegate.

HIS HONOUR:   That the Commissioner could have had a delegate?

MR FISCHER:   No.

HIS HONOUR:   You say he could not have had a delegate.  So it had to be the Commissioner or nobody?

MR FISCHER:   Yes, because he has not delegated this authority.

HIS HONOUR: All right. But it is all bound up with section 47 of the Public Service Act?

MR FISCHER:   Yes.

HIS HONOUR:   What I want to suggest to you is that the litigation you had in the Industrial Relations Court and the Industrial Relations Act all assumes that there has been a termination, but then the Industrial Relations Act says it was something of which you can complain because it was harsh, et cetera, because you did not have an opportunity to be heard and so on, but it assumes what otherwise is an effective dismissal.  Do you follow me?  In other words, the Public Service Act is one matter, the Industrial Relations Act is another matter.  The Industrial Relations Act says, and you come along to Court and say, “I’ve been dismissed and I complain about it under the Industrial Relations Act.”  If you go back to the book again, the judgment of Chief Justice Wilcox, page 38, you see a sentence in the middle of the page:

His employment was terminated on 15 June 1994, under s.47 of the Act, when the Department annulled what was said to be a probationary appointment -

Do you see that?

MR FISCHER:   Yes.

HIS HONOUR: Then, in the Full Court of the Federal Court, on page 90 of the book, the second sentence at the top of the page there, “His employment was terminated”, do you see that? Now, as I understand your argument about section 47, it is you are saying, “I have never been effectively terminated because, in law, it required the Commissioner to do it and the Commissioner did not do it.”

MR FISCHER:   That is it in a nutshell, I guess.

HIS HONOUR:   I think it is.  What I am asking you to try and understand is that the Industrial Relations Act assumes, as those passages in the judgments indicate, there has been a termination and then says, “Was it harsh or unjust” et cetera, “Were you denied procedural fairness?”  Now, when the Full Court of this Court was refusing leave and they said that the point - have you got that?

MR FISCHER:   When they refused leave or special leave?

HIS HONOUR:   When they refused leave, which is on the second consideration, they said, you see the paragraph in the middle there:

The point which the applicant seeks to argue on appeal -

and that is the point we have just been talking about, I think -

cannot result in orders in his favour under Division 3 of Part VIA as sought in his originating process.

That would be simply because it is going in the wrong direction, you see.  If you are right that you have never been terminated, the Industrial Relations Act cannot help you.

MR FISCHER:   I have been terminated, there is no question of that, but I was terminated incorrectly.

HIS HONOUR:   Terminated in law, you say, was beyond statutory power.

MR FISCHER:   Yes.  I mean, I have been terminated.  I no longer work there, I no longer get wages.

HIS HONOUR:   We are talking about the effect of it in law, Mr Fischer, and I am trying to make you understand what was being said by the Full Court.  If you do not follow that, well you do not follow it, but that is the position.  That is why their Honours, it seems to me, said what they said and that is why, of course, these arguments that you are now putting were not put by your legal representatives, as I see it, in the Full Court and before Chief Justice Wilcox.

MR FISCHER:   Sorry, I did not hear that.

HIS HONOUR: The arguments you are now seeking to put about section 47 are not discussed by Chief Justice Wilcox or by the Full Court.

MR FISCHER:   That was the problem, your Honour.

HIS HONOUR:   And the reason why - you had legal representation then, did you not?

MR FISCHER:   I did.

HIS HONOUR:   Well, the reason why is an appreciation by those who were then appearing for you, I imagine, that it would not work.  The argument would not be successful.  It could not be successful.

MR FISCHER:   But I do not follow.  I mean, there is no question that I was terminated.

HIS HONOUR:   You mean terminated ‑ ‑ ‑

MR FISCHER:   Fired, whatever you want to call it.

HIS HONOUR:   All right.

MR FISCHER:   And I am saying it was illegal, the act; this is my whole argument.  Therefore, it was unjust.

HIS HONOUR:   Now, I have got a written case and supported notice of motion.  Have you got that?  It is a document of four pages with an attachment.

MR FISCHER:   Yes, I have that here.

HIS HONOUR:   There is another document, too.  There is a document headed “Applicant’s summary of argument”, you have that?

MR FISCHER:   Yes.

HIS HONOUR:   That is two pages and it has got some annexures.

MR FISCHER:   There is a statement of facts behind it.

HIS HONOUR:   That is right.   Now, do those documents set out the arguments that you want to be putting as to the substance of what your complaint is?

MR FISCHER:   Yes, your Honour.

HIS HONOUR:   All right.  But is there anything else you want to say to supplement that?

MR FISCHER:   I guess the substance of the argument is that my dismissal was unlawful because my employment was terminated by someone other than the Public Service Commissioner, as required by section 47 of the Public Service Act.  In the last five years I believe there have been 71 other people thus illegally terminated in the Department of Social Security and there would probably be hundreds in the entire Public Service.  I believe, therefore, my dismissal was a contravention of both sections 170DC and section 170DE of the Industrial Relations Act as the proper procedure for the termination of a probationary employee was not adhered to and thus resulting in a contravention of both the Industrial Relations Act and the Public Service Act.  As a result of this, I believe that my employment was both unlawfully and unreasonably terminated.

One of the problems, your Honour, if I can say this, is that the interpretation of the probationary appointments, how they can be terminated.  Both the Chief Justice and the Full Court said, in essence, that the Secretary can terminate the employment of a probationary employee in the first year.  After two years the appointment - you cannot be terminated as a probationary employee any more after two years.  No one seems to deal with the period in between one and two years.  My interpretation of the Act, and I think it can be the only interpretation, is that it should only be done in very rare circumstances and, obviously, the probationary process should be done in the first year.  Thus, I think it is a ‑ ‑ ‑

GUMMOW J: These are arguments about construction of section 47?

MR FISCHER:   Yes.

GUMMOW J: This proceeding you had before the Merit Protection and Review Agency, did that involve any interpretation of section 47?

MR FISCHER:   It is totally irrelevant, your Honour, what happened ‑ ‑ ‑

GUMMOW J:   You say that to me, but I am asking you, did it contain any ‑ ‑ ‑

MR FISCHER:   No.

GUMMOW J:   Very well. 

MR FISCHER:   I believe that the only interpretation of section 47 in regard to termination for the second year, which no one - both the Chief Justice and the Full Court did not interpret - is that it should only be done in very rare circumstances and that only by the Public Service Commissioner, as I think is clear from the reading of the Public Service Act.  Thus, I believe the whole thing was illegal.  There are also various employees of the Department that agree with this and the Personnel Management Manual that says the same thing.  It all flows to the - if you have a look at page 52 of the application book where Chief Justice says, the first few sentences:

The person who terminated Mr Fischer’s employment was Kenneth Anderson, the then Manager of Personnel in the Sydney Central Area of the Department of Social Security. Mr Anderson had authority, as a delegate of the Secretary of the Department, to terminate probationary appointments under s. 47 of the Public Service Act.

Now, if that is wrong in what he is saying, then I would say the whole judgment is wrong.

GUMMOW J:   Is there anything else you want to say?

MR FISCHER:   Your Honour, I cannot say any more.

GUMMOW J:   I will take a short adjournment.

AT 9.49 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.10 AM:

GUMMOW J: This litigation was instituted by an application by Mr Fischer under section 170EA of what was then the Industrial Relations Act 1988 (Cth). In the application to the Industrial Relations Court of Australia, Mr Fischer sought an order declaring that the termination of his employment contravened Div 3 of Part VIA of the Act, reinstatement, compensation and such other orders as would restore him to the same position he held before the termination. The matter came before a Judicial Registrar who held against Mr Fischer. The Chief Justice of the Court subsequently upheld that decision. An appeal to the Full Court of the Court was dismissed. Ultimately, this Court dismissed the application for leave to appeal saying:

“         The point which the applicant seeks to argue on appeal cannot result in orders in his favour under Div. 3, Part VIA of the Industrial Relations Act 1988 (Cth) as sought in his originating process. It follows that the proposed appeal enjoys no prospect of success.”

Mr Fischer moves ex parte and seeks leave to issue further process which would have the result of further consideration of the matter in this Court.  This morning he seeks leave to issue such process, the leave being sought pursuant to Order 58 rule 4(3) of the High Court Rules.  Leave should be refused because further litigtion in this Court would be futile.

The nub of the matter is the point Mr Fischer says he has as to the construction of section 47 of the Public Service Act 1922 and the effectiveness in law of the steps taken in apparent reliance upon that section by a Delegate of the Secretary. There may have been other legal avenues open to test the question of whether there was an error of law in the decision taken by the Delegate of the Secretary under section 47. I say nothing of that, nor as to the correctness of Mr Fischer’s construction of section 47. This is not an appropriate forum to determine those questions. The point is that the applicant seeks to agitate now, in this Court, that particular construction of section 47.

The consequence of acceptance of the point made would be that there was no termination effective at law.  The matter is detailed further in some written submissions by Mr Fischer headed “Applicant’s summary of argument” and filed on 23 August 1996.  Paragraphs 11, 12 and 13 of Part III state:

That power then resides only in the Commissioner. That is clear from the provision of section 47(6)(c), which provides that the Secretary is to give written notice to the Commissioner that the Secretary does not intend to confirm a given appointment. The Commissioner’s power in this respect is not delegated

In this case the Delegate of the Secretary purported to use a power he did not possess, and the determination is therefore invalid. 

The Court erred in accepting that the Appellant’s employment was validly terminated for the purposes of the Act -

that is to say the Public Service Act-

which finding underlies the finding below that the termination was for a valid reason.

However, to accept that construction of section 47 would not have resolved the issues Mr Fischer raised under Div 3 of Part VIA of the Industrial Relation Act, and which were dealt with in the decision of the Judicial Registrar and in the judgments of Wilcox CJ and the Full Court. The case under that statute necessarily proceeded on the footing that the termination having taken place and being otherwise legally effective, there were questions whether there had been contravention of Div 3 of Part VIA.

Accordingly, as this Court has already said, the point now sought to be argued could not have resulted in orders in Mr Fischer’s favour under Div 3, Part VIA of the Industrial Relations Act 1988. There is no point in further agitating the point in this Court. Accordingly, leave under Order 58 rule 4(3) is refused.

I will now adjourn.

AT 10.17 AM THE MATTER WAS CONCLUDED