Marks, Ex Parte; Re McIntyre, Harrison and Harrison and Anor C17/2000

[2000] HCATrans 696

IN THE HIGH COURT OF AUSTRALIA

Registry  No C17 of 2000

In the matter of -

An application for Writs of Certiorari and Mandamus and against VICE PRESIDENT McINTYRE, SENIOR DEPUTY PRESIDENT HARRISON AND COMMISSIONER HARRISON (Members of the Full Bench of the Australian Industrial Relations Commission)

First Respondent

COMMONWEALTH OF AUSTRALIA (Department of Defence)

Second Respondent

Ex parte –

JOSEPH TONI MARKS

Prosecutor/Applicant

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 22 NOVEMBER 2000, AT 5.24 PM

Copyright in the High Court of Australia

MR J.T. MARKS:  If it please the Court, I appear on my own behalf.

MR T.M. HOWE:  If your Honour pleases, I appear for the second respondent.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Marks, you are the moving party.

MR MARKS:   Yes, your Honour, if your Honour pleases.  I sought consent to remission for this matter to go to the Federal Court and the second respondent has refused.  I think the matter should be remitted.  I cannot see anything that has been put that is against the application for remitter and I would submit that the matter should be remitted.  I have put in written submissions and I have also prepared written submissions in reply to some of the submissions made by the second respondent.

HIS HONOUR:   Are these in addition to written submissions that I received earlier?  These are written submissions in reply.

MR MARKS:    Yes.

HIS HONOUR:   I see.

MR MARKS:    To cover some of the points made by the second respondent.

HIS HONOUR:   Yes.  I should announce before the matter proceeds any further that the Deputy Registrar has handed me a letter from the solicitors for the first respondent that the first respondent does not wish any representation to be made on its behalf or abide by any order save as to costs of this Court and if remitted, the Federal Court. 

Mr Howe, when this matter was listed, my understanding was that the Commonwealth was agreeable to it being remitted, or your side was agreeable to it being remitted, subject to ensuring that the time provisions in this Court applied.  Is that so, or has there been some misunderstanding?

MR HOWE:    Your Honour, we were opposing any extension of time being granted to the applicant but if your Honour was minded to extend time, then at that point we did not oppose the remittal of the matter.  So it really is a contest about whether time ought be extended that is the proximate issue for your Honour’s resolution.

HIS HONOUR:   But it really requires, on that basis, if I were to myself determine the question of time, I can hardly do it without a detailed analysis and examination, really, of the whole case.  Does it not come to that?

MR HOWE:   Your Honour would be required to form some preliminary view about whether or not the applicant’s prospects of success in the substantive application are strong.  We would not invite your Honour to descend into great detail in that regard.

HIS HONOUR:   But why should I not send it to the Federal Court, provided they can determine this question about the extension of time?  Is not the current doctrine or the received doctrine that the Federal Court stands in our shoes?  Did not Justice Mason say that in the Hamilton Island Case?

MR HOWE:   As I understand the position, your Honour, if the application for an order nisi is remitted to the Federal Court, that application then would proceed without the applicant needing an extension of time and so, our position, your Honour ‑ ‑ ‑

HIS HONOUR:   Can you take me to the authorities that say that?  Mr Marks, this is, in one sense, it is out of order but on another it might shorten proceedings.

MR MARKS:   If I can refer, your Honour, to my paragraph 17 of my supplementary submissions, it refers to a case in 1999.

HIS HONOUR:   Sorry, paragraph 17?

MR MARKS:   Yes, your Honour.

HIS HONOUR:   What do you call your supplementary submissions?

MR MARKS:   That is government talk for the written submissions in reply.

HIS HONOUR:   Yes, but I do not see a paragraph 17 there.  Is it your paragraph 17?

MR MARKS:   Yes, my paragraph 17.  This refers to the case ‑ ‑ ‑

HIS HONOUR:   Yes, of Pelekanakis.

MR MARKS:   Yes, and in that – heard in the Federal Court of Australia – if I refer your Honour to paragraphs 93 and 94 of that case.

HIS HONOUR:   Paragraph 93 – “order nisi must be made within six months from the ‑ ‑ ‑

MR MARKS:   It is self‑explanatory, your Honour.

HIS HONOUR:   Yes, I am just reading it.  Well, what do you say about that?  Have you had a look at that, Mr Howe?  The Federal Court apparently takes the view that its power to extend time is the same as this Court.

MR HOWE:   Your Honour, the difficulty that would arise, though, is that there is no time limit that applies in the event that the matter is remitted to the Federal Court.  Were there a time limit that applied to the Federal Court ‑ ‑ ‑

HIS HONOUR:   There is no time limit, but there is a question of discretion.  This goes to the exercise of discretion, does it not?

MR HOWE:   Well, in the Federal Court, your Honour, the Federal Court would, of course, require the applicant to have proceeded with reasonable expedition but the applicant, if the matter is remitted, would not face the time limitation that applies under the High Court Rules and it does seem to be the case, your Honour, that in relation to remitter it is intended to facilitate the course of litigation rather than to enhance or diminish a plaintiff’s rights or correspondingly, alter a defendant’s obligations and that was the principle, your Honour, enunciated in Pozniak v Smith 41 ALR 353 and affirmed by Chief Justice Gibbs in State Bank of New South Wales and Another v Commonwealth Savings Bank of Australia 53 ALR 625. In that latter case, your Honour, Chief Justice Gibbs went on and said that:

The purpose of a remitter under s 44 is simply to relieve this Court of the necessity to hear cases that might more conveniently be heard elsewhere, particularly where the litigation involves the trial of issues of fact.

which is not this case –

The Court should not, by making a remitter, alter the rights of the parties.  The plaintiff chose the High Court as its forum.

Now, in this case, your Honour, the applicant sought to apply for the constitutional writs in this Court and in our submission, in so doing, attracted the application of time limits and he was out of time when application was made and he needs an extension of time and if the matter were remitted to the Federal Court the Federal Court would not, of course,

apply the time limit that applies under the High Court Rules and so the applicant would be advantaged by the fact of remitter and, in our submission, that is against the proscription that was referred to in the cases to which I took your Honour.

HIS HONOUR:   Yes.  I do not think I will short circuit it.  Yes, you had better proceed, Mr Marks, and put your arguments as to why you should get an extension of time.

MR MARKS:   Should I refer to my written submissions or do I take them as read?

HIS HONOUR:   You take me to those parts of them that you want to emphasise or develop or extend.

MR MARKS:   My application is based on a number of aspects.  My first argument is that the Australian Industrial Relations Commission is a non‑judicial body, in which case the time limits specified in the High Court Rules for mandamus and certiorari do not really apply.  That is covered in paragraph 3 to 7 of my written submissions.  My second main argument is if I refer your Honour to the case of Soetanto, Ex parte - there was a decision by Justice Gummow to remit a matter which was out of time.  In that he mentioned that there was two ‑ ‑ ‑

HIS HONOUR:    Have you a copy of Soetanto there?  Where is the passage in Soetanto?  Page 6 is it?

MR MARKS:   Yes, your Honour.  Basically the decision suggests that a need for an extension of time is, first, that the person is out of time by the High Court Rules and also being out of time in the jurisdiction to which the remitter is requested.  In the case of Soetanto he was out of time by the High Court Rules and he would also be out of time in the jurisdiction to which the remitter was requested.

In a case like mine, I would not be out of time in the Federal Court, apart from the question of discretion, because there are no time limits for seeking prerogative relief in the Federal Court.

HIS HONOUR:   Why did you not go to the Federal Court in the first place?

MR MARKS:   If only I could, your Honour.

HIS HONOUR:   I beg your pardon?

MR MARKS:   If only I could have.  There is no possibility at all.  If there is, no barrister knows of how.  I tried to go the Federal Court.  They refused to accept documents.  They said, “You have got no case and you cannot bring this action into the Federal Court.  Name one person who has.”

HIS HONOUR:   On what basis?  They have the same jurisdiction as we have now under 39B of the Judiciary Act, have they not?  I mean, we cannot send this case to the Federal Court unless it has jurisdiction.

MR MARKS:   Because the Federal Court is estopped from taking – or no matter can be heard in the Federal Court straight from the Australian Industrial Relations Commission.

HIS HONOUR:   Well, that used to be the rule but I understood it had been changed by legislation, but anyway.

MR MARKS:   The Federal Court has no jurisdiction to look at anything from the Australian Industrial Relations Commission, particularly in my matter.  It is restricted by, I think, the Workplace Relations Act from memory.

HIS HONOUR:   Yes.  It is put against you that there is no merits in your claim and, therefore, you should not get time extended.

MR MARKS:   Well, I am ‑ ‑ ‑

HIS HONOUR:   If the Federal Court has no jurisdiction itself, have we got jurisdiction to send the matter to them?

MR MARKS: Yes, your Honour, because under section 412(2) and (3) of the Workplace Relations Act the original jurisdiction of the Federal Court includes matters which are remitted by the High Court where writs of mandamus are sought against officers of the Commonwealth.  The Judiciary Act in 39B specifically excludes mandamus being ‑ ‑ ‑

HIS HONOUR:   Yes, I see, 412.  Yes.  What about the merits of the case?

MR MARKS:   The merits are based on a legal error or acting on the wrong principle ‑ ‑ ‑

HIS HONOUR:   Well, that is not a jurisdictional matter.

MR MARKS:   Well, it is a jurisdictional error if, as per Craig v South Australia – can I read the quote?

HIS HONOUR:   Yes.

MR MARKS:   It is on page 179.  If a:

tribunal falls into error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

The error which I argue was made was that I was a public servant employed under the Public Service Act when I started my employment and a public servant has bells and whistles.  He goes into his job.  He still has bells and whistles.  When he is dismissed, when he takes out an action for unfair dismissal, the bells and whistles which he had when he was dismissed are not - taken away from him, so he is stripped bare when he goes to Workplace Relations.

Now, what Mr Jones, in the first instance, and the Full Bench of the Australian Industrial Relations Commission, in the second instance, did was they failed to take account that I was a public servant with all the protection and privileges afforded a public servant ‑ ‑ ‑

HIS HONOUR:   Yes, but that only seems to indicate they made an error within their jurisdiction.

MR MARKS:   Well, they had to determine that there was a – whether the Public Service Act applied to me and the only ruling was that the Public Service Act applied to me only in respect of the length of probation.  The rest of the Public Service Act was ignored.  The Workplace Relations Act does not state that, you know, a public servant comes there, you know, he forget all his rights and privileges which are in the statute, forget the rulings in Dixon v Commonwealth, forget Colpitts, forget what the High Court says, forget Barratt v Howard, forget Edwards v Justice Giudice, forget everything.  They cannot do that.  It is like an agreement.  The agreement cannot be torn up and it cannot be ignored and, if they make an error, it goes to their jurisdiction when their discretionary power is exercised.

HIS HONOUR:   Yes.

MR MARKS:   If the Public Service Act takes precedence over the Workplace Relations Act, it will follow that the Australian Industrial Relations Commission in both instances made errors and the Full Bench of the Australian Industrial Relations Commission by failing to pick up the error made by the Commissioner in the first place themselves made an error and it affected their exercise of discretion in not to grant me leave to appeal.  The basis for granting leave to appeal in the Commission is that one has an arguable case.  I am arguing that I have an arguable case on the merits in the Industrial Relations Commission on appeal.  That would enable me to be granted the leave to appeal.

HIS HONOUR:   I must say I have some difficulty at the moment seeing it, but anyway.  Yes.  Have you got anything further to put?

MR MARKS:   Does your Honour want me to address any of the matters I raised in my written submissions?

HIS HONOUR:   No, no.  I must say the question of delay troubles me.  I would want to be convinced you have a real case before I will extend the time after such a delay.

MR MARKS:   The case is not foolproof, it is not ironclad, but it is based on a 50/50 bet that the Court on review of the decision will accept, based on the inconsistency argument, that the Public Service Act would prevail over the Workplace Relations Act in this sphere of unfair dismissals and, following from that, the reasons given for my dismissal given on 13 August were different from the reasons advanced previously why I was being considered for dismissal.  So there is a parallel argument and because of the complexity of industrial law ‑ ‑ ‑

HIS HONOUR:   It is not my practice to reserve on these matters but on this particular case I think – it is a matter of fact of having regard to the lateness of the hour and I am not convinced, without being critical of you, that you may have done yourself full justice, so I would like to study the whole of the material at some length.

MR MARKS:   Yes, your Honour.

HIS HONOUR:   So I will hear what Mr Howe has to say.  I was not stopping you, Mr Marks.  If there is anything further that you want to put, do not ‑ ‑ ‑

MR MARKS:   I was not prepared to make – or I did not think I could make oral submissions on top of my written submissions.

HIS HONOUR:   Yes.  You have made your ‑ ‑ ‑

MR MARKS:   Perhaps why it is a bumbled explanation somewhat.  I apologise, your Honour.

HIS HONOUR:   Yes.  Mr Howe, do you want to add to your written submissions in any way?

MR HOWE:   Just very briefly, your Honour, but before doing so, the applicant I note is self‑represented.  He failed to actually read the affidavits on which he relies but we are happy to treat them as read and we take no objection whatsoever to those, your Honour.

HIS HONOUR:   Yes.

MR HOWE:   That is the first point.  Secondly, your Honour, in relation ‑ ‑ ‑

HIS HONOUR:   Yes.  Well, that is the affidavit of 21 July.  Sorry, it is my fault.  We can take that affidavit as read.  Do you rely on your affidavit of 21 July 2000, Mr Marks?

MR MARKS:   Yes, your Honour.

HIS HONOUR:   Yes.

MR HOWE:   There are two such affidavits, each dated 21 July.  Your Honour, the first attaches the decision of the Full Bench and the like and the second gives the explanation for the delay.

HIS HONOUR:   Yes.  They can both be taken as read.

MR HOWE:   Thank you, your Honour.

HIS HONOUR:   Yes, Mr Howe.

MR HOWE:   Your Honour, in relation to the issue of whether or not a time limit applies under the High Court Rules in respect of the application for mandamus, it is the case that in Soetanto’s Case Justice Gummow held that the Immigration Review Tribunal, out of which the proceedings before him arose, was probably not a judicial tribunal and, therefore, strictly speaking the two‑month time limit did not apply, but his Honour nonetheless accepted that the time limit under Order 55 rule 30 that applies in relation to judicial tribunals is nevertheless a pointer to the need for an applicant to proceed with all due expedition and, given that mandamus really would only follow from an order of the Court quashing the decision of the tribunal at first instance, his Honour proceeded properly to deal with the application for an extension of time which does prevail in relation to applications for certiorari.

So far as whether or not the Commission itself is a judicial tribunal, we would simply observe, your Honour, that there have been decisions of the Federal Court to the effect that the Commission does issue at least quasi‑judicial determinations ‑ ‑ ‑

HIS HONOUR:   There is no doubt, it is beyond argument it is a quasi‑judicial tribunal to which the rules of natural justice apply.  It was one of those Angliss Cases that was decided, if not for the first time, back in 118 CLR.

MR HOWE:   Yes.  So it is a vexed issue as to whether it is a judicial tribunal within the meaning of the High Court Rule, but we would say in any event the real issue is whether time should be extended in respect of certiorari.

Your Honour, just in relation to the explanation for the delay advanced by the applicant, we have set out our position in summary in paragraph 18 of our submissions and in that we note that the applicant approached various barristers, none of whom gave him any encouragement to bring the proceedings.  I will not take your Honour through the affidavit of 21 July but it does indicate that the applicant approached 10 different legal representatives and obtained advice from each of them over the period of 12 to 14 months and, without exception, he received discouraging advice.  He really only instituted ‑ ‑ ‑

HIS HONOUR:   I meant to mention to you that I notice one of the persons he consulted is Mr David Mossop, who is a former associate of mine and whom I will be having dinner with tonight.  I take it that no one has any objection to me ‑ ‑ ‑

MR HOWE:   No, your Honour, certainly not.

HIS HONOUR:   We certainly will not be discussing the case.

MR HOWE:   Your Honour, the final point that I would take your Honour to concerns the applicant’s prospects of success in obtaining prerogative relief or a constitutional writ and, your Honour, in paragraph 30 of our submissions we quote from a majority judgment of the High Court in Coal and Allied Operations Pty Ltd 174 ALR 585. Your Honour, it is true that in Craig’s Case the High Court had previously adumbrated a different rule about what constitutes jurisdictional error for courts on the one hand and conventional administrative tribunals on the other.  But in this case of Coal

and Allied Operations the High Court was concerned specifically with the Industrial Relations Commission which is, of course, the tribunal out of which these present proceedings arise.  In paragraph 30 of our submissions, your Honour, we quote from the judgment in Coal and Allied at page 594 and the one thing I wanted to take your Honour to was what immediately preceded the passage that we quote in our submissions.

That consists, your Honour, of the High Court noting that the Full Court of the Federal Court had, in the proceedings that generated the application:

concluded that the Full Bench of the Commission fell into jurisdictional error because it proceeded on the basis that the decision of Boulton J  -

in the Commission at first instance –

was attended by appealable error when it was not.

The High Court majority in Coal and Allied Operations went on to note that a wrong decision about whether there is appealable error at first instance is not a jurisdictional error.  Your Honour, we say ‑ ‑ ‑

HIS HONOUR:   Yes.  I did not sit in Coal and Allied but I have read the judgment.

MR HOWE:   Yes.  We say that that approach applies with complete vigour to these proceedings and stands very strongly against the applicant having a scintilla of prospects in the matter.  Those are our submissions, if the Court pleases.

HIS HONOUR:   Thank you.  Anything in reply, Mr Marks, or are you relying on your written submissions in reply?

MR MARKS:   No, the only thing I wish to add, your Honour, is I cannot bring a full argument to bear on the merits because that would take possibly two days.  All I can do is give a brief outline and the summation is that I do have prospects.  They are not ironclad.

HIS HONOUR:   Ordinarily the bar is very low for an order nisi.  You just have to show an arguable case.  It is confused slightly in this case by the fact that there is this extremely long delay, but be that as it may, I propose to reserve my decision in this matter.

MR HOWE:   Your Honour, one final matter:  if your Honour reserves, we had sought costs and in the event that your Honour favours our application for costs, if we could ask your Honour to certify for the appropriateness of the attendance of counsel.  Thank you, your Honour.

HIS HONOUR:   Thank you.  Adjourn the Court.  I am sorry, Mr Marks.

MR MARKS:   Your Honour, if I can just make a reference to costs, a reference to the decision in Bosco.  It is Bosco Chi Ho Yeung, paragraph 6 concerning costs where it states that the proceedings in relation to extension of times covers “application for an extension of time for the institution of an appeal”.  This would be in the same nature.

HIS HONOUR:   Is there not some section in the Industrial ‑ ‑ ‑

MR MARKS:   It is section 417, your Honour, “Application for extensions of time to institute proceedings in a matter arising under the Workplace Relations Act is a proceeding for which costs are not given unless the matter is vexatious, frivolous or unreasonable”.  And the test of unreasonable was given by Chief Justice Wilcox in Foxcroft v The Ink Group Pty Ltd 1 IRCR 215 at 219F. It is made reference to in paragraph 14 of my submissions in reply:

if success depends upon the resolution in the applicant’s favour of one or more arguable points of law it is inappropriate to stigmatise the proceedings as being without reasonable cause.

I submit that is the test for unreasonableness.

HIS HONOUR:   I am not sure that those authorities really bear on a question of extension of time within this Court, but anyway, I will look at them.

MR MARKS:   There have been cases where extensions of time for prerogative writs have been ruled to be proceedings, your Honour.

HIS HONOUR:   Yes, but we are talking about extension of time.  Yes, well, you might adjourn the Court.

AT 5.56 PM THE MATTER WAS ADJOURNED