Miller v Australian Industrial Relations Commission

[2000] FCA 1244

FEDERAL COURT OF AUSTRALIA

Miller v Australian Industrial Relations Commission [2000] FCA 1244

SACKVILLE J
7 SEPTEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 801 OF 2000

BETWEEN:

DAVID MILLER
APPLICANT

AND:

FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
FIRST RESPONDENTS

UNIVERSITY OF NEW SOUTH WALES
SECOND RESPONDENT

JUDGE:	SACKVILLE J
DATE:	7 SEPTEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 5 May 2000, the applicant instituted proceedings in the High Court seeking orders nisi for writs of mandamus and certiorari directed to the first respondents, members of the Full Bench of the Australian Industrial Relations Commission (“the Commission”). The second respondent in these proceedings is the University of New South Wales (“the University”). The proceedings were remitted to this Court by an order made by Gaudron ACJ on 12 July 2000.

2. The applicant had previously instituted proceedings in the Commission under s 170CE of the Workplace Relations Act 1996 (Cth) seeking an order reinstating him in his previous employment with the University as an Associate Professor. The Senior Deputy President concluded that the dismissal of the applicant by the University was not harsh, unjust or unreasonable. An application for leave to appeal to the Full Bench was refused.

3. In the proceedings remitted to this Court, the applicant contends that the Full Bench made a number of jurisdictional errors in refusing leave to appeal. According to the applicant, these errors entitle him to prerogative relief.

4. The applicant is not at present legally represented. He now seeks an order pursuant to Federal Court Rules (“FCR”), O 80 r 4, which provides as follows:

   “Referral to a legal practitioner

   (1)The Court or a Judge may, if it is in the interests of the administration of justice, refer a litigant to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance.

   (2)For subrule (1), the Court or Judge may take into account:

   (a)the means of the litigant; and

   (b)the capacity of the litigant to obtain legal assistance outside the scheme; and

   (c)the nature and complexity of the proceeding; and

   (d)any other matter that the Court, or Judge, considers appropriate.

   (3)A referral to the Registrar is effected by the issue of a Referral Certificate in accordance with Form 161 in relation to the litigant.

   (4)If a Referral Certificate has been issued, the Registrar must attempt to arrange for the legal assistance mentioned in the certificate to be provided to the litigant by a legal practitioner on the Pro Bono Panel.

   (5)However, the Registrar may refer a litigant to a particular legal practitioner only if the practitioner has agreed to accept the referral”.

   The kinds of assistance for which referral may be made are specified in O 80 r 5 and include “representation generally in the conduct of the proceedings”.

5. FCR O 80 r 1 provides as follows:       

   “(1)        …

   (2)   The purpose of this order is to facilitate, where it is in the interests of the administration of justice, the provision of legal assistance to litigants who are otherwise unable to obtain assistance.

   (3)   The provision of legal assistance under this order is not intended to be a substitute for legal aid.

   (4)   A referral under this order is not an indication that the Court has formed an opinion on the merits of a litigant’s case.

   (5)   Nothing in this order requires the Court to make a referral, or to consider a litigant’s case for referral, under this order.”

6. The applicant has supported his application with an affidavit. He states that he was legally represented for the first five days of the proceedings at first instance in the Commission. Thereafter he represented himself and has continued to do so. He has applied for legal aid from various bodies but has been refused. The applicant informed me that his application to the Legal Aid Commission of New South Wales had been refused because he could not satisfy the means test having regard to his wife’s assets.

7. The applicant’s affidavit reveals that, in addition to his home, he has substantial assets in the form of a superannuation withdrawal benefit. The applicant’s assets are such that he could, if he so wished, obtain legal assistance outside the scheme. I also take into account the fact that the applicant has had the benefit of a full consideration of the merits of his claim by the Senior Deputy President. This is not a case where the applicant, through want of means, has been unable to challenge an employment decision adverse to him.

8. Doubtless the applicant and the Court would benefit if he was legally represented in the proceedings in this Court. However, I am not satisfied, having regard to the matters specified in FCR O 80 r 4(2), that it is in the interests of the administration of justice that the applicant be referred to the Registrar for legal assistance. Accordingly, I do not propose to make the orders sought by the applicant.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.

Associate:

Dated:             7 September 2000

The applicant appeared in person.
Counsel for the 2nd Respondent:	Mr R M Goot
Solicitor for the 2nd Respondent:	Minter Ellison
Date of Hearing:	31 August 2000
Date of Judgment:	7 September 2000