R v Public Service Commissioner (Cth)

This case concerned an application for a writ of mandamus brought by Patrick Henry Killeen, an officer in the Commonwealth Public Service, against the Public Service Commissioner for the Commonwealth of Australia. Killeen sought to compel the Commissioner to proceed with his appeal against the recommended appointment of two junior officers, Dutton and Thege, to vacant positions within the Treasury Department. Killeen contended that he was senior to Dutton and Thege and was equally capable of performing the duties, thus being "affected" by the Commissioner's recommendation and certificate under sections 42 and 44 of the *Commonwealth Public Service Act 1902-1911*.

The central legal issue before the High Court was whether an officer who applied for a vacant position, but was not recommended for appointment in favour of a junior officer, was "affected" by the Commissioner's recommendation within the meaning of section 50 of the *Commonwealth Public Service Act 1902-1911*, thereby entitling them to appeal. A secondary issue arose regarding the futility of issuing a writ of mandamus, given that the appointments had already been made by the Governor-General.

The Court was divided. Griffith C.J. dissented, holding that the word "affected" in section 50 meant "directly affected" in a manner that altered an officer's status to their detriment, and did not extend to a disappointed hope of promotion. He reasoned that section 42 did not grant an absolute right to appointment but rather directed that regard be had to efficiency and seniority in making a choice, and that the Commissioner's recommendation was not a report or action that could be appealed under section 50. Isaacs and Powers JJ. held that Killeen was indeed "affected" by the Commissioner's recommendation and certificate, as these actions deprived him of his relative right to consideration based on seniority and efficiency, and thus he was entitled to appeal under section 50. However, all judges agreed that, as the appointments had already been made and the positions were filled, a writ of mandamus would be futile, as it could not undo the appointments or compel the Commissioner to alter a recommendation already acted upon. Consequently, the order nisi for mandamus was discharged.