Shumack, Ex parte - Re Environment Australia & Ors
[2004] HCATrans 367
[2004] HCATrans 367
IN THE HIGH COURT OF AUSTRALIA
Registry No C6 of 2004
In the matter of -
An application for Writs of Certiorari, Mandamus and Prohibition against ENVIRONMENT AUSTRALIA
First Respondent
THE HONOURABLE JUSTICE MUNRO, SENIOR DEPUTY PRESIDENT CARTWRIGHT AND COMMISSIONER CARGHILL AS MEMBERS OF A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Second Respondents
Ex parte –
PETER SHUMACK
Applicant/Prosecutor
McHUGH J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 29 SEPTEMBER 2004, AT 10.01 AM
Copyright in the High Court of Australia
MR P. SHUMACK appeared in person.
MR G.J. LOUGHTON: May it please your Honour, I appear for the Commonwealth. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, Mr Loughton.
MR LOUGHTON: The application on its face is an application where Environment Australia is the named respondent. In fact, Environment Australia is formerly a name of the Department of the Environment. It has no legal status of its own and in substance the respondent is therefore the Commonwealth.
HIS HONOUR: Yes, thank you. There is a certificate from the second respondent that it will not be appearing in the matter. Now, Mr Shumack, you are unrepresented. You have no representation.
MR SHUMACK: Not at this stage, no, your Honour.
HIS HONOUR: Now, ordinarily matters like this would be sent down to the Federal Court, but the Court does not send matters down if there is not even an arguable case. You have brought yourself within a jurisdiction which is highly technical and I have read your papers, but I am afraid your papers do not address what the issues are. It is a very technical jurisdiction and the Court is not concerned with the merits of your case. You are dealing with what is called the prerogative writ jurisdiction and your submissions do not even address those.
This Court just does not have power to make orders against anybody. It can only make orders in accordance with the Constitution or in accordance with the Judiciary Act and none of the orders that you seek are orders that can be made on the material that you have put before me. Now, I know this must be difficult for you to understand – even highly‑skilled lawyers sometimes have difficulty in understanding this particular jurisdiction – but the whole application is misconceived. What you are seeking are writs of mandamus, writs of prohibition and writs of certiorari.
Now, so far as prohibition is concerned, that only issues when there is something to prohibit. There is nothing to prohibit. The Industrial Relations Commission has not ordered you to do anything, so there is nothing to prohibit. Certiorari only arises in this Court when it can be used in conjunction with some other constitutional writ, and the only arguably relevant writ is mandamus, but mandamus only applies, or can be issued, when a public body has failed to perform a duty that it is required to perform. Here, the duty of the Industrial Commission was to hear your application for leave to appeal. It heard it and it rejected it.
Now, in this jurisdiction, it does not matter whether they were right or wrong to refuse it. As long as they perform their duty, the rights or wrongs, the merits are of no relevance in this Court. It would only be if they had said, “Well, we are not going to hear your case”, or if they said, “Well, we will hear your case but we are going to apply the law of South Australia”, or something, so that they were not really doing what they were supposed to do.
You are just in the wrong court. There is nothing we can do for you. Now, I am sure that is disappointing news for you, but there is just nothing. All the material that you have filed about your grievances and about the rights and wrongs just have no relevance here.
MR SHUMACK: I have been following, if you like, a chain of command and it has arrived at this destination.
HIS HONOUR: I can understand that, but you see Parliament has given the Industrial Relations Commission the jurisdiction to deal with unreasonable or wrongful terminations of employment and it is up to that body to decide those cases. This Court’s only function is to make sure that they keep within their jurisdiction or they perform their jurisdiction, and they have performed their jurisdiction. They have heard your application and they have dismissed it. Whether it was right or wrong could not be dealt with in this Court or, if it was remitted to the Federal Court, could not be remitted to the Federal Court.
I am dealing with the heart of the matter, because there are other technical problems. Under the Rules of Court you have only got a certain time period for bringing mandamus or certiorari, and you are well outside those time limits in this Court. Now, there is really nothing – I have read your papers and there is just really nothing that can be done for you in this Court.
MR SHUMACK: Well, I was applying the concept of realisation. I was researching legislation. I was applying the ACT legislation upon these matters.
HIS HONOUR: But you see ACT legislation has nothing whatever to do with it. The ACT legislature cannot affect what the Industrial Relations Commission does. Their laws cannot validly apply to the Industrial Relations Commission. It is a federal body. What the ACT – they cannot make any orders that can affect this Court. We act under the Constitution and under the Judiciary Act which an act of the federal Parliament.
MR SHUMACK: I was under the belief if a law was not defined by the Commonwealth you go back to the next level. If it was not defined by the State, you utilise the Territory law.
HIS HONOUR: No, I am afraid there is no such doctrine, Mr Shumack, no such rule. This is a question of a federal statute passed by the Parliament of the Commonwealth and it is dealing with industrial relations and it has enacted a law to deal with wrongful dismissal, and that is it. The New South Wales Parliament, the Victorian Parliament, the ACT legislature, none of those bodies can do anything. They have no say in it. Everything is governed by the statute, by this Workplace Relations Act. That is the beginning and end of it. Section 45 of that Act gave the Full Bench the right to hear an appeal and it gave you a right to bring an appeal to the Full Bench against a decision of a member and it gave its decision, and that is it.
MR SHUMACK: I believe that the Australian Industrial Relations Commission did not apply their Act. They did not scope the issues and ‑ ‑ ‑
HIS HONOUR: You see it is not even a question as to whether they are right or wrong in their decision. It is a question whether they performed their duty, and their duty was to hear an application for leave to appeal. They heard it and they refused it. Now, this is not an appeal. It is not for us to say whether they were right or wrong in refusing leave to appeal. The only function of this Court would be to say whether they had jurisdiction to do what they did.
MR SHUMACK: Under section 46 of the Workplace Relations Act I believe they could refer serious matters to a court. They did not do that. I believe they failed in implementing their Act under section 170VF and section 170VW.
HIS HONOUR: But the first question you had to get over was to get leave to appeal. You get nowhere in the Full Bench unless you get leave to appeal. So you had to get leave to appeal and they refused your leave to appeal. The reason they refused you for leave to appeal is that they thought the decision below was so clearly right that it would be a waste of time to give you leave. Now, they may have been right or wrong about that, but that does not matter. In this Court it does not matter.
MR SHUMACK: I believe that this relates to corporate government within the Australian Public Service.
HIS HONOUR: It may well relate to corporate governance, but it has nothing to do in this Court. Our only task, our only function is to say whether they had authority to do what they did, did they perform their function under the Act, and they performed their function by dismissing your appeal. Now, if they had said to you, “Well, we’re not going to hear this application of yours”, they would not have performed their function. This Court could issue an order to them telling them to hear your application. If they said, “We’re not going to hear your application because we don’t like the look of your face”, then again this Court would say, “You haven’t really performed your duty”. We could order them to hear it. But they heard your arguments, they gave their reasons and they said they would not grant you leave. Now, there is no jurisdictional error there. There is no breach of duty that could authorise this Court to give a mandamus.
MR SHUMACK: So what are my rights upon the matter now?
HIS HONOUR: Well, the fact is you just do not have any. I know that is something you do not want to hear, but you just do not have any rights. Parliament has given this jurisdiction to this body and their decision is final, subject to them staying within their jurisdiction, which they have. Neither the Federal Court nor this Court can do it. You may say they should not have such power, but that is what Parliament has done. It has given them that power. It is not for this Court. We cannot say, “You were wrong”. They make thousands of decisions, but we cannot say, “We’re going to reverse you”. We just have no power to do it as long as they stay within their Act.
As I said to you at the beginning, it is a narrow, technical jurisdiction, difficult to understand even for many lawyers and probably extremely difficult for somebody who does not have legal training to understand, but I have no power. There is nothing I can do to assist your case.
MR SHUMACK: Well, I actually did find some case law that did express if a judgment was wrong by a judge it should be reviewed again.
HIS HONOUR: Not in this jurisdiction. If in an appeal jurisdiction, yes, but this is not an appeal. That is the point. You cannot even bring an application in our Court for special leave to appeal against the Industrial Relations Commission. If they make an award, you cannot even apply to this Court for special leave to appeal. They are not one of the bodies listed in section 73 of the Constitution. There are quite a number of bodies like that around. It is like, say, Mr Jackson’s inquiry into asbestos. You could not appeal from that to this Court, nor could we have made any orders to Mr Jackson. That is something that was done under a State Act. This happens to be done under a federal Act. So it is very limited.
But, look, if I could give you a piece of advice which I know from experience you will probably disregard – when I say “experience” because I have given it to other litigants. I have looked at your papers. You are not going to get anywhere with this. Put it behind you, start your life again. You believe that a terrible wrong has been done to you, but there is no legal remedy left. If you keep dealing with it, it will just destroy your own life.
MR SHUMACK: It is too late.
HIS HONOUR: I beg your pardon?
MR SHUMACK: It is too late.
HIS HONOUR: Well, I know, but you have just got to try and start and put it behind you. Look, I have been a Judge of this Court for almost 16 years and I was a Court of Appeal judge for four years and I was a Queen’s Counsel and a barrister for 23 years before that and I have seen litigation destroy people. It is the worst thing that can happen to people, to get involved in litigation. You were five years out of time under the Act before you brought your application and they refused it. Your legal remedies are at an end. There is nothing you can do about it at a legal level.
You can deal with it at a political level, make representations and matters of that nature, but, Mr Shumack, take my advice, just put this behind you. I have studied your papers and legally you will not get anywhere in this particular case. If there was even a barely arguable case, I would send it down to the Federal Court to investigate it, but when I say barely arguable, I mean barely arguable about this jurisdictional question, but there is not. It is so clear – it would be pointless sending it down to the Federal Court. I would be just wasting their time. Ordinarily, this Court is too busy to be hearing these cases, so we just send them down almost automatically to the Federal Court, but there is just nothing I can do. So I am afraid that is it.
I know you are going to be very disappointed, but there is really nothing this Court can do, and having studied the papers, there is nothing I can see that you can do about getting your employment back.
MR SHUMACK: I am actually more concerned about wrongdoing by senior corporate managers getting away with it. I am more concerned with that.
HIS HONOUR: Well, they are matters that you have to take up at a political level or – I noticed you have had correspondence with the Freedom of Information, and matters you can take up with the Ombudsman and matters of that nature.
MR SHUMACK: I meant looking at the Australian Public Service Commissioner. He has a dual role with the Merit Protection Authority, and that they actually duplicate on breaches of the code of conduct on whistle‑blowing. You know, I wrote to the APS Commissioner saying – and he did not even – I have a right to actually voice my concerns through the Act. There is a small gap where I can actually complain where it goes to the department head. He actually did not even acknowledge that point to me. He has powers of inquiry and investigation, and he did not mention them. I came through the Commonwealth Ombudsman and then he referred me back into the Commonwealth Ombudsman. So, I mean, you know ‑ ‑ ‑
HIS HONOUR: Well, the problem, I guess, that government officials would look at, is they say this is an old matter, and unless you can really point to something conclusive, it is unlikely that they are going to get interested in it.
MR SHUMACK: I believe that Environment Australia and certain managers breached the Australian Public Service code values in full. They wasted resources.
HIS HONOUR: Well, I have seen all those statements, the matters that you refer to.
MR SHUMACK: And, you know, I am reading some of the cases that have been done by the High Court. I have expressed them in my documentation. It basically comes down to the basics, the basics of law, and, you know, the basic elements of law. The main concept here is discrimination, constructive termination. Constructive termination is concealment and deceit by the employer.
HIS HONOUR: They were matters for the Industrial Relations Commission, but you could not get them to exercise their discretion to give you leave to bring your case out of time, and I am afraid, from this Court’s point of view, that is the end of the matter.
MR SHUMACK: I was, you know, state of the art technology. I was using the Ontario Limitations Act 204 and it had a classic quote in there.
HIS HONOUR: Well, they have different laws over there. It cannot affect the Federal Court. Mr Shumack, there is nothing that can be done here. I will have to give a judgment. I am going to have to dismiss your application. I am going to have to give a short judgment in the matter, but you will have to take your own course in future, but remember what I said to you. I think you might be well advised to try and put this behind you and remake your life.
MR SHUMACK: The only comment I have made so far is I have documented the best evidence that I could provide in the submissions that you have, and I think the wrongdoing is identified. I understand that the Attorney‑General’s Department and the Australian Law Reform Commission they take public submissions and can act and do further investigations. I might pursue that.
HIS HONOUR: Well, they are courses, but you will have to do things outside the court system. You are either at that sort of level, administrative level, Attorney‑General’s, Ombudsman ‑ ‑ ‑
MR SHUMACK: I understand that actually the Attorney‑General’s Department can actually refer matters back to the High Court again, or back to the Federal Court.
HIS HONOUR: Well, they really cannot. They cannot. They can investigate matters and they can deal with matters outside the legal system, in effect. When I say outside the legal system, without court orders. But they cannot refer matters to us.
MR SHUMACK: Well, I actually read something along the lines of that, but, anyway, I take your point and I will pursue the matter with a submission to the Attorney‑General’s Department and the Australian Law Reform Commission and see what they can come up with.
HIS HONOUR: Well, thank you, Mr Shumack. If you just sit down, I am going to give a short judgment in the matter.
The applicant, Mr Shumack, seeks an order nisi directed to the second respondent, the Australian Industrial Relations Commission, following the termination of his employment with the Department of Environment, now Environment Australia, the first respondent, in October 1997. The Commission had refused the applicant an extension of time to bring unfair termination proceedings against Environment Australia.
The applicant seeks an order in these proceedings quashing the decision of the Full Bench of the Commission and an order that the matter be remitted to the Federal Court for determination. The first respondent, Environment Australia, refuses to consent to the remission of the matter to the Federal Court, unless an extension of time point is determined, the application before this Court being outside the time limits prescribed by the Rules of Court.
Mr Shumack was a planning officer at the Department of Environment until made redundant. His position was terminated in October 1997, having been classed as surplus to requirements. He has an ongoing grievance about the termination of employment and he alleges that his termination was discriminatory and unlawful.
On or around 30 January 2003, Mr Shumack lodged an application with the Commission under section 170CE of the Workplace Relations Act 1996, primarily seeking relief against the termination of his employment with Environment Australia. The application was lodged over five years out of the 21‑day time limit prescribed by section 170CE(7) of that Act. Mr Shumack applied for leave to lodge his application out of time. The matter came before Commissioner Deegan, who heard and dismissed the application for leave to appeal out of time.
In her reasons, Commissioner Deegan addressed each of the five principles relating to the exercise of such a discretion that were set down by the Industrial Relations Court in Brodie‑Hanns v M T V Publishing Ltd (1996) 67 IR 298. Those five principles or guidelines are: (1) an acceptable explanation for the delay; (2) action to contest the termination; (3) prejudice to the respondent; (4) merits of the substantive case; and (5) fairness as between the applicant and other employees.
Commissioner Deegan considered each of those matters. She did not accept that the five year delay could be explained by Environment Australia’s failure to provide Mr Shumack with information about the role of the Commission at the time he accepted his voluntary redundancy. She also found that Mr Shumack did not offer a real explanation for a further three months’ delay in lodging his application once he became aware of his ability to make an application to the Commission. Commissioner Deegan found that Mr Shumack took no action to contest the redundancy for five years. She also found that Environment Australia was likely to be prejudiced in the conduct of any defence to the application, as a result of the lengthy period of time that had elapsed since the termination.
The Commissioner acknowledged that because of the scant evidence before her she could not conclude that there was no merit whatever in Mr Shumack’s case; however, she said that given that he had accepted a voluntary redundancy which appeared to have been validly effected and that his claim was based on mistaken budgetary priorities which, he alleged, brought about the need for his redundancy, rather than any procedural defect or inherent unfairness in his selection as an excess officer, she concluded that Mr Shumack would have little prospects of success on the merits of the claim. The Commissioner found that issues of fairness as between Mr Shumack and other employees did not apply in that case. Accordingly, she dismissed the application on the ground that she would not grant an extension of time in which to bring the application.
Mr Shumack then applied to the Full Bench of the Commission for leave to appeal against the Commissioner’s decision. The Full Bench dismissed his application for leave to appeal. In its reasons, the Commission said it would be a most exceptional and rare case in which an applicant could expect to establish an adequate case to support the Commission allowing a lodgement beyond 21 days to cover a five year period from the date of termination to employment.
The Full Bench was not satisfied that Mr Shumack had made out an arguable case, nor was it satisfied that Commissioner Deegan had erred in her decision to refuse to make an order extending the time for lodging the application. Consequently, the Full Bench held that Mr Shumack’s application satisfied none of the grounds on which an application for leave to appeal could be granted, namely, the importance of the matter in the public interest or an arguable case going to the unsoundness of the decision subject to appeal.
Mr Shumack has now applied to this Court for an order nisi directed to the Commission seeking orders: (1) quashing the decision of the Full Bench of the Commission; (2) requiring the Commission to provide transcripts of proceedings and all other documentation on the court’s file; (3) requiring the Commission to provide reasons for recording the two transcripts; (4) requiring the Commission to provide reasons for failing to consider the applicant’s submissions on 8 July 2003; and (5) ordering Environment Australia provide to the Court the applicant’s personnel file and other information and documents relating to the applicant and his case. In his amended notice of motion, Mr Shumack seeks writs of certiorari, mandamus and prohibition against Environment Australia and the Commission and an order that the application for the writs be remitted to the Federal Court of Australia.
Mr Shumack is unrepresented and, as I indicated to him at the commencement of proceedings this morning, he is involved in a very technical jurisdiction concerning the availability of what are known as the constitutional writs that this Court has power to issue under section 75 of the Constitution. Prohibition is not a writ that could relevantly apply in these proceedings, since there is no continuing order of the Commission affecting rights. It is therefore not relevant. There is simply nothing to prohibit. Certiorari is not one of the writs listed in section 75(v) of the Constitution, but this Court has frequently held that that writ may issue in conjunction with the issue of other constitutional writs. The question then is whether mandamus should go to the respondents.
Mr Shumack’s application is directed primarily at the reasons for the termination of his position and his grievances concerning his termination. However, as I indicated to him, his application does not address the decisions of Commissioner Deegan and the Full Bench. He does not indicate, that is to say, how they exceeded their jurisdiction or failed to perform their duty. His submissions are concerned with the manner in which his employment was terminated.
There are a number of technical difficulties in Mr Shumack’s way, apart from the matters I have mentioned. Under Order 55 rule 30 of the High Court Rules, an application for writ of mandamus has to be made within two months of the date of the refusal to hear what is the subject of the mandamus application. Mr Shumack’s application for a writ of mandamus is over eight months out of time. Under Order 55 rule 17 of the High Court Rules, an application for writ of certiorari shall not be granted unless the application for the order is made not later than six months after the date of the judgment, order, conviction or other proceeding. Mr Shumack’s application for a writ of certiorari is over four months out of time.
Under Order 60 rule 6, however, this Court has power to enlarge the time for issuing those constitutional writs, but the grant of an extension of time is not automatic. A matter that is always relevant, indeed, fundamental, to a grant of an extension of time is whether or not the applicant has an arguable case.
The threshold for obtaining an order nisi is low, in that an applicant must only demonstrate an arguable case. However, on the materials before me, as I pointed out to him, Mr Shumack has no prospects of success in relation to his application for writs of mandamus, certiorari and prohibition. Consequently, his application does not disclose any arguable claim for constitutional relief against the respondents. His application seeks primarily to challenge the merits of the decision to terminate his employment and the merits of the decision of Commissioner Deegan. They are not matters that are relevant to the issue of the constitutional writs.
There is nothing that indicates that the Commission did not perform its duty. There are thus no grounds upon which the decision of the Commission could be quashed by this Court, nor are there any grounds on which the Court could make an order for the Full Bench to rehear the application. As I have indicated, the Full Bench has not exceeded its jurisdiction, and its decision appears to have been made in accordance with its statutory function under section 45 of the Act.
In these circumstances, an application for an order nisi must fail. It is unnecessary to consider whether, if I thought there was an arguable case, the matter should be remitted to the Federal Court or heard by this Court. Accordingly, in all the circumstances, I must dismiss the application. Accordingly, the application is dismissed.
The Court will now adjourn.
AT 10.39 AM THE MATTER WAS CONCLUDED
0