Shumack v Secretary Dept Environment and Heritage & Anor

[2005] HCATrans 356

[2005] HCATrans 356

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  No C14 of 2004

B e t w e e n -

PETER SHUMACK

Applicant

and

SECRETARY DEPARTMENT ENVIRONMENT AND HERITAGE

First Respondent

PRESIDENT/COMMISSIONER AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Second Respondent

Application for leave to appeal

Publication of reasons and pronouncement of orders

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 26 MAY 2005, AT 1.52 PM

Copyright in the High Court of Australia

HAYNE J:   The applicant seeks leave to appeal from a judgment of a Justice of this Court dismissing an application by the applicant for an order nisi for constitutional and other relief.  The applicant was a planning officer employed by the first respondent.  His position was terminated in October 1997.  He sought relief against that termination from the second respondent.  His claim for relief was lodged five years after the termination of the statutory time limit of 21 days.  In order for him to pursue his claim, he therefore needed to obtain leave to lodge his application out of time.  A Commissioner refused to grant leave.

The applicant then made application to the Full Bench of the second respondent for leave to appeal against the Commissioner’s decision.  That application too was dismissed.

In this Court, the applicant sought orders to quash the decision of the second respondent, to require it to provide transcripts of proceedings, and “all others documentation on file to the Court” and various other orders for the production of documents contended to be in the possession of the respondents.  The applicant amended his Notice of Motion to apply for writs of certiorari, mandamus and prohibition directed to both respondents and for remitter of these claims to the Federal Court of Australia.

In dismissing the applicant’s application, McHugh J accepted that the threshold for obtaining an order nisi is a low one but that the applicant failed to surmount it.  The application, his Honour said, was brought primarily to challenge the merits of the decision to terminate the applicant’s employment and the decision of the Commissioner refusing an extension of time within which the application might be brought.  In those circumstances it was inevitable that the application to this Court or indeed on remitter to the Federal Court would fail.  The decision of McHugh J is clearly correct.  Accordingly, the application for leave must be refused with costs.

Pursuant to rule 41.11.1 we direct the Registrar to draw up, sign and seal an order that the application is dismissed with costs.  I publish that disposition.

AT 1.55 PM THE MATTER WAS CONCLUDED