Twining v Australian Public Service Commission

[2007] HCATrans 87

[2007] HCATrans 087

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C5 of 2006

B e t w e e n -

ANTHONY ALBERT TWINING

Applicant

and

AUSTRALIAN PUBLIC SERVICE COMMISSION

Respondent

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 1 MARCH 2007, AT 9.25 AM

Copyright in the High Court of Australia

KIRBY J:   As was the applicant’s application to the Federal Magistrates Court for judicial review of the decision of the respondent to terminate the applicant’s employment without a further extension – there had already been one – of the period of probation of the applicant as an employee of the respondent, this application for special leave to appeal to this Court against the decision of the Federal Court is out of time.  We will proceed for present purposes, however, as if an extension of time might be granted.

Although the application to the Federal Magistrates Court was an interlocutory application for leave to apply out of time, both that Court and the Federal Court gave some consideration to the merits of the applicant’s substantive case.

The Federal Court, in the course of its consideration of the merits, said this:

“The material in the appellant’s own affidavits shows that at a time in early 2005 when, albeit in ignorance, he believed that he had no firm legal basis for obtaining a remedy in the courts, he had quite gratuitously, and offensively, abused two officers of the respondent, including the delegate, who were senior to him and quite inappropriately broadcast to other people his offensive and rather unrestrained criticisms of them.  The appellant says he was upset, ‘out of his mind with worry’, about his position at the time.

Be that as it may, it is quite clear that it would be irresponsible to put him back in the Programs Group in which he was employed.  That means that about 35 to 40 of the 130 positions in the respondent’s organisation would not be available to him.  The other officer who he calumniated was the head of the Corporate Group, which comprises another 35 or 40 people.  Much less offensive, but quite inappropriate remarks were also directed to the head of the respondent Commission.

If time were extended and if the appellant were to succeed, it would be in that environment that his reinstatement on probation for a period of about a month would occur.  At the end of the month, if not before, a decision would have to be made about whether overall his conduct and behaviour had been such that he should be taken on permanently.  To the extent that there would be difficulty about fitting him in, it would, by reason of his own conduct, be very greatly magnified.  Notwithstanding the public interest in decisions affecting the termination of employment of persons in the public sector being regularly and lawfully made, it seems to me that, in the circumstances, there would be likely such a disruption of public administration that the public interest dictates refusal of an extension of time.”

The relief sought by the applicant is discretionary relief.  His written case in this Court does not demonstrate any discernable error in the exercise of the Federal Magistrate's discretion, or error of any kind on the part of the Federal Court in dealing with the application to that Court.  Furthermore, the findings of the latter which we have set out make it clear that even if this Court were to grant special leave, an appeal would be futile.  Accordingly there is no point in extending the time for an application for special leave to appeal.

Because the applicant is unrepresented, this application for special leave falls to be dealt with in accordance with rule 41.10 of the High Court Rules 2004. Pursuant to rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application.

I publish that disposition signed by Justice Callinan and myself.

AT 9.29 AM THE MATTER WAS CONCLUDED