Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67

HIGH COURT OF AUSTRALIA

McHUGH J

RE VICE PRESIDENT McINTYRE, FIRST RESPONDENTS

SENIOR DEPUTY PRESIDENT HARRISON

AND COMMISSIONER HARRISON

(MEMBERS OF THE FULL BENCH OF

THE AUSTRALIAN INDUSTRIAL RELATIONS

COMMISSION)

THE COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT

(DEPARTMENT OF DEFENCE)

EX PARTE JOSEPH TONI MARKS APPLICANT

Re Commonwealth of Australia & Anor; Ex parte Marks

[2000] HCA 67

14 December 2000

C17/2000

ORDER

1. The notice of motion is dismissed.

2. No order as to costs.

Representation:

No appearance for the first respondents

T M Howe for the second respondent (instructed by the Australian Government Solicitor)

Applicant appeared in person

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Re Commonwealth of Australia & Anor; Ex parte Marks

Practice and procedure – Extension of time – Factors to be considered.

Constitutional law – Constitutional relief – Jurisdictional error – Whether Full Bench of Australian Industrial Relations Commission made a jurisdictional error – Role of Full Bench on appeal.

Practice and procedure – Costs – Whether s 347 of the Workplace Relations Act 1996 (Cth) applied – Whether proceedings commenced "vexatiously or without reasonable cause".

Constitution, s 75(v).

Workplace Relations Act 1996 (Cth), ss 45, 347.

High Court Rules, O 55, r 17; O 55, r 30; O 60, r 6

1. McHUGH J. The applicant seeks an extension of time in which to apply for an order nisi. If the extension is granted (or not needed), he seeks remittal of the application for an order nisi to the Federal Court of Australia.

Background

1. The second respondent, the Department of Defence ("the Commonwealth"), hired the applicant as a "Trainee Administrative Services Officer" on 15 July 1996. The applicant was appointed as an "Administrative Services Officer" on 6 February 1997. On 21 July 1997, the Commonwealth informed the applicant by letter that his employment was to be terminated effective from 20 August 1997. As it transpired, the Commonwealth terminated the applicant's employment effective from 13 August 1997. 2. Pursuant to s 170CE of the Workplace Relations Act 1996 (Cth) ("the Act"), the applicant applied for relief against the termination of his employment. On 2 October 1998, Commissioner Jones ("Jones C") of the Australian Industrial Relations Commission ("the AIRC") determined that the applicant came under s 170CB(1) of the Act because he was a Commonwealth public sector employee but that: