Fischer v Commonwealth

High Court of Australia Gummow J Fischer v Commonwealth

Gummow J.

This litigation was instituted by an application by Mr Fischer under s 170EA of what was then the Industrial Relations Act 1988 Cth. In the application to the Industrial Relations Court of Australia, Mr Fischer sought an order declaring that the termination of his employment contravened Div 3 of Pt VIA of the Act, reinstatement, compensation and such other orders as would restore him to the same position he held before the termination. The matter came before a judicial registrar who held against Mr Fischer. The Chief Justice of the Court subsequently upheld that decision. An appeal to the Full Court of the Court was dismissed. Ultimately, this Court dismissed the application for leave to appeal saying:

The point which the applicant seeks to argue on appeal cannot result in orders in his favour under Div 3, Pt VIA of the Industrial Relations Act 1988 Cth as sought in his originating process. It follows that the proposed appeal enjoys no prospect of success.

Mr Fischer moves ex parte and seeks leave to issue further process which would have the result of further consideration of the matter in this Court. This morning he seeks leave to issue such process, the leave being sought pursuant to O 58, r 4(3), of the High Court Rules. Leave should be refused because further litigation in this Court would be futile.

The nub of the matter is the point Mr Fischer says he has as to the construction of s 47 of the Public Service Act 1922 Cth and the effectiveness in law of the steps taken in apparent reliance upon that section by a Delegate of the Secretary. There may have been other legal avenues open to test the question of whether there was an error of law in the decision taken by the Delegate of the Secretary under s 47. I say nothing of that, nor as to the correctness of Mr Fischer's construction of s 47. This is not an appropriate forum to determine those questions. The point is that the applicant seeks to agitate now, in this Court, that particular construction of s 47.