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. The consequence of acceptance of the point made would be that there was no termination effective at law. The matter is detailed further in some written submissions by Mr Fischer headed "Applicant's summary of argument" and filed on 23 August 1996. Paragraphs 11, 12 and 13 of Pt III state: That power then resides only in the Commissioner. That is clear from the provision of section 47(6)(c), which provides that the Secretary is to give written notice to the Commissioner that the Secretary does not intend to confirm a given appointment. The Commissioner's power in this respect is not delegated. In this case the Delegate of the Secretary purported to use a power he did not possess, and the determination is therefore invalid. The Court erred in accepting that the Appellant's employment was validly terminated for the purposes of the Act [that is to say the Public Service Act] which finding underlies the finding below that the termination was for a valid reason. However, to accept that construction of s 47 would not have resolved the issues Mr Fischer raised under Div 3 of Pt VIA of the Industrial Relations Act, and which were dealt with in the decision of the judicial registrar and in the judgments of Wilcox CJ and the Full Court. The case under that statute necessarily proceeded on the footing that the termination having taken place and being otherwise legally effective, there were questions whether there had been contravention of Div 3 of Pt VIA. Accordingly, as this Court has already said, the point now sought to be argued could not have resulted in orders in Mr Fischer's favour under Div 3, Pt VIA, of the Industrial Relations Act. There is no point in further agitating the point in this Court. Accordingly, leave under O 58, r 4(3), is refused.