Marks v Vice President McIntyre & Ors C1/2001 [2002] HCATrans 227 (3 May 2002)

IN THE HIGH COURT OF AUSTRALIA

Registry

Canberra No C1 of 2001

B e t w e e n -

JOSEPH TONI MARKS

Applicant

and

VICE PRESIDENT McINTYRE, SENIOR DEPUTY PRESIDENT HARRISON AND COMMISSIONER HARRISON (Members of the Full Bench of the Australian Industrial Relations Commission)

First Respondent

COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF DEFENCE)

Second Respondent

Application for leave to appeal

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 3 MAY 2002, AT 10.37 AM

Copyright in the High Court of Australia

MR J.T. MARKS appeared in person.

MR D.P. O'DONOVAN: Your Honours, I appear for the second respondent. (instructed by the Australian Government Solicitor)

GAUDRON J: I have a certificate from the Deputy Registrar who certifies that she has received a letter from the Australian Government Solicitor on behalf of the Australian Industrial Relations Commission whose members have been named as respondents in this application advising that the Commission will not be represented at this hearing and will abide by any order of the Court save as to costs.

KIRBY J: This is a case of leave, not special leave? That is correct, is it not?

MR MARKS: Yes, your Honour, this is an application for leave to appeal.

KIRBY J: But it is a case where you are very, very much out of time and, as I - - -

GAUDRON J: No, he is not, not in this.

KIRBY J: You are within time for the application for leave against Justice McHugh's order, are you?

MR MARKS: That is correct, your Honour.

KIRBY J: I see.

MR MARKS: There was an argument that I would be out of time - - -

KIRBY J: You were very out of time in bringing the proceedings to this Court, to Justice McHugh from the Australian Industrial Relations Commission.

MR MARKS: Well, there was an argument that that was not necessarily so.

KIRBY J: I thought it was more than a year. It was not a matter of a day or so. Anyway, we will hear your argument on it.

MR MARKS: This is an application for leave to appeal against the interlocutory order of Justice McHugh of 14 December 2000 dismissing my motion seeking constitutional relief. Perhaps at this point it may be useful to outline the two issues for which I initially sought leave to appeal to the Full Bench of the Australian Industrial Relations Commission and subsequently sought constitutional relief in respect of that decision to the Full Bench in refusing me leave to appeal these two issues. The two alleged errors by Commissioner Jones arose - - -

KIRBY J: But do you not have to show the errors of Justice McHugh? That is what we are concerned with. We are hearing an application for leave to appeal from him, not from Commissioner Jones.

MR MARKS: Yes, your Honour, but it is probably easier to start from the beginning - - -

KIRBY J: You have only 20 minutes.

MR MARKS: - - - to look at the issues which the Full Bench looked at from the decision of Commissioner Jones which later arose before Justice McHugh when I sought leave - when I sought to remit the matter to the Federal Court for determination and hearing.

KIRBY J: You take your own course, but you have only a short time.

MR MARKS: The two alleged errors by Commissioner Jones which arose before the Full Bench of the Industrial Relations Commission, first I said there were differences in the reasons listed in a show cause minute dated 21 July 1997 and the reasons contained later for terminating my employment in a memo handed to me after I was sacked on 13 August 1997. The 10 reasons listed for considering my termination of employment were as per the document on page 47 of the application book - the documents here - and the final 10 reasons given for my termination of employment were as per the document on page 48 of the application book - two separate documents.

A quick perusal of the two sets of reasons for my - shows the extent of differences. For example, the minute of 13 August lists as a reason for my dismissal an "unwillingness . . . to apply" myself to tasks assigned to me, but there is nothing about this in the minute of 21 July, which was the earlier minute. Likewise, a reason was given for terminating my employment because I showed "little enthusiasm or interest in the tasks assigned to" me, but, again, there is nothing in the minute of 21 July about this. Likewise, a difficulty in me "remaining focussed on specific tasks assigned to" me. Again, nothing in the minute of 21 July about this. Again, a lack of computer skills. Likewise, nothing in the minute of 21 July about it.

As well, there were changes in the scope of reasons between the two minutes. For example a "lack of understanding of protocol" in the minute of 21 July was changed in the minute of 13 August to an inability for me "to develop good working relations with other officers". Another example, poor formatting listed in the - I will say it again, poor formatting due to a "lack of understanding of computer applications" in the minute of 21 July was changed to "a poor understanding of computer applications" in total in the minute of 13 August.

In respect of this ground, it is well established by a long list of Federal Court authority that denying an Australian Public Servant employed under the Public Service Act a full opportunity to answer all the matters which swayed the decision-maker to terminate his employment or render this termination ineffectual. In my instance, it is abundantly clear that I was not given opportunity to answer the further and added reasons given for my dismissal and was thus denied - - -

GAUDRON J: Let us assume for the moment, Mr Marks, that Commissioner Jones failed to detect an error in the departmental approach.

MR MARKS: Commissioner Jones said that it would not have affected his decision.

GAUDRON J: Yes. Well, let us assume he was wrong. That does not really help you, does it, because what you have to establish is not only that he got it wrong, which we are prepared to assume, but that the Full Court of the Industrial Relations Commission fell into jurisdictional error in not granting you leave to appeal.

MR MARKS: I am going to get to this in a minute, your Honour.

GAUDRON J: Yes, very well.

MR MARKS: It is the way the Full Bench looked at this question that is the point in issue.

GAUDRON J: Yes.

MR MARKS: There was a decision in Miller, and later adopted in Wilson and in Pacific Coal, that the basis of granting leave to appeal, whether it is seriously arguable that the Full Bench erred in looking at this question of whether Commissioner Jones erred.

GAUDRON J: Yes, that may be true that it erred but - - -

MR MARKS: No, arguably erred.

GAUDRON J: Arguably erred - but, for relief under section 75(v) of the Constitution it has been repeatedly held by this Court they must err in relation to their jurisdiction either by exercising a jurisdiction they do not have or refusing to exercise a jurisdiction that they do have.

MR MARKS: Yes, your Honour. I am getting to that later.

GAUDRON J: Yes.

MR MARKS: The second issue that arose was whether there was non-compliance with pre-termination procedures in a certified enterprise agreement in place and whether there was non-compliance and whether this would render the dismissal unfair or unjust or unreasonable. On my behalf it was argued before Commissioner Jones of the respondent's referral to section 47 of the Public Service Act. That Act gives certain people power to do certain things. However, section 4 and 5 of the Workplace Relations Act applies to a person employed under the Public Service Act. So any decision under section 47 must be looked at as subject to the Workplace Relations Act.

This means that the provisions of the Public Service Act must be read subject to the provisions of the later Act. Therefore, using this argument, it is unreasonable to apply the provisions in the applicable enterprise agreement and certify in accordance with the Workplace Relations Act - it is unreasonable not to apply this from the date of my changed employment status from 6 February.

Even if there is a dispute between the two Acts, the Workplace Relations Act and the Public Service Act, the terms and conditions of my employment are - they are sections 170ZE, Parts 4 and 5 in the Workplace Relations - section 30ZE clearly state that the Workplace Relations Act - that is a certified enterprise agreement takes precedence.

Turning to the relevant considerations of what a court, or this Court should consider when deciding whether to grant leave to appeal against interlocutory order, I refer this Court to the case of Jarrett v Seymour. Turning to the relevant considerations of what it - - -

GAUDRON J: Sorry?

MR MARKS: First, looking at page 64 of Jarrett v Seymour - - -

KIRBY J: We do not have a lot of time. Just tell us what it is. What does it say?

MR MARKS: The question whether the Court should grant leave to appeal is whether the undoubted outcome of a successful appeal from his Honour's order - in regard to this, if I am successful in the matter and on remittal to the Federal Court, based on the Federal Court reasoning in Miller v Australian Industrial Relations Commission of 4 May 2001 which followed the High Court decision in Coal and Allied, I would succeed before that court. On further remittal to the Full Bench of the Australian Industrial Relations Commission, the Full Bench, following the decision in Miller and the recent Full Bench decision in Wilson of 9 November 2001, I would almost certainly be granted leave to appeal.

KIRBY J: Mr Marks, I would like your help on this. You only have to get leave and, therefore, your hurdle is not as high as it normally is with special leave. You have to get leave. Your problem is that you are seeking leave from Justice McHugh's order, therefore, we have to see whether Justice McHugh made any error. We have to focus on that. Let me just ask you this: is your argument that the Full Bench of the Industrial Relations Commission erred with respect to its jurisdiction by failing to detect the jurisdictional error in the decision of Commissioner Jones who, in turn, failed to detect a want to accord you natural justice at the level of your employer? Is that what you are putting to us, that it was the failure of the Full Bench to exercise its jurisdiction of review of Commissioner Jones by failing to detect his failure to detect a want of jurisdiction in your employer to dismiss you without giving you an opportunity to answer?

MR MARKS: No, that is not so, your Honour. I am arguing that the correct basis for granting leave to appeal by the Full Bench is as per the decision in Miller v Australian Industrial Relations Commission which followed the decision of Coal and Allied - - -

GAUDRON J: Yes.

MR MARKS: - - - and the basis of that was it differentiated between the nature of the number of discretions which the Commission makes before reaching its final decision. Some of the decisions are based on whether it is reasonably open on the evidence, in which case no jurisdictional error would apply if the Commission erred, and, secondly, there are other discretions which are, basically - and to use the words in Miller - whether it is seriously arguable the Full Bench erred in coming to the decision that the Commissioner had not erred.

GAUDRON J: That is not the test that was set down by this Court. If that is what Miller says and - - -

MR MARKS: They based that on the decision of Coal and Allied.

GAUDRON J: I know they may have based it, but Justice McHugh set out in his reasons, did he not, the test that this Court had laid down in Coal and Allied, and it is at page 74?

MR MARKS: Could you refer me to the paragraph, your Honour?

KIRBY J: It is up the top of the page. It is a quote from Coal and Allied, the majority reasons in Coal and Allied, page 74 of the application book. He quotes what Chief Justice Jordan said: to misunderstand "the nature of [its] jurisdiction", to misconceive its duty, to fail "to apply itself to the question which" is prescribed by the Act, or to misunderstand "the nature of the opinion which it [was] to form".

MR MARKS: It is my submission that this is what the Court did in respect of the two issues which I have previously outlined.

GAUDRON J: Very well, but how did it do it? You see, what was said in Coal and Allied, essentially, was that the Full Bench of the Commission had to consider whether there was error. It did not have to get its answer to that question right, but it had to consider whether there was error, and if it did not consider that, then it was jurisdictional error.

KIRBY J: Now, this is a very, very stringent test. I dissented in Coal and Allied, but that is the decision of the Court and it is a very stringent test. You have to, basically, prove that the Full Bench did not exercise its jurisdiction because it did not address itself to the thing that was before it. It is a very stringent test.

MR MARKS: Well, applying the reasoning - borrowing from the words in Miller in paragraph 48 - - -

GAUDRON J: No, do not worry about Miller. It is Coal and Allied you have to worry about.

MR MARKS: Well, the argument in Miller was that what the Commission was bound to take into account was a discretion conferred upon Commissioner Jones of the secondary kind described in Coal and Allied, paragraph 19. That was the first observation. The second observation was, although technically it was - - -

KIRBY J: You love Miller. You do not seem to like Coal and Allied. I can understand that feeling but we are both bound by Coal and Allied.

MR MARKS: Well, Miller followed the decision of Coal and Allied as it related to the - - -

GAUDRON J: Well, I am not too sure.

MR MARKS: Well, the decision in Miller has not been followed and adopted by the Full Bench of the Commission in - - -

KIRBY J: Tell us, in a word, why you say the Full Bench failed to exercise its jurisdiction - not that it got it wrong, but that it failed to exercise its jurisdiction. What is your contention? Forget Miller, forget your papers, just tell us what you say is the error of jurisdiction.

MR MARKS: I will just make a quick reference.

KIRBY J: This is crucial because unless you can show that, you cannot show that Justice McHugh erred and you cannot get leave.

GAUDRON J: Not that he erred, that it is arguable that he erred. You have only got to show an arguable case.

MR MARKS: Well, you wish me to address why I think Justice McHugh erred, or you do you want me to address why I think the Full Bench erred?

GAUDRON J: No. At this stage, if you can show that it is arguable that the Full Bench erred, you will show at the same time that it is arguable that Justice McHugh erred, so - - -

MR MARKS: Well, a couple of secondary considerations. Looking at the decision in Pacific Coal v Smith & Ors - I think it is relevant to the decision here - there was very little factual analysis on the basis of why the Commission did not take the two issues - there is no reference of why they chose or preferred one case to the other. Furthermore, they said they considered Commissioner Jones' decision, but I think this is the wrong test. They have a duty to determine for themselves based on the - and ascertain, which means investigate. It is akin to if Commissioner Jones was asked to determine whether this building is a courthouse or a warehouse and the Full Bench on appeal said, "Well, he considered it, and it is a warehouse." They did not seriously look at it, but the basis on Miller, based on the - following the decision in Coal and Allied is questionable whether it is seriously arguable that the Commissioner, at first instance, erred.

In answer to the leave to appeal, the Commission should have ascertained for itself whether it is seriously arguable that the Commissioner had erred in fact or law in arriving at his decision. If he did not, this would be a mistake going to show jurisdictional error.

GAUDRON J: But you have to say that the Commission did not consider that issue, not that they did not get that issue right, but that they for themselves did not consider whether it was arguable

MR MARKS: Well, they did not - well, on the score of whether the enterprise agreement was breached, there is no mention at all in their statement of reasons - there is not even a mention of my changed employment status from 6 February - and on the score of whether I was given an opportunity to respond to the further and added reasons for my dismissal, all they said is Commissioner Jones looked at it. They did not ascertain for themselves.

This is like, again, the Commission being asked to say whether - the Full Bench being asked to say whether Commissioner Jones erred in fact or law in saying this building is a warehouse and all the Full Bench was saying that he considered it. There is no indication there whatsoever. All they did was say, "No, the Commissioner considered it." And, again, they made no mention at all or determined whether the enterprise agreement had been breached or not, therefore, they failed to exercise jurisdiction, clearly.

GAUDRON J: Very well. Now, your time is up Mr Marks. Mr O'Donovan.

KIRBY J: Mr O'Donovan, remind me of the nature of the appeal to the Full Bench of the Commission. It is not a merits appeal?

MR O'DONOVAN: No.

KIRBY J: Is it a - - -

MR O'DONOVAN: Appeal by way of rehearing, I think, is - - -

GAUDRON J: Yes, but this is an application for leave.

MR O'DONOVAN: - - - what was established in Coal and Allied.

KIRBY J: And he was very much out of time. He was 17 months out of time, was he not?

MR O'DONOVAN: No, he was briefly out of time in relation to the appeal to the Full Bench and was granted an extension of time.

KIRBY J: I see. He was 17 months out of time before Justice McHugh.

MR O'DONOVAN: Yes, that is correct, but he had an argument that the time limits did not apply to him given the nature of the tribunal from which he was making his application, and Justice McHugh did not deal with that issue at all.

KIRBY J: No. Well, he did not come to that in view of the view he took of the jurisdictional error applying Coal and Allied.

MR O'DONOVAN: Yes, that is right.

KIRBY J: Now, where do you point, in the reasons of the Full Court, that demonstrates that the Full Court applied itself correctly to its jurisdiction vis-à-vis Commissioner Jones?

MR O'DONOVAN: In relation to each of the grounds of appeal they went through it.

KIRBY J: They went through each ground and deal with them seriatim?

MR O'DONOVAN: Yes, and at the conclusion of the discussion, or through the course of the discussion, said, "We find no error." So essentially they were asking themselves the question, "Was there an error disclosed?" and they said, on the basis of the ground alleged, there was no error disclosed, which was precisely the question - indeed, it is even a higher test than was required.

KIRBY J: Is there anything in the majority opinion in Coal and Allied to the effect that even if the primary decision-maker in the tribunal makes a serious error of jurisdiction, the failure to find error in that regard is not itself an error of jurisdiction if the appellate tribunal addresses itself to whether error has been shown at first instance. In other words, once you have the poison of error of jurisdiction in the well, does it carry forward to the Full Bench?

MR O'DONOVAN: Certainly there is no reference to it in the decision in Coal and Allied. They were only concerned with the question raised by section 45 and whether or not the Full Bench had addressed the correct question. In relation to the errors raised by Mr Marks, in my submission, the errors that he alleges at first instance are not errors going to jurisdiction.

KIRBY J: What about his argument about the want of the decision-maker to give him natural justice? That is traditionally an error of jurisdiction on the part of the decision-maker.

MR O'DONOVAN: Yes.

KIRBY J: Query whether that then infects the decision of the primary decision-maker in the tribunal for failing to detect that error. Do you see what I am getting at?

MR O'DONOVAN: Yes.

KIRBY J: That once you have a flaw of jurisdiction, does that carry right through or is that thread lost at a certain point?

GAUDRON J: The question was, was it harsh, unjust, or unreasonable.

MR O'DONOVAN: Yes.

GAUDRON J: It was a termination of employment case which does not really raise jurisdictional issues as such, I would have thought.

KIRBY J: But if you do not - - -

GAUDRON J: But the question whether it was harsh, just or unreasonable necessarily involved whether Mr Marks had notice of the matters which were taken into account in his dismissal. So you are not talking about jurisdictional error in the traditional sense, I think, but - - -

MR O'DONOVAN: No. Well, it may be that he may have had a separate right of judicial review in relation to the breaches of the Public Service Act, but that was not a question before the Commission. The question before the Commission was, was it harsh, unjust or unreasonable, and there is not any doubt that they addressed that question.

Now, in relation to whether or not you can get some constitutional writ form of relief in relation to a breach of natural justice, in my submission, that would relate only to the forum immediately below where the issue is raised.

KIRBY J: That is not before us now. All that is before us now is relief against a leave to appeal from Justice McHugh for suggested arguable error in failing to give relief against the Industrial Relations Commission for failing to address itself to its jurisdiction. You say the answer to that is apply Coal and Allied and each of the grounds of appeal to the Full Bench was addressed and whether they got it right or wrong, they certainly addressed themselves to their jurisdiction.

MR O'DONOVAN: Yes, that is correct.

KIRBY J: Yes.

GAUDRON J: Do you have anything in reply to that, Mr Marks?

MR MARKS: Yes, very quickly. The nature of the Commission's inquiry was whether it was reasonably open that Commissioner Jones came to his conclusion, but in respect that is not the grounds on which the Full Bench determines whether leave to appeal should be granted.

GAUDRON J: No, they considered whether he was right or wrong.

KIRBY J: They went through each of your grounds, each one of them, and dealt with it seriatim. It is in their reasons.

MR MARKS: They said they did, but my submission is just by saying they did, without giving any factual accounts of how they did it and why they ruled in a particular way, is a jurisdictional error. They are bound to ascertain - that is make up their own mind. They did not. They just said - - -

GAUDRON J: But they did.

MR MARKS: All they said in respect of one - well, one they did not even mention at all except to say in the summation they considered all the grounds and in respect to them the Commissioner did not err. But on one all they said - this is at application book page 40 about line 25 onwards - what Commissioner Jones did was okay - this is talking about whether I had full opportunity to respond to the added reasons given for my termination:

In any event, as we have earlier said, it is clear from Jones C's decision that he considered the matters raised in s.170CG(3) of the WR Act which included whether Mr Marks was given an opportunity to respond to any reason related to his capacity or conduct.

That is not the test. The test for jurisdictional error is whether they consider this for themselves. It is the same as - - -

GAUDRON J: Well, it depends what you were arguing.

MR MARKS: I was arguing that I should have been given an opportunity to respond to the changed reasons for my termination and because I was not, this denial of natural justice under a consideration of 170CG(3)(e) of the Workplace Relations Act is a relevant factor. Going on the decision and conclusions in Wilson, this would render the termination unfair, unjust and unreasonable, this factor by itself.

As I mentioned before, it is akin to if the Commission was asked to say, "Well, did Commissioner Jones consider that this building was a warehouse or a courthouse? Because he said it's a warehouse, I consider my job done." That is not the test, to note whether he considered it. The test is for them to make up their own mind, and they did not. All they did was just noted that Commissioner Jones had done it. They made no express findings for themselves.

KIRBY J: They addressed themselves to your grounds of appeal. They considered each of those grounds one by one. They came to their conclusion and they expressed it and they gave effect to it in an order.

MR MARKS: They said that - - -

KIRBY J: It does look as though they have addressed themselves to it, and that is all that is required by Coal and Allied.

MR MARKS: But Miller adopted - - -

KIRBY J: They do not have to get it right. This is a rule of judicial restraint, that this Court will not intervene to turn constitutional writs into merit appeals. That is a principle.

MR MARKS: But the decision was completely unreasonable in relation to the decision in Moore because it is jurisdictional - because Wilson - - -

GAUDRON J: But, you see, Mr Marks, what used to be the Conciliation and Arbitration Act then, I think, became the Workplace Relations Act and is now the Industrial Relations Act - or was the Industrial Relations Act, it is now the Workplace Relations Act, gives very limited avenues of appeal. That is a conscious decision by the Parliament. The remedies under section 75(v) are not remedies by way of appeal. They are remedies directed to ensuring that officers of the Commonwealth, including the Commission, act within their jurisdiction. They are not appeals. Anyway, I think you have exhausted your time, I am sorry.

Mr O'Donovan, we did cut you short a bit. We are of the view that special leave should be refused for reasons which I will announce shortly. I notice you had an application for costs. We would not be minded to grant that application unless you could persuade us of the terms of the statute and we cut you short. I do not know if you wish to - - -

MR O'DONOVAN: On the issue of costs, the only thing that I wish to say is Mr Marks has been pursuing this case for five years.

GAUDRON J: That is not the point of the statute.

MR O'DONOVAN: At not inconsiderable expense to the taxpayer.

GAUDRON J: That is not the point.

MR O'DONOVAN: Indeed.

GAUDRON J: People are entitled to pursue whatever legal rights the law allows them.

MR O'DONOVAN: That is right.

GAUDRON J: And whether it is at the expense of the taxpayer or not is irrelevant.

MR O'DONOVAN: Yes.

GAUDRON J: That is the rule of law.

MR O'DONOVAN: The question really for this Court is whether or not he has behaved unreasonably in bringing this application and, in my submission, the - - -

KIRBY J: Let me ask you this: it is the Workplace Relations Act that puts a limitation on the provision of costs.

MR O'DONOVAN: Yes.

KIRBY J: Does that govern the disposition by this Court of costs in this Court or is that governed by the Judiciary Act?

MR O'DONOVAN: No. My understanding is that on present authority, even in applications of this kind are considered to be restrained by the limitations in the Workplace Relations Act.

GAUDRON J: That is not entirely correct, but it is a question of what the right in issue is. Anyway, you wish to assert that it is unreasonable to pursue - - -

MR O'DONOVAN: In the circumstances I think that the decision of Justice McHugh made it very clear that none of the matters raised in his draft order nisi raised any jurisdictional question. He pointed to immediate High Court authority which undoubtedly resolved the question, yet he has pursued an application here and has been unable to sustain any credible argument that he has that there was any kind of jurisdictional error. On that basis, our submission is that he has pursued the application without reasonable cause, although it will be only the first time after a long career of pursuing this matter for Mr Marks, I think it would be appropriate in the circumstances to find that he did pursue this particular application without reasonable cause given the persuasiveness of Justice McHugh's judgment and the clarity of the findings there.

KIRBY J: That judgment was founded in Coal and Allied.

MR O'DONOVAN: Yes, that is right.

GAUDRON J: Mr Marks, we do not need to hear you on costs.

Mr Marks seeks leave to appeal from a decision and order of Justice McHugh dismissing his application for an order nisi for certiorari and mandamus directed to members of the Full Bench of the Australian Industrial Relations Commission. The Full Bench had refused Mr Marks leave to appeal from a decision of Commissioner Jones who had dismissed an application under section 170E(1) of the Workplace Relations Act (Cth) with respect to the termination of Mr Marks' employment by the Department of Defence.

This Court has repeatedly held that relief by way of constitutional writ under section 75(v) of the Constitution is available only in the case of jurisdictional error. Relevantly, it is available in the present case only if the Full Bench exercised a jurisdiction it did not have or refused, whether actually or constructively, to exercise a jurisdiction it did have.

Because the Full Bench heard and determined the applicant's application for leave to appeal, his application for relief under section 75(v) of the Constitution can only succeed if he can establish constructive failure to exercise its jurisdiction by showing that it misconceived its role, misunderstood the nature of its jurisdiction, misconceived its duty or failed to apply itself to the question whether leave to appeal should have been granted or otherwise misunderstood the nature of the opinion it was to form. None of these matters is established by simply showing that the Full Bench failed to detect error on the part of Commissioner Jones, which in essence is what the applicant seeks to do.

We note that the Full Bench considered each of the grounds of appeal which were advanced before it by Mr Marks and satisfied itself that there was no error in relation to Commissioner Jones' decision. Whether there was or was not error is not to the point. The question is whether or not the Full Bench asked itself whether there was or was not error. We are satisfied that there is no arguable case of jurisdictional error on the part of the Full Bench of the Commission. That being so, the other matters which the applicant seeks to raise by his application are irrelevant to the outcome of his application for leave to appeal.

Leave to appeal is refused. A represented person may not have sought leave to appeal from the decision of Justice McHugh but his decision raised technical issues and technical questions of law and it is not appropriate, I think, to categorise a wish to pursue those issues by a person who is unrepresented as unreasonable.

AT 11.15 AM THE MATTER WAS CONCLUDED