Brake & Service Centre Drummoyne Pty Ltd & Ors v Majik Markets Pty Limited

[1991] HCATrans 102

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl3 of 1991

B e t w e e n -

BRAKE & SERVICE CENTRE

DRUMMOYNE PTY LTD, RONALD

KENNETH SQUIRES and BETTY EMILY

SQUIRES

First Applicants

GAOCLA PTY LTD, STEPHEN THOMAS

NIHILL and BEVERLEY NIHILL

Second Applicants

ANTHONY PETER HASHAM

Third Applicant

DINGBA HOLDINGS PTY LTD, GUY

RENE and CAROL LORRAINE RENE

Fourth Applicants

JOSEPH TORREBRUNO, ANITA
CONSTANTINO and MARIE

TORRE BRUNO

Fifth Applicants

HYSFITE PTY LTD, SAMUEL RODEN,

WILLIAM RODEN and MATILDA RODEN

Sixth Applicants

EDWARDS AUTOMOTIVES PTY LTD,

KEVIN EDWARDS and CHERIE

EDWARDS

Seventh Aplicants

and

MAJIK MARKETS PTY LIMITED

Respondent

Application for removal of

cause pursuant to section 40(1)

of the Judiciary Act 1903

Brake 1 19/4/91

BRENNAN J
DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 APRIL 1991, AT 9.50 AM

Copyright in the High Court of Australia

MR J. SHAW, QC:  May it please the Court, I appear with my

learned friend, MR W.M. SCHULLER, for the

applicants. (instructed by Comino, Prassas

& Clark)

MR R.A. CONTI, QC:  May it please the Court, I appear with

MR P. DURACK, for the respondent. (instructed by

Moore & Bevins)

BRENNAN J: Yes, Shaw.

MR SHAW:  Your Honours, this is an appeal for removal of a

cause pending in the Court of Appeal pursuant to

section 40 of the Judiciary Act.

Your Honours, we rely upon the affidavit of

our instructing solicitors sworn on 7 February 1991

which is in the application book beginning at

page 4, recounting the history of the proceedings
before the Industrial Commission during which a

constitutional question involving section 109 of

the Constitution was raised by the respondents to

the present proceedings.

Your Honours, in so far as that affidavit

alleges that the applicants are currently in a

position of financial hardship in order to support

the argument that a more expeditious course would

be removal into this Court, we desire also to rely

upon some updated and expanded material going to

the circumstances of the applicants, and might I

have leave to file in Court a second affidavit of

our instructing solicitors sworn on 18 April 1991.

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BRENNAN J:  Have you seen this material, Mr Conti? Have you

any objection?

MR CONTI:  No.

BRENNAN J: Yes, very well.

MR SHAW:  Your Honours, I do not propose to trouble the

Court with the details of the affidavit, but could

I just generally draw attention to paragraph 4 of

that second affidavit which annexes an earlier

affidavit of urgency filed in the Industrial

Commission of New South Wales in reliance upon

which the Commission granted these cases expedition

in its own lists and, broadly speaking, the

material asserts that by reason of the transactions

between the applicants and the respondents, the

applicants have suffered financial hardship, are in

very difficult circumstances at the moment, and

indeed - - -

BRENNAN J:  What was the proposition, that the case can get

on in the High Court more quickly than it can in

the Court of Appeal?

MR SHAW: That by removing the constitutional question the

matter can be ultimately disposed of more

expeditiously than if the case is argued in the

Court of Appeal and then a special leave

application is made to this Court.

DEANE J:  You can call it a constitutional question

accurately, but it is not really a constitutional

question at all, is it?	We all know what the
Constitution means.	The question is whether the

two Acts are incons1stent with one another.

MR SHAW: That is the question, Your Honour, but in

Ex parte McLean a section 109 question of that kind

was regarded as removable.

DEANE J: Well, of course it is technically a constitutional

question, but in substance it is not really at all.

MR SHAW: Well, Your Honour, I would accept that there is no

general important constitutional question arising
in this case, but with respect, we would submit

there is a constitutional question concerning the

reconciliation of the federal statute and the State

statute which is of obvious importance to the

applicants and which, as we would put it,

inevitably will come before this Court even if only

by way of an application for special leave.

BRENNAN J: Well, one wonders about that in the absence of

any contract being exhibited in the material thus

Brake 3 19/4/91

far. How does one know that the contracts involved

here fall under 88F?

MR SHAW: Well, there are agreed facts, Your Honour, and one

of the agreed facts is that there is a franchise

agreement within the definition of "franchise

agreements" in the Petroleum Retail Marketing

Franchise Act, 1980.

BRENNAN J: That is not the question, is it? Not every

contract falling within that definition necessarily

is a section 88F contract.

MR SHAW:	No, that may well be so, Your Honour, but - - -
BRENNAN J:	And it has been left to surmise as to whether it

is or not; and the only question that was asked in

the special case is: can a franchise agreement be

a section 88F agreement?

MR SHAW:	Yes, that is so, but
BRENNAN J:	So we are asked to proceed on the basis that the

unspecified contracts in this case are section 88F

agreements?

MR SHAW:  The jurisdictional points are those formulated by

the respondents and they have asked the point in

that way. That is the point that is before the

Court of Appeal which will need to be argued.	It
is true, Your Honour, obviously that the constitutional point assumes a contract or
arrangement within section 88F of the State law.
That is certainly so but, in our submission,

nevertheless, the way the proceedings will go is

that unless removal is granted the Court of Appeal

will need to determine the section 109 point, and

then this Court will, we think, inevitably face

some application for special leave.

BRENNAN J:	I take it the Court of Appeal has jurisdiction to determine the jurisdiction of the Industrial
Court?

MR SHAW:  I think that is beyond doubt, Your Honour.

Certainly it has in a number of cases determined

jurisdictional questions arising from the

Industrial Commission's charter in section 88F of

the Act.

BRENNAN J:	By originating proceedings?
MR SHAW:	Yes, by summons in the original jurisdiction of

that court. Indeed, that is the course that

occurred in Stevenson v Barham which went to this
Court, although that was a mandamus case. But in a

number of other cases, too, the Court of Appeal has

Brake 19/4/91

dealt with a summons seeking prerogative relief

from the Industrial Commission.

Your Honours, might I crystallize the reasons

why, in our submission, as a matter of discretion

it would be appropriate for this Court to remove

the matter under section 40. First of all there

is in existence a reasoned and comprehensive

judgment of an intermediate court, that is, the

judgment of the Industrial Commission. In our

submission, it would not substantially facilitate

this Court's task to have an additional judgment

emanating from the Court of Appeal. I appreciate

this Court is reluctant to have matters removed

where there is no such judgment of a court below,

but that is not the situation here.

Secondly, whilst accepting the point

Your Honour Mr Justice Brennan has put to me about

the absence of any determination of questions such
as, "What is the contract?", for the purposes of

the determination of the legal questions which have

been crystallized there is no factual controversy

and there is an agreed statement of facts which the

parties were content to have for the purposes of

the debate before the Industrial Commission.

Thirdly, there is the desirability of

expedition, given that the applicants are suffering

hardship and desire to proceed with their case on

the merits before the Industrial Commission as soon

as practicable.

Next, we submit there is no good reason for

the time and expense of a further argument being

conducted in the Court of Appeal, having regard to

our apprehension that an application will be made

to this Court in any event, whatever way the matter

goes in the Court of Appeal.

If the respondent in these proceedings were

successful on the constitutional argument, the

section 109 point, then the proceedings would be

finalized by that decision. If the applicants were

successful on that point, then the judgment of this

Court would facilitate a more expeditious proceeding before the Industrial Commission.

Your Honours, they are our essential points

why the Court should act under section 40. We did

not propose going into the arguments concerning the
section 109 point. They are sufficiently set out

in the judgment of the Industrial Commission, but

in short we say that it is clear on the text of the

federal Act itself that it does not evince an

intention to cover the field. Indeed, there are

two sections of that Act, sections 8 and 24, which

Brake 19/4/91

disclose a contrary intention, namely, that the
federal law can work harmoniously with the State

statutory provisions. If the Court pleases.

BRENNAN J:  Mr Conti, we need not trouble you.

There is no particular feature of the issues

in these proceedings which warrants their removal

from the Court of Appeal into the High Court. If

any of the issues should be raised on a future

appeal pursuant to a grant of special leave, this

Court will have the advantage of the consideration

of the question by the Court of Appeal.

Accordingly, the application is refused.

MR CONTI:  If the Court pleases, we seek an application for

costs.

MR SHAW:  I cannot oppose it, Your Honour.

BRENNAN J: Refused with costs.

AT 10.01 THE MATTER WAS ADJOURNED SINE DIE

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