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

The applicants, Brake & Service Centre Drummoyne Pty Ltd and others, sought the removal of a cause from the Court of Appeal to the High Court of Australia pursuant to section 40(1) of the *Judiciary Act 1903* (Cth). The dispute arose from proceedings before the Industrial Commission of New South Wales, where the respondents had raised a constitutional question concerning the inconsistency of two Acts under section 109 of the Australian Constitution. The applicants argued for removal on the grounds of financial hardship and the potential for more expeditious resolution of the matter in the High Court.

The primary legal issue before the High Court was whether the cause, involving a question of constitutional law under section 109 of the Constitution, should be removed to the High Court for determination. The applicants contended that such a question, even if it concerned the interpretation of the inconsistency between two statutes, was a "constitutional question" within the meaning of section 40 of the *Judiciary Act*, and that its removal would lead to a more efficient disposal of the matter than proceeding through the Court of Appeal and potentially requiring a subsequent special leave application to the High Court.

The Court considered the nature of the question raised, with Justice Deane noting that while technically a constitutional question, its substance related to statutory inconsistency rather than a fundamental aspect of the Constitution itself. Nevertheless, the applicants relied on precedent, such as *Ex parte McLean*, where similar section 109 questions had been considered removable. The applicants' argument for removal was bolstered by updated material demonstrating their financial hardship, suggesting that an expedited hearing in the High Court was necessary to avoid further detriment.