High Court of Australia|1999-04-22|Before: Hayne J, Callinan J, Gaudron J

Ex parte Joosse [1999] HCA 17; (1999) 162 ALR 128 (22 April 1999)

IN THE MATTER OF AN EX PARTE APPLICATION BY WOLTER JOOSSE & JACQUELINE YVONNE JOOSSE FOR LEAVE TO ISSUE A PROCEEDING

Application for leave to issue a proceeding; Ex parte Joosse

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

GAUDRON J. On 15 December 1998, Hayne J dismissed an application by Mr and Mrs Joosse seeking the removal into this Court of proceedings brought against them in the Magistrates Court of Victoria by the Australian Securities and Investment Commission alleging breaches of various provisions of the Corporations Law ("the Magistrates Court proceedings")[1]. The application was made pursuant to s 40 of the Judiciary Act 1903 (Cth).

In his judgment, Hayne J noted that it was alleged by Mr and Mrs Joosse "that certain Acts - described as 'The Magistrates Court Act 1996 , The County Court Act & The Supreme Court Act, The Police Act, The Corporations Law (Cth), The Workplace Relations Act and The Taxation Administration Act 1953 (Cth)' are invalid or inoperative."[2] His Honour rejected the application on the ground that "the points which it sought to agitate ... have insufficient merit to warrant the orders that are sought"[3]. It was argued that the various Acts to which his Honour referred are invalid or inoperative because "there has been an unremedied ... 'break in sovereignty' in Australia"[4].

Early this year, Mr and Mrs Joosse sought to file another Notice of Motion seeking the removal into this Court of the Magistrates Court proceedings ("the second Motion"). Removal was sought on the ground that "they arise under the Constitution or involve its interpretation between conflicts arising between legislation enacted under the Constitution and the terms of same". The legislation was identified as:

"a: The Magistrates Court Act, > > c: The Supreme Court Act, > > b: The County Court Act 1958 > > d: The Corporations Law.(Cth) > > e. The Workplace Relations Act 1996 (Cth) > > f. The Taxation Administration Act 1953 (Cth)".

It appears from the second Motion that the argument which Mr and Mrs Joosse seek to raise is again premised on notions of sovereignty.

Pursuant to O 58 r 4(3) of the Rules of the High Court, Callinan J directed, on 11 February 1999, that the second Motion not issue without the leave of a Justice. There is now before me an ex parte application for leave to issue that Motion. In his ex parte application for leave to issue a proceeding, Mr Joosse asserts that "[t]he issues raised in the [second] MOTION are totally different issues [from those raised in the Motion before Hayne J] and directly result from [his Honour's] ruling ... on 15th December 1998."

Although Mr and Mrs Joosse now seek to raise issues arising out of the judgment of Hayne J, they seek exactly the same order in the second Motion as in the first, namely, an order for the removal into this Court of the Magistrates Court proceedings. And except for the Police Regulation Act (Vic), they allege that the very same Acts are invalid. Both in substance and in form, the second Motion seeks to re-agitate the very question determined by Hayne J, namely, whether the Magistrates Court proceedings should be removed into this Court. That being so, the application for leave to issue the second Motion must be dismissed.

[1] [1998] HCA 78; (1999) 73 ALJR 232; 159 ALR 260.

[2] [1998] HCA 78; (1999) 73 ALJR 232 at 233; [1998] HCA 77; 159 ALR 260 at 261.

[3] [1998] HCA 78; (1999) 73 ALJR 232 at 237; [1998] HCA 77; 159 ALR 260 at 266.

[4] [1998] HCA 78; (1999) 73 ALJR 232 at 234; [1998] HCA 77; 159 ALR 260 at 263.

Magistrates Court Act 1996

Administration Act 1953

Magistrates Court Act 1996

Administration Act 1953

Ex parte Joosse [1999] HCA 17; (1999) 162 ALR 128 (22 April 1999)

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Judgment (16 paragraphs)

Ex parte Joosse [1999] HCA 17; (1999) 162 ALR 128 (22 April 1999)

Legislation Cited (8)

Cases Cited (2)