Textile, Clothing & Footwear Union of Australia v Bellhop

REASONS FOR JUDGMENT 1 The matter before the Court is a notice of motion filed on 1 July 1999 in which the applicant, the Textile Clothing & Footwear Union of Australia, sought relief in respect to two issues. The first issue concerns the question of amendments to the schedules to the application and the statement of claim. The second issue concerns a question of the striking out of various paragraphs of the respondents' defence. The notice of motion came on for hearing at 2.15 pm this afternoon. Mr S. Moore of counsel appeared for the applicant. The third respondent appeared for himself. Mr Murphy, a solicitor, who is in the process of ceasing to act for the first and second respondents appeared out of courtesy to inform the Court of that fact and also to inform the Court that he had no instructions which enabled him to put any submission this afternoon. 2 The application to amend the schedule to the application and the schedule to the statement of claim in the proceeding by inserting additional names and deleting some existing names was not controversial. In the course of his submissions the third respondent indicated that he did not oppose such relief. The question of the striking out of various paragraphs of the respondents' defence was more controversial. A document entitled Notice of Constitutional Matter ("the Notice") was filed shortly before the Court assembled to hear the notice of motion. The Notice appears to reagitate issues that were dealt with by Justice Hayne in the High Court in Joose v Australian Securities and Investment Commission (1998) 159 ALR 260, at 262. 3 The third respondent submitted that as a result of the Notice the Court should adjourn to allow the attorneys to be served with the Notice and not to proceed any further in respect of this matter, which incidentally is listed for final hearing on 23 July 1999 and has been so listed since 7 June 1999. As was said in Green v Jones (1979) 39 FLR 428 by Justice Hunt of the New South Wales Supreme Court (at 434): "… it is not sufficient that the plaintiff bona fide and genuinely believes that his challenge involves a matter arising under the Constitution. He must establish that it does involve such a matter." 4 On that basis it is insufficient for Mr Joosse, the third respondent, to simply allege by the filing of a Notice of Constitutional Matter that an issue truly arises under the Constitution or involves its interpretation. In the Joose matter Justice Hayne dealt with a case which involved a predecessor company to the first respondent in the context of an application for award breach. This matter involves a question of alleged award breach and the Court accepts Mr Moore's submission that questions of res judicata and issue estoppel arise with respect to the argument of the third respondent which is contained in the Notice. 5 Having regard to the judgment of Justice Hayne in Joose, I do not see any question which involves a matter arising under the Constitution or its interpretation which arises from the Notice. It has been submitted by the third respondent that the matters that are sought to be agitated by the Notice are already before a Full Court of the High Court in another context. If that proves to be correct and if the submissions, despite the judgment of Justice Hayne in Joose, are submissions that prove to be persuasive then ultimately the third respondent may, if he wishes, take whatever action he is advised to take in respect to any further aspect of this proceeding. 6 Notwithstanding the filing of a Notice of Constitutional Matter and the assertion that a Constitutional matter truly arises this Court is of the view that no proper question arises under s78B of the Judiciary Act 1903 (Cth) which would necessitate having to adjourn this matter so that notices may be issued to the attorneys. In coming to that view the Court has considered the High Court judgment of Justice Hayne which deals with not only this very issue but effectively these very parties. 7 This brings the Court to the question of the defence and to the particular paragraphs that were sought to be impugned by the notice of motion. The relevant paragraphs of the defence are paragraphs 11 to 36 inclusive. Those paragraphs contain the matters which seek to reagitate an issue determined by Justice Hayne. Having regard to the judgment of his Honour I accept Mr Moore's submission that those paragraphs of the defence are bound to fail and accordingly should be struck out. See also Australian Securities and Investment Commission v Errol John White, Full Court, Federal Court of Australia, Cooper, Sundberg and Marshall JJ, unreported, 10 November 1998. The order of the Court is as follows: