Keshia Dorante‑Day v Doug Martin & Anor Simon Charles Dorante‑Day & Anor v Doug Martin

KESHIA DORANTE‑DAY
v
DOUG MARTIN & ANOR
SIMON CHARLES DORANTE‑DAY & ANOR
v
DOUG MARTIN & ANOR
[2011] HCASL 150
S76/2011
S77/2011

The applicants seek the removal into this Court of what is said to be two proceedings now pending in the Supreme Court of New South Wales. Removal is sought under s 40 of the Judiciary Act 1903 (Cth), which requires that there be a cause or part of a cause arising under the Constitution or involving its interpretation.
The applicants appear to contend that the proceedings the subject of the applications answer this description because Reg 6.01 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) "breaches" ss 9 and 10 of the Racial Discrimination Act 1975 (Cth). The relationship between two Commonwealth laws, one a statute and the other delegated legislation, does not give rise to constitutional questions which engage the removal power given by s 40.
Accordingly, the applications for removal are refused with costs.
Pursuant to rr 26.06.3 and 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the applications, with costs.

W.M.C. Gummow
8 September 2011 S.M. Kiefel

CaseChat Overview and Summary

The case of Keshia Dorante-Day v Doug Martin & Anor and Simon Charles Dorante-Day & Anor v Doug Martin & Anor involves an application for the removal of two proceedings from the Supreme Court of New South Wales to the High Court of Australia. The applicants, Keshia Dorante-Day and Simon Charles Dorante-Day, sought the removal on the basis that the proceedings involved a question arising under the Constitution or involving its interpretation. They argued that the Superannuation Industry (Supervision) Regulations 1994 (Cth) breached sections 9 and 10 of the Racial Discrimination Act 1975 (Cth).

The primary legal issue before the court was whether the conflict between the Superannuation Industry (Supervision) Regulations 1994 (Cth) and the Racial Discrimination Act 1975 (Cth) constituted a cause or part of a cause arising under the Constitution or involving its interpretation. The court needed to determine if the removal power under section 40 of the Judiciary Act 1903 (Cth) was applicable in this case. The court considered whether the dispute involved constitutional questions or if it was merely a conflict between two Commonwealth laws.

The court held that the relationship between two Commonwealth laws did not engage the removal power under section 40 of the Judiciary Act 1903 (Cth). The court found that there was no constitutional question involved in the conflict between the Superannuation Industry (Supervision) Regulations 1994 (Cth) and the Racial Discrimination Act 1975 (Cth). Consequently, the applications for removal were refused. The court further directed the Registrar to draw up, sign and seal an order dismissing the applications, with costs to be paid by the applicants.

In summary, the High Court dismissed the applications for removal, finding no constitutional question that warranted the exercise of the removal power. The court held that the conflict between the two Commonwealth laws did not engage the removal jurisdiction. The applicants were also ordered to pay the costs of the proceedings.

CaseChat Overview and Summary

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