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[2020] HCA 13
procedural. The applications for leave to issue or file the proposed application for leave to appeal in Matter S12/2020, the proposed application for leave to appeal in Matter S13/2020, and the proposed writ...
Gageler J refused Ms Young permission to file proposed appeals and an accompanying summons. The Court did not decide the broader question whether a refusal to remove proceedings to the High Court can be appealed. It assumed that an appeal might be available and considered whether Ms Young met the ordinary requirements for leave. She had to show that the removal decisions were sufficiently doubtful and that refusing leave would cause substantial injustice. The judgment found neither requirement was met. It also rejected the claim that the Commonwealth and State Housing Agreement was a treaty for the relevant constitutional and statutory provisions, because it was an agreement between Australian governments rather than nations.
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2,269 words · generated 03/10/2026
Re Young; Re Young [2020] HCA 13 concerned three proposed documents Maureen Young wanted to issue or file in the High Court: two applications for leave to appeal from orders refusing removal of proceedings, and an accompanying summons seeking interlocutory relief against Roads and Maritime Services (RMS). Gageler J refused leave for all three.
6 cited instruments linked from this judgment.
The underlying dispute concerned a mooring at Pearl Bay near Mosman in Sydney, where Ms Young had berthed and lived on a houseboat. From 2009 until 2018, she occupied the mooring under a registered lease from RMS. The lease followed a Deed of Release under which she agreed to forgo claims to pre-existing interests in the mooring [1].
In proceedings commenced in 2013, RMS claimed unpaid rent. Ms Young cross-claimed against RMS and the State of New South Wales. The cross-claim was struck out in 2016, RMS obtained default judgment in 2017, and the Court of Appeal refused leave to appeal in 2018. A special leave application to the High Court was also refused [2]. After the lease ended for non-payment in 2018, RMS brought further proceedings seeking possession, unpaid rent and an occupation fee. RMS obtained summary judgment in 2019, and the Court of Appeal refused Ms Young leave to appeal [3].
Ms Young had applied under s 40 of the Judiciary Act 1903 (Cth) to remove proceedings from State courts to the High Court. Keane and Edelman JJ dismissed those applications. Their reasons stated that it was not appropriate to fragment the ordinary judicial process by ordering removal [5]–[6]. Ms Young later sought to file proposed appeal documents. Nettle J directed the Registrar not to issue or file them without a Justice’s leave [7]. The applications before Gageler J were the resulting requests for that leave.
Ms Young’s central argument was that the proceedings involved a matter arising under a treaty, within s 75(i) of the Constitution, and arising directly under a treaty, within s 38(a) of the Judiciary Act. She relied on the 1945 Commonwealth and State Housing Agreement, describing it as an “internal treaty” and asserting that it supported rights or interests in the mooring [8]–[9].
Gageler J first explained the threshold process under rr 6.07.1–6.07.3 of the High Court Rules 2004 (Cth). A Registrar may seek a Justice’s direction where a document appears on its face to be an abuse of process, frivolous or vexatious, or outside the Court’s jurisdiction. The Justice considering leave applies the same criteria [10]–[11]. The application may be considered without an oral hearing because the document is assessed “on its face” [12].
The judgment cautioned that abuse of process has no closed set of categories. For present purposes, it includes an attempt to invoke the High Court’s jurisdiction on a confused or manifestly untenable basis. But stopping a proceeding before it gets underway is suitable only in the clearest cases [13]. This matters because the Court was not conducting a full appeal. It was deciding whether the proposed documents could be filed.
Gageler J then addressed a jurisdictional uncertainty. Section 73(i) of the Constitution concerns appeals from orders of Justices exercising the High Court’s original jurisdiction [14]. Section 34(1) of the Judiciary Act provides broadly for appeals from judgments of Justices exercising original jurisdiction, while s 34(2) requires leave for an appeal from an interlocutory judgment [15]–[16]. The judgment identified a real question whether a decision granting or refusing removal under s 40 is itself an exercise of original jurisdiction, or instead an exercise of incidental judicial power preceding any original jurisdiction that might follow removal [17]–[19].
A further question was whether the preliminary and discretionary character of a removal decision, read with s 42 of the Judiciary Act, implied an exception from appellate jurisdiction [20]. Gageler J did not decide either question: he said they required full argument and notice to Attorneys-General under s 78B [21]. Instead, following the approach taken in Bienstein v Bienstein, he assumed for these applications that an appeal could lie [22]–[23]. The judgment therefore should not be read as resolving the general appealability of removal decisions.
On that assumption, the ordinary leave test applied. An applicant had to show that the decision was attended with sufficient doubt and that refusing leave would result in substantial injustice [24]. Gageler J concluded that neither condition was established [25]. He considered the refusal of removal consistent with Bienstein, which recognised that removal interferes with the processes of the court already hearing a proceeding and should be ordered only where important issues require the High Court’s urgent decision [26].
The jurisdictional nature of Ms Young’s argument did not, by itself, change that result. The Supreme Court of New South Wales could determine its own jurisdiction. The judgment also noted the possibility of an appeal to the High Court, subject to special leave, from a Supreme Court decision said to have been made without jurisdiction [27]. Thus, merely asserting a jurisdictional issue was not a sufficient reason to depart from the ordinary approach to removal.
The procedural status of the causes also mattered. The causes Ms Young had sought to remove from the Court of Appeal had concluded when that Court gave its decision on 31 October 2019. They were no longer pending when she sought leave to file her proposed appeal in February 2020. In Gageler J’s words, “There is now and was then nothing left to remove” [29]. The Court of Appeal decision remained a decision from which she could apply for special leave, although an extension of time might be needed. As to the proposed appeal concerning the 2018 proceedings, the material did not establish that any relevant interlocutory causes remained undetermined [30].
Finally, Gageler J rejected the treaty contention. The Commonwealth and State Housing Agreement was an agreement between Australian governments. It was not an international agreement between independent nations, and so it was not a treaty for s 75(i) or s 38(a) [31]. Accordingly, s 38(a) did not bar the Supreme Court from exercising jurisdiction. The result was refusal of all three leave applications [32].
The judgment presents the applicable rules as existing principles rather than announcing a broad change in the law. Before this decision, the High Court Rules already provided a procedure for a Registrar to refer facially problematic documents to a Justice and for the Justice to decide whether leave should be given to issue or file them [10]–[12]. Gageler J explained how the abuse-of-process criterion applies in that setting: a confused or manifestly untenable attempt to invoke jurisdiction can fall within it, while the power to stop a proceeding at the outset remains reserved for clear cases [13].
The test for leave to appeal also came from existing authority. Gageler J quoted Bienstein for the requirements of sufficient doubt and substantial injustice [24]. He applied the approach to removal described in Bienstein, including the concern that removal interferes with the court already hearing the proceeding and is reserved for important issues requiring an urgent High Court decision [26].
The decision’s clear statement on treaties applied an existing constitutional and statutory meaning to the agreement in this case. For s 75(i) and s 38(a), “treaty” means an international agreement, not an agreement between the Commonwealth and one or more States [31]. The judgment did not decide how strong a connection between a controversy and an international treaty is needed for the controversy to be characterised as arising under that treaty. Gageler J expressly left that question open because the agreement before him was not an international treaty [31].
The judgment also left open a potentially significant jurisdictional question: whether a decision granting or refusing removal under s 40 of the Judiciary Act is appealable under s 73(i) of the Constitution. It identified arguments on both sides but deliberately did not determine them [17]–[22]. Accordingly, the “after” state shown by this judgment is limited. It clarifies the treaty point and applies existing leave and removal principles, but does not settle the appealability question.
At [13], Gageler J said: “The concept of abuse of process cannot be confined within closed categories.” In plain English, the concept is not a fixed checklist. The judgment then identifies, for the present purpose, an attempt to invoke the High Court’s jurisdiction on a confused or manifestly untenable basis. The accompanying caution is important: stopping a proceeding at the outset is appropriate only in the clearest cases.
At [24], the judgment states the leave test: “An applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave. The applicant must also show that substantial injustice will result from a refusal of leave to appeal.” Put simply, dissatisfaction with a decision is not enough. The applicant must meet both requirements.
At [26], Gageler J relied on the removal principles in Bienstein. The passage describes removal as an intervention in the ordinary process of the court already handling the case, and says removal is appropriate only where important issues require an urgent decision by the High Court. The judgment used that principle to support the discretionary decisions under challenge.
At [29], Gageler J stated: “There is now and was then nothing left to remove.” This was a procedural conclusion: the Court of Appeal had already decided the causes by the time Ms Young sought leave to file her appeal application. The judgment distinguishes a removal application from a later special leave application concerning a completed Court of Appeal decision.
At [31], Gageler J explained that “treaty” in s 75(i) and s 38(a) means an international agreement, and that the term does not apply to an agreement between Commonwealth and State Executive Governments. The plain-English consequence in this case was that the 1945 Commonwealth and State Housing Agreement did not bring Ms Young’s proceedings within those treaty provisions.
The decision is most directly relevant to an application for leave to issue or file documents in the High Court where a Registrar has referred the proposed documents to a Justice under r 6.07.2. It explains that the inquiry is facial and preliminary, but that the power to prevent a proceeding from starting should be used only in clear cases [10]–[13].
It is also relevant where an applicant seeks leave to appeal from an order refusing removal of a proceeding under s 40 of the Judiciary Act. The judgment applies the two-part leave test and refers to the discretionary character of removal, including the importance of avoiding disruption to ordinary court processes [24]–[27]. It does not, however, decide whether such a removal order is appealable under s 73(i) [17]–[22].
The procedural timing of a removal application may be significant. Here, the causes sought to be removed from the Court of Appeal had already concluded, and no longer existed as pending causes for removal [29]. The judgment also considered whether the materials showed that any interlocutory causes remained in another proceeding [30].
Finally, the treaty reasoning is relevant where a party invokes s 75(i) of the Constitution or s 38(a) of the Judiciary Act based on an agreement between Australian governments. The judgment says such an agreement is not a treaty for those provisions because the term refers to international agreements [31]. It does not settle the degree of connection required between a case and an international treaty.
The materials provided contain the judgment and the authorities it cites, but no later decisions discussing or applying Re Young. It is therefore not possible from this source alone to describe how later courts have treated the decision.
Within the judgment itself, Gageler J relied on Bienstein v Bienstein for the leave-to-appeal test and the approach to removal [22], [24], [26]. He also cited authorities concerning the nature of special leave and appeals, the High Court’s jurisdiction, and the meaning of treaty [19], [27], [31]. Those citations show the authorities considered in Re Young, not later treatment of Re Young.
The judgment expressly leaves the removal-order appealability question unresolved [21]–[23]. Any account of later resolution, adoption or limitation of that issue would require later legal sources not included here.
The principal open question identified by Gageler J is whether an order granting or refusing removal under s 40(1) or s 40(2)(b) of the Judiciary Act is an exercise of the High Court’s original jurisdiction for s 73(i) purposes, or an exercise of incidental judicial power distinct from that jurisdiction [19]. The related question is whether the preliminary and discretionary character of the removal decision, together with s 42, implies an exception to appellate jurisdiction [20]. Both were left undecided because they required full argument and notice under s 78B [21].
A separate issue left open is the connection needed between a controversy and an international treaty for the controversy to be characterised as “arising under” or “arising directly under” that treaty [31]. The Court did not need to resolve it because the Commonwealth and State Housing Agreement was not an international treaty.
The judgment also does not determine the merits of Ms Young’s underlying dispute about the mooring, her asserted historical interests, the lease, the Deed of Release, rent, possession or occupation fees. Its disposition is confined to the permission to issue or file the three proposed documents [32].
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GAGELER J
Matter No S12/2020
IN THE MATTER OF AN APPLICATION BY
MAUREEN MARY YOUNG FOR LEAVE TO
ISSUE OR FILE
Matter No S13/2020
IN THE MATTER OF AN APPLICATION BY
MAUREEN MARY YOUNG FOR LEAVE TO
ISSUE OR FILE
Re Young
Re Young
[2020] HCA 13
Date of Judgment: 15 April 2020
S12/2020 & S13/2020
ORDER
Application for leave to issue or file the proposed application for leave to appeal in Matter No S12 of 2020 refused.
Application for leave to issue or file the proposed application for leave to appeal in Matter No S13 of 2020 refused.
Application for leave to issue or file the proposed writ of summons in Matter No S13 of 2020 refused.
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Re Young
Re Young
High Court – Leave to issue or file proceeding – Removal of proceedings – Where causes said to be pending in Supreme Court of New South Wales said to involve matter "arising under any treaty" within meaning of s 75(i) of Constitution – Where applications for removal of causes into High Court under s 40 of Judiciary Act 1903 (Cth) were refused – Where applicant sought to file documents in the form of applications for leave to appeal and accompanying summons – Where Registrar directed to refuse to issue or file documents without leave of a Justice first had and obtained – Whether appellate jurisdiction of High Court extends to hearing and determining appeal from order granting or refusing removal of cause – Whether order is under implied exception to appellate jurisdiction prescribed by Parliament within meaning of s 73(i) of Constitution – Whether conditions for grant of leave to appeal established.
Words and phrases – "abuse of process", "appellate jurisdiction", "cause", "exception", "federal jurisdiction", "incidental judicial power", "leave to issue or file", "order granting or refusing removal of a cause", "original jurisdiction", "preliminary and discretionary nature", "proceedings inter partes", "removal", "special leave", "substantial injustice", "treaty".
Constitution, ss 51(xxxix), 73(i), (ii), 75, 76, 77(iii).
High Court Rules 2004 (Cth), rr 6.07.1, 6.07.2, 6.07.3, 26.07.1.
Judiciary Act 1903 (Cth), ss 2, 30(a), 34(1), (2), 35(2), 40(1), (2)(b), 42, 78B.
1
1 GAGELER J. For much of the past 25 years, Ms Maureen Young has been engaged in disputes with Roads and Maritime Services or its statutory predecessors ("RMS") concerning a mooring at Pearl Bay near Mosman in Sydney at which she has berthed a houseboat in which she has lived. From 2009 until 2018, she occupied the mooring under a registered Lease from RMS. The Lease was entered into pursuant to a Deed of Release under which she agreed to forgo claims to pre-existing interests in the mooring.
2 In proceedings commenced in the Local Court of New South Wales in 2013 which were later transferred to the Supreme Court of New South Wales, RMS claimed from Ms Young unpaid rent under the Lease and Ms Young cross-claimed against RMS and the State of New South Wales for damages ("the 2013 proceedings"). In 2016, the cross-claim was struck out. In 2017, RMS obtained default judgment. On 21 May 2018, the Court of Appeal refused Ms Young leave to appeal from the striking out of the cross-claim and the dismissal of an application to set aside the default judgment in a decision1 from which special leave to appeal to the High Court was refused2.
3 Following termination of the Lease for unpaid rent in 2018, RMS commenced further proceedings against Ms Young in the Supreme Court claiming possession of the mooring, further unpaid rent to the date of termination, and an occupation fee in respect of her occupation of the mooring from the date of termination until the date of vacating possession ("the 2018 proceedings"). On 13 August 2019, RMS obtained summary judgment in a decision from which Ms Young was refused leave to appeal by the Court of Appeal on 31 October 20193.
4 Earlier in 2019, Registrars of the Supreme Court had made orders having the effect of precluding Ms Young from filing amended cross-claims in the 2013 proceedings. The Court of Appeal on 31 October 2019 also refused her leave to appeal from those orders. The Court of Appeal commented, however, that the 2013 proceedings had arguably not been concluded so far as they related to Ms Young's cross-claim and that it remained open to her to apply for leave to file an amended cross-claim in those proceedings4.
5 Prior to the Court of Appeal delivering its decision, Ms Young filed two applications in the High Court seeking orders under s 40(1) or (2)(b) of the Judiciary Act 1903 (Cth). By the first application, filed on 29 July 2019, she sought an order removing "the interlocutory causes" then said to be pending in the Supreme Court in the 2018 proceedings. By the second application, filed on 30 September 2019, she sought an order removing into the High Court "the whole of the causes" then pending in the Court of Appeal.
6 Pursuant to r 26.07.1 of the High Court Rules 2004 (Cth), Keane and Edelman JJ on 13 November 2019 directed the Registrar of the High Court to draw up, sign and seal an order dismissing each of those applications for removal. In respect of each application, their Honours' published reasons stated that "[i]t is not appropriate in this matter to fragment the ordinary judicial process by an order for removal"5.
7 Ms Young subsequently sought to file documents in the form of applications under s 34(2) of the Judiciary Act for leave to appeal from the orders entered at the direction of Keane and Edelman JJ. In connection with one of those applications, she also sought to file an "urgent summons" by which she sought interlocutory relief against RMS. Pursuant to r 6.07.2 of the High Court Rules, Nettle J on 23 December 2019 directed the Registrar to refuse to issue or file each of the three documents without the leave of a Justice first had and obtained by Ms Young.
8 By applications pursuant to r 6.07.3 of the High Court Rules filed on 14 and 17 February 2020 respectively, Ms Young now seeks leave to file and issue the two applications for leave to appeal together with the accompanying summons in relation to the second of them. Although the grounds on which she relies are not easy to decipher, the gravamen of her complaint appears to be that Keane and Edelman JJ failed to appreciate that the causes she sought to have removed involve a matter "arising under [a] treaty" within the meaning of s 75(i) of the Constitution and a matter "arising directly under [a] treaty" within the meaning of s 38(a) of the Judiciary Act. Her contention is that the matter is therefore within the original jurisdiction of the High Court under s 75(i) of the Constitution and excluded from the jurisdiction of the Supreme Court by s 38(a) of the Judiciary Act.
9 The "treaty" under which the matter arises is said by Ms Young to be an "internal treaty": the Commonwealth and State Housing Agreement entered into by the Commonwealth and each of the States on 19 November 1945, execution of which by the Executive Government of the Commonwealth was authorised by the Commonwealth and State Housing Agreement Act 1945 (Cth), since repealed by the Omnibus Repeal Day (Autumn 2014) Act 2014 (Cth). Her contention is that, notwithstanding the Deed of Release and the Lease, she is the successor to rights and interests in the mooring which were "granted by the Executive Government of the day in the 1940's" in fulfilment of the Commonwealth and State Housing Agreement.
11 The discretion to refuse leave on an application made under r 6.07.3 of the High Court Rules falls to be exercised by a Justice by reference to the same criteria as those which inform the action of the Registrar under r 6.07.1. The discretion will ordinarily be exercised to refuse leave to issue or file a document where the document appears to the Justice determining the application "on its face" to be an abuse of the process of the Court, to be frivolous or vexatious or to fall outside the jurisdiction of the Court.
12 As Edelman J has recently emphasised, it is implicit in the requirement that a document the subject of an application under r 6.07.3 be considered "on its face" that the application falls to be determined without an oral hearing6. Unlike an interlocutory application governed by Pt 13 of the High Court Rules, in respect of which r 13.03.1 provides that the Court or a Justice may direct that the application is to be determined without listing it for hearing, no direction of a Justice is needed for an application under r 6.07.3 to be determined without listing it for hearing.
13 The concept of abuse of process cannot be confined within closed categories. Sufficiently for present purposes, it encompasses an attempt to invoke the original or appellate jurisdiction of the High Court on a basis that is confused or manifestly untenable. Needless to say, exercise of the discretion to nip a proceeding in the bud is appropriate only in the clearest of cases.
15 The scope of the appellate jurisdiction conferred by s 73(i) of the Constitution and not excluded by parliamentary prescription is amplified by the prescription in s 34(1) of the Judiciary Act that, except as provided by that Act, the High Court has "jurisdiction to hear and determine appeals from all judgments whatsoever of any Justice or Justices, exercising the original jurisdiction of the High Court whether in Court or Chambers". Absent an express or implied contrary intention, the term "judgment" in the context of the Judiciary Act includes "any ... order"7.
16 The only "exception" within the meaning of s 34(1) for which the Judiciary Act makes express provision is more precisely a "regulation" within the meaning of s 73(i) of the Constitution8. It is that by force of s 34(2) "[a]n appeal shall not be brought without the leave of the High Court from an interlocutory judgment of a Justice or Justices exercising the original jurisdiction of the High Court whether in Court or Chambers".
17 Despite the amplitude of s 34(1) of the Judiciary Act, there are in my opinion real questions as to whether the appellate jurisdiction of the High Court extends to hearing and determining an appeal from an order under s 40(1) or (2)(b) of the Judiciary Act.
18 Section 40(1) and (2)(b) of the Judiciary Act respectively authorise the High Court to order that a cause "arising under the Constitution or involving its interpretation" or "involving the exercise of federal jurisdiction" that is pending in a State court be "removed into the High Court". An order for removal of such a cause, if made, simultaneously divests the State court of such federal jurisdiction to hear and determine the cause as is invested in it under s 77(iii) of the Constitution and enlivens such original jurisdiction with respect to that cause as the High Court may have under s 75 of the Constitution or as may be conferred on it under s 76(i) of the Constitution by s 30(a) of the Judiciary Act (in the case of an order under s 40(1)) as supplemented by s 40(3) of the Judiciary Act (in the case of an order under s 40(2)(b))9. Granting or refusing an application for an order for removal, other than on the application of an Attorney‑General, involves the exercise of a broad judicial discretion the object of the conferral of which is "to secure early resolution of constitutional questions and other issues of public importance"10. Making an order for removal enlivens an ability on the part of the High Court to exercise the equally broad discretion, conferred by s 42 of the Judiciary Act, at any stage to remit the whole or part of the cause to the court from which it was removed. Refusing an order for removal creates no impediment to making a later application for removal of the same cause that is not frivolous or vexatious.
19 There is a real question as to whether an order granting or refusing removal of a cause under s 40(1) or (2)(b) of the Judiciary Act involves an exercise of the original jurisdiction of the High Court so as to fall within the ambit of s 73(i) of the Constitution. Arguably, an order granting or refusing removal of a cause is an exercise of an incidental judicial power conferred on the High Court under s 51(xxxix) of the Constitution exercise of which is distinct from, and antecedent to, exercise of such original jurisdiction conferred by s 75 or under s 76 of the Constitution as would be enlivened by the making of an order for removal. There might be thought in that respect to be an analogy between an order granting or refusing removal of a cause in the exercise of the power conferred by s 40(1) or (2)(b) of the Judiciary Act and an order granting or refusing special leave to appeal in the exercise of the power conferred by s 35(2) of the Judiciary Act as an incident of the power of the Parliament to regulate the appellate jurisdiction conferred on the High Court by s 73(ii) of the Constitution. The grant or refusal of special leave to appeal is not itself an exercise of appellate jurisdiction11. Rather, grant "is an essential preliminary condition to the existence of the appeal" and refusal "denies the existence of an appeal"12. The result is that "[u]ntil the grant of special leave there are no proceedings inter partes before the Court"13.
20 If an order granting or refusing removal of a cause under s 40(1) or (2)(b) of the Judiciary Act does involve an exercise of the original jurisdiction of the High Court from which an appeal can lie under s 73(i) of the Constitution, there might be thought to be a further question as to whether the preliminary and discretionary nature of such an order and the context of s 42 of the Judiciary Act imply an "exception" within the meaning of s 73(i) of the Constitution of a kind the potential existence of which is acknowledged in s 34(1) of the Judiciary Act14.
21 Those questions, which are of some complexity, do not lend themselves to determination in the context of the present applications. Neither of them could be determined without full argument and without notice having been given to Attorneys-General under s 78B of the Judiciary Act.
22 In Bienstein v Bienstein15, the Full Court of the High Court assumed that an appeal would lie under s 73(i) of the Constitution from the refusal of an application for removal under s 40(1) of the Judiciary Act. The Full Court did so in the course of holding that the purported appeal in that case was incompetent in the absence of an application for, and grant of, leave to appeal under s 34(2) of the Judiciary Act. It is open to me to proceed in the context of the present applications on the same assumption16, and appropriate that I do so.
23 Proceeding on the assumption that the purported applications for leave to appeal are not on their face outside the jurisdiction of the Court, I therefore turn to consider their merits.
24 As the Full Court pointed out in Bienstein v Bienstein17:
"The principles that govern the grant of leave to appeal are well established. An applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave. The applicant must also show that substantial injustice will result from a refusal of leave to appeal."
26 There is no doubt whatsoever as to the soundness of the discretionary decisions of Keane and Edelman JJ. Their Honours' reasons for each of those orders reflected the observation in Bienstein v Bienstein that "[o]rders for removal interfere with the processes of the courts hearing the proceedings sought to be removed" and that "[o]nly where the issues are important and require this court's urgent decision should the court make an order for removal"18.
27 There is no reason to consider that their Honours failed to appreciate the nature of the jurisdictional argument which Ms Young sought to propound. The Supreme Court of New South Wales has jurisdiction to determine its own jurisdiction. Subject to the grant of special leave, an appeal lies to the High Court under s 73(ii) of the Constitution from a judgment or order of the Supreme Court on the ground that the judgment or order was rendered without jurisdiction19. The mere circumstance that an applicant for removal raises a jurisdictional issue therefore provides no basis for departure from the general approach to removal articulated in Bienstein v Bienstein and reflected in their Honours' reasons.
28 Nor is there any reason to consider that substantial injustice might result to Ms Young from a failure to obtain leave to appeal from the orders refusing removal.
29 In relation to Ms Young's attempt to obtain leave to appeal from the order refusing removal of "the whole of the causes" pending in the Court of Appeal, it is important to recognise that those causes were concluded by the decision of the Court of Appeal on 31 October 2019. The causes are no longer pending. Indeed, the causes were no longer pending at the time she sought leave to file the application for leave to appeal on 14 February 2020. There is now and was then nothing left to remove. Ms Young has instead the decision of the Court of Appeal from which she is entitled to apply for special leave to appeal albeit that she might now be required to seek and show justification for an extension of time to do so.
30 Similarly, in relation to Ms Young's attempt to obtain leave to appeal from the order refusing removal of "the interlocutory causes" then said to be pending in the Supreme Court in the 2018 proceedings, the material filed in support of her application for leave to appeal on 17 February 2020 does not establish that any such causes then remained undetermined.
31 Lest I be taken to suggest otherwise, it is appropriate that I record my rejection of Ms Young's contention that s 38(a) of the Judiciary Act presents or presented an impediment to the exercise of jurisdiction by the Supreme Court. There may be room for debate about the nature and degree of the connection required to justify characterisation of a justiciable controversy as a matter "arising under" and "arising directly under" a treaty20. There can be no doubt, however, that the term "treaty" in s 75(i) of the Constitution and in s 38(a) of the Judiciary Act refers to an international agreement21 – "a contract between two or more independent nations"22. The term has no application to an agreement made between the Executive Government of the Commonwealth and the Executive Government of one or more Australian States.
Young v Roads and Maritime Services [No 3] [2018] NSWCA 106. ↩
Young v Roads and Maritime Services [2019] HCASL 17. ↩
Young v Roads and Maritime Services [2019] NSWCA 266. ↩
Young v Roads and Maritime Services [2019] NSWCA 266 at [18], [20]-[21]. ↩
Young v Roads and Maritime Services [2019] HCASL 363; Young v Roads and Maritime Services [2019] HCASL 364. ↩
Re Simmonds [2020] HCATrans 034 at 3/53-72. ↩
Section 2 of the Judiciary Act. ↩
Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth (1991) 173 CLR 194 at 217. ↩
Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 72-73, 125, 129. ↩
O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 248. ↩
Attorney-General (Cth) v Finch [No 2] (1984) 155 CLR 107 at 115. ↩
Attorney-General (Cth) v Finch [No 1] (1984) 155 CLR 102 at 105. ↩
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at 133 [112].
(1991) 173 CLR 194
(1925) 37 CLR 36
(1991) 171 CLR 232
(1984) 155 CLR 107
(1984) 155 CLR 102
(2015) 256 CLR 104
(2001) 207 CLR 72
(2003) 195 ALR 225
(2017) 263 CLR 487
(2013) 252 CLR 118
(1998) 196 CLR 354
(1936) 55 CLR 608
The applications for leave to issue or file the proposed application for leave to appeal in Matter S12/2020, the proposed application for leave to appeal in Matter S13/2020, and the proposed writ of summons in Matter S13/2020 were refused.
cf Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) (2001) 207 CLR 72 at 78-81 [11]-[19]. ↩
(2003) 195 ALR 225. ↩
cf Wilkie v The Commonwealth (2017) 263 CLR 487 at 522 [57]-[58]. ↩
(2003) 195 ALR 225 at 231 [29]. ↩
(2003) 195 ALR 225 at 234 [45]. ↩
New South Wales v Kable (2013) 252 CLR 118 at 133 [31], 140 [55]. ↩
cf Re East; Ex parte Nguyen (1998) 196 CLR 354 at 361-362 [16]-[18]. ↩
R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 644. ↩
Whitney v Robertson (1888) 124 US 190 at 194, quoted in Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 769. ↩