Harty & Ors v Schachter

The applicants, Jack Henry Harty and others, who were barristers and solicitors, sought removal of a case stated from the Full Family Court to the High Court of Australia. The respondent was Max Bernard Schachter. The dispute concerned the appropriate procedural path for resolving questions regarding costs, with a case stated having been issued by Mr Justice Fogarty of the Family Court.

The primary legal issue before the High Court was whether it had jurisdiction to hear and determine the case stated, particularly given the procedural complexities and potential for the matter to become incapable of further progression if not addressed by the High Court. The Court was also required to consider the implications of its previous exercise of jurisdiction in similar circumstances where orders had not been formally taken out.

The High Court, through Chief Justice Mason, indicated that while the Court had previously exercised jurisdiction in relation to answers given to a stated case even where the order had not been taken out, the general question of removal and jurisdiction in such circumstances was to be fully argued in a separate upcoming case, *O'Toole v Charles David Pty Ltd*. This suggested that the Court was contemplating the broader implications of the procedural route taken in the present matter.

The Court ultimately did not make final orders in the provided transcript, as the matter was still being discussed and the Chief Justice referred to the upcoming *O'Toole* case as a forum for a full debate on the relevant jurisdictional and procedural issues. The applicants indicated they were not aware of the *O'Toole* case being in train.