Re Young

Case [2020] HCA 13 15 April 2020

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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
1.Application for leave to issue or file the proposed application for leave to appeal in Matter No S12 of 2020 refused.
2.Application for leave to issue or file the proposed application for leave to appeal in Matter No S13 of 2020 refused.
3.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.

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Young

Details

AGLC: Re Young [2020] HCA 13
Case: [2020] HCA 13
Decision Date: 15 April 2020

CaseChat Overview and Summary

In the High Court, Gageler J considered applications by an applicant seeking leave to issue or file documents related to proposed appeals and a writ of summons. These applications arose from the Supreme Court of New South Wales' refusal to remove certain proceedings into the High Court. The applicant contended that these removed proceedings involved matters "arising under any treaty" within the meaning of s 75(i) of the Constitution, and that the refusal to remove them was appealable to the High Court.

The central legal issues before Gageler J were whether the appellate jurisdiction of the High Court extended to hearing and determining an appeal from an order granting or refusing the removal of a cause, and if so, whether the conditions for granting leave to appeal were met in this instance. The court also considered whether such an order fell within an implied exception to the High Court's appellate jurisdiction, as permitted by s 73(i) of the Constitution.

Gageler J reasoned that the power to remove a cause from a State Supreme Court to the High Court under s 40 of the *Judiciary Act 1903* (Cth) is a matter of original federal jurisdiction, not a matter that attracts appellate jurisdiction. His Honour held that an order refusing removal is a preliminary and discretionary one, and that the appellate jurisdiction of the High Court does not extend to appeals from such interlocutory decisions, particularly when the underlying proceedings have not yet been determined. The court found that the applicant had not established the necessary conditions for the grant of leave to appeal, nor had they demonstrated a substantial injustice or an abuse of process that would warrant intervention.

Consequently, Gageler J refused the applications for leave to issue or file the proposed application for leave to appeal in both Matter No S12 of 2020 and Matter No S13 of 2020, and also refused the application for leave to issue or file the proposed writ of summons in Matter No S13 of 2020.

Orders

Orders of the court

1. Application for leave to issue or file the proposed application for leave to appeal in Matter No S12 of 2020 refused.

2. Application for leave to issue or file the proposed application for leave to appeal in Matter No S13 of 2020 refused.

3. Application for leave to issue or file the proposed writ of summons in Matter No S13 of 2020 refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GAGELER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GAGELER J

Full text does not contain this section.

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Citations

Re Young [2020] HCA 13

Most Recent Citation

Luck v National Duty Registrar of the Federal Court of Australia (Permanent Stay) [2024] FCA 1257

Cases Citing This Decision

Robertson and Decision-Maker (Practice and Procedure) [2025] ARTA 22
Citation 1 (Para 12)

…rule 5 of the Rules of the Supreme Court 1971 (WA), at [25]-[33].[2] [2] See also Frigger v Parkyn [2021] FCA 224 at [10]-[13]; Re Young [2020] HCA 13; (2020) 94 ALJR 448 at [11]-[13].…
Luck v Principal Registrar and Chief Executive Officer of the Federal Court of Australia (Permanent Stay) [2024] FCA 1256
Citation 2 (Para 15)

…any documents already filed or submitted for filing with the document” (r 2.26(b)): see Somasundaram at [41] (Murphy J). See also Re Young [2020] HCA 13; 376 ALR 567 at [12] (Gageler J). There was otherwise no reviewable error…
Luck v National Duty Registrar of the Federal Court of Australia (Permanent Stay) [2024] FCA 1257
Citation 3 (Para 20)

…eir face are an abuse of process of the Court, or frivolous, or vexatious. Any such implication would defeat the purposes of r 2.26: see Re Young [2020] HCA 13; 376 ALR 567 at [12] (Gageler J). See also Nyoni v Murphy [2018] FCAFC 75; 261 FCR 164 at [38] (Barker, Banks-Smith and Colvin JJ) and Somasundaram v Lux…

See all citing cases →

Cases Cited

Young v Roads and Maritime Services [2019] HCASL 364
Citation 1 (Para 6)

…ordinary judicial process by an order for removal"[5]. [5] Young v Roads and Maritime Services [2019] HCASL 363; Young v Roads and Maritime Services [2019] HCASL 364.…
Young v Roads and Maritime Services [2019] HCASL 363
Citation 2 (Para 6)

…[i]t is not appropriate in this matter to fragment the ordinary judicial process by an order for removal"[5]. [5] Young v Roads and Maritime Services [2019] HCASL 363; Young v Roads and Maritime Services [2019] HCASL 364.…
Young v Roads and Maritime Services [2019] NSWCA 266
Citation 3 (Para 3)

…t in a decision from which Ms Young was refused leave to appeal by the Court of Appeal on 31 October 2019[3]. [3] Young v Roads and Maritime Services [2019] NSWCA 266.…
Young v Roads and Maritime Services [2019] HCASL 17
Citation 4 (Para 2)

…to appeal to the High Court was refused[2]. [1] Young v Roads and Maritime Services [No 3] [2018] NSWCA 106. [2] Young v Roads and Maritime Services [2019] HCASL 17.…
Young v Roads and Maritime Services (No 3) [2018] NSWCA 106
Citation 5 (Para 2)

…default judgment in a decision[1] from which special leave to appeal to the High Court was refused[2]. [1] Young v Roads and Maritime Services [No 3] [2018] NSWCA 106. [2] Young v Roads and Maritime Services [2019] HCASL 17.…
Wilkie v The Commonwealth [2017] HCA 40
Citation 6 (Para 22)

…ontext of the present applications on the same assumption[16], and appropriate that I do so. [15](2003) 195 ALR 225. [16]cf Wilkie v The Commonwealth (2017) 263 CLR 487 at 522 [57]-[58].…
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37
Citation 7 (Para 19)

…55 CLR 107 at 115. [12] Attorney-General (Cth) v Finch [No 1] (1984) 155 CLR 102 at 105. [13] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at 133 [112].…
New South Wales v Kable [2013] HCA 26
Citation 8 (Para 27)

…rture from the general approach to removal articulated in Bienstein v Bienstein and reflected in their Honours' reasons. [19] New South Wales v Kable (2013) 252 CLR 118 at 133 [31], 140 [55].…
Bienstein v Bienstein [2003] HCA 7
Citation 9 (Para 22)

…Judiciary Act . It is open to me to proceed in the context of the present applications on the same assumption[16], and appropriate that I do so. [15](2003) 195 ALR 225. [16]cf Wilkie v The Commonwealth (2017) 263 CLR 487 at 522 [57]-[58].…
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49
Citation 10 (Para 20)

…tence of which is acknowledged in s 34(1) of the Judiciary Act [14]. [14]cf Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) (2001) 207 CLR 72 at 78-81 [11]-[19].…
Re East; Ex parte Nguyen [1998] HCA 73
Citation 11 (Para 1)

…between the Executive Government of the Commonwealth and the Executive Government of one or more Australian States. [20]cf Re East; Ex parte Nguyen (1998) 196 CLR 354 at 361-362 [16]-[18]. [21] R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 644. [22] Whitney v Robertson (1888) 124 US 190 at 194, quoted in Quick and…
Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth [1991] HCA 43
Citation 12 (Para 16)

…cising the original jurisdiction of the High Court whether in Court or Chambers". [8] Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth (1991) 173 CLR 194 at 217.…
O'Toole v Charles David Pty Ltd [1991] HCA 14
Citation 13 (Para 18)

…s not frivolous or vexatious. [9] Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 72-73, 125, 129. [10] O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 248.…
Attorney-General (Cth) v Finch [No 2] [1984] HCA 40
Citation 14 (Para 19)

…t is that "[u]ntil the grant of special leave there are no proceedings inter partes before the Court"[13]. [11] Attorney-General (Cth) v Finch [No 2] (1984) 155 CLR 107 at 115. [12] Attorney-General (Cth) v Finch [No 1] (1984) 155 CLR 102 at 105. [13] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256…
Attorney-General (Cth) v Finch [No 1] [1984] HCA 1
Citation 15 (Para 19)

…inter partes before the Court"[13]. [11] Attorney-General (Cth) v Finch [No 2] (1984) 155 CLR 107 at 115. [12] Attorney-General (Cth) v Finch [No 1] (1984) 155 CLR 102 at 105. [13] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at 133 [112].…
R v Burgess; ex parte Henry [1936] HCA 52
Citation 16 (Para 1)

…ernment of one or more Australian States. [20]cf Re East; Ex parte Nguyen (1998) 196 CLR 354 at 361-362 [16]-[18]. [21] R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 644. [22] Whitney v Robertson (1888) 124 US 190 at 194, quoted in Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901)…
Ex parte Walsh and Johnson; In re Yates [1925] HCA 53
Citation 17 (Para 18)

…ediment to making a later application for removal of the same cause that is not frivolous or vexatious. [9] Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 72-73, 125, 129. [10] O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 248.…
Re Simmonds [2020] HCATRANS 034
Citation 18 (Para 12)

…t 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. [6] Re Simmonds [2020] HCATrans 034 at 3/53-72.…
Whitney v Robertson (1888) 124 US 190
Citation 19 (Para 1)

…East; Ex parte Nguyen (1998) 196 CLR 354 at 361-362 [16]-[18]. [21] R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 644. [22] Whitney v Robertson (1888) 124 US 190 at 194, quoted in Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 769. Disposition…
Ltd v The Commonwealth 356 US 86
Citation 20 (Para 16)

…ustice or Justices exercising the original jurisdiction of the High Court whether in Court or Chambers". [8] Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth (1991) 173 CLR 194 at 217.…

Legislation Cited

Judiciary Act 1903 (Cth) 2, 30(a), 34(1), 35(2), 40(1), 42, 78B
8 mentions (from Para 5)
High Court Rules 2004 (Cth) 26.07.1, 6.07.1, 6.07.2, 6.07.3
5 mentions (from Para 6)
Commonwealth and State Housing Agreement Act 1945 (Repealed) (TAS)
1 mention (from Para 9)