Re Young

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.