Schafer, In the matter of an application for leave to issue or file

[2022] HCATrans 10

[2022] HCATrans 010

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B1 of 2022

In the matter of -

an application by MICHELLE LYNETTE SCHAFER for leave to issue or file

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON THURSDAY, 17 FEBRUARY 2022, AT 9.32 AM

Copyright in the High Court of Australia

HIS HONOUR:   On 10 December 2021, the applicant applied for an order pursuant to s 40 of the Judiciary Act 1903 (Cth) to remove the whole of the matter pending in the District Court of Queensland at Rockhampton into this Court.

On 10 December 2021, Justice Gleeson directed, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), that the Registrar refuse to issue or file a document without the leave of a Justice first had and obtained by the applicant. By an application filed on 6 January 2022 the applicant sought that leave.

For the reasons that I now publish, I would dismiss that application.  I direct that those reasons be incorporated into the transcript.

The order is:

1.        Leave to issue and file the proceeding is refused.

I publish that order.

The applicant, Michelle Lynette Schafer, seeks leave to issue or file an application for the removal into this Court, pursuant to s 40 of the Judiciary Act 1903 (Cth), of the whole of the matter pending in the District Court of Queensland at Rockhampton. Leave to issue or file the application for removal is necessary by reason of the direction of Gleeson J dated 10 December 2021 made pursuant to r 6.07.2 of the High Court Rules (2004) (Cth).

Section 40(1) of the Judiciary Act provides that a cause or part of a cause pending in a court of a State may be removed into this Court “for sufficient cause shown”. Section 40(4) of the Judiciary Act provides that such an order shall not be made unless, either “all parties consent to the making of the order”, or “the Court is satisfied that it is appropriate to make the order having regard to all the circumstances, including the interests of the parties and the public interest”.

It does not appear from the material relied upon in support of the application that the other party or parties to the proceedings currently pending in the District Court have consented to the proposed removal. Nor is it apparent from that material how it is said that the interests of the parties or the public interest would be served by the disruption to the ordinary course of litigation that would be involved in removing the cause into this Court. Indeed, it is not even apparent from the material that the various assertions made by the applicant bear in any way upon the resolution of the issues in the cause. The application for removal is fatally deficient. That being so, s 40(4) of the Judiciary Act would preclude the making of an order for removal.

In these circumstances, it would be futile to grant leave to issue or file the application for removal.  Accordingly, leave to issue or file the application for removal is refused.

AT 9.33 AM THE MATTER WAS CONCLUDED