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

Michelle Lynette Schafer applied to the High Court of Australia for leave to issue or file an application seeking the removal of a matter from the District Court of Queensland at Rockhampton into the High Court. This leave was required due to a direction from Gleeson J made under rule 6.07.2 of the High Court Rules 2004 (Cth).

The court was required to determine whether to grant leave to issue or file the application for removal. This determination hinged on the interpretation and application of section 40 of the Judiciary Act 1903 (Cth), which governs the removal of causes from State courts into the High Court. Specifically, the court had to consider the conditions stipulated in section 40(4) of the Judiciary Act.

The court reasoned that section 40(4) of the Judiciary Act requires either the consent of all parties to the removal or satisfaction that the order is appropriate considering the interests of the parties and the public interest. The material before the court did not demonstrate consent from the other parties in the District Court proceedings, nor did it establish how the interests of the parties or the public interest would be served by such a removal. The court found the application for removal to be "fatally deficient" as it did not appear to address the resolution of the issues in the underlying cause. Consequently, the court concluded that section 40(4) would preclude an order for removal.

Given the deficiencies in the application and the futility of granting leave to proceed with a doomed application, the court refused leave to issue or file the application for removal.