ON APPEAL FROM THE SUPREME COURT OF Practice-Leave to appeal-Interlocrtory order-Right of appellant to question
interlocutory order on appeal from final judgment. SYDNEY,
On an appeal from a final judgment of the Supreme Court of a State, it is May 9.
open to the appellant, without obtaining leave, to question any interlocutory or other order, which was a step in the procedure leading up to the final judgment.
A defendant, against whom a verdict for £500 had been obtained in all action at nisi prius in the Supreme Court of New South Wales, applied to the Full Court of the State for a rule nisi for a new trial on several grounds. A rule was refused on certain grounds, and granted on others; but on the motion to make the rule absolute, it was discharged.
The defendant, being desirous of appealing to the High Court from the final judgment of the Supreme Court and of raising on the appeal the grounds as to which that Court had decided against him on the application for a rule mill, moved the High Court for leave to appeal from the order of the Supreme Court refusing to grant a rule nisi on those grounds.
Held, that leave was not necessary.
MOTION for leave to appeal.
In this case a verdict for £500 had been obtained by the respon- dent against the appellant in an action for malicious prosecution in the Supreme Court of New South Wales. The appellant then on 25th October, 1904, moved the Full Court for a rule nisi for
a new trial on a number of grounds. The rule nisi was granted on certain grounds, and refused as to others Glissan v. Crowley (1).
On 4th May, 1905, the Full Court, on motion by the appellant to have the rule made absolute for a new trial, discharged the rule with costs (2).
The appellant, intending to appeal from the order of the Supreme Court of 4th May, 1905, and wishing to raise, on the hearing of the appeal, the grounds as to which the Supreme Court had decided against him on the motion for a rule nisi, now moved for leave to appeal from the order of the Supreme Court of 25th October, 1904, in so far as it refused to grant a rule nisi upon the grounds mentioned.
The facts of the case and the nature of the grounds in question, are not material to this report.
Edmunds for the appellant, moved for leave to appeal, and referred to Nolan v. Clifford (3); Smith v. Neild (4); and High Court Procedure Act, Appeal Rules, sec. I., r. 16.
GRIFFITH C.J. In this case an appeal is proposed to be brought from a decision of the Supreme Court of New South Wales refusing to grant a rule nisi for a new trial upon certain grounds. Accord- ing to the practice of that Court an application for a new trial is made in…
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.
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AGLC
Crowley v Glissan [1905] HCA 13
Case
[1905] HCA 13
Decision Date
CaseChat Overview and Summary
Crowley (appellant) sought leave to appeal against an interlocutory order made by the Supreme Court of Queensland, which had refused to set aside a writ of summons. Glissan (respondent) was the plaintiff in the original proceedings. The dispute concerned the validity of the service of the writ.
The central legal issue before the Full Court of the High Court of Australia was whether the appellant, having failed to appeal an interlocutory order refusing to set aside a writ, could subsequently challenge that interlocutory order on an appeal from the final judgment in the same proceedings.
Griffith C.J. and Barton J. held that an interlocutory order, if not appealed within the time prescribed for appealing such orders, becomes final and binding. They reasoned that to allow a party to raise the same objections to an interlocutory order on an appeal from the final judgment would undermine the finality of interlocutory decisions and create uncertainty in litigation. The court applied the principle that interlocutory orders, unless appealed within the relevant time limits, are not subject to review on a subsequent appeal from the final judgment.