Re McCawley

Thomas William McCawley sought to appeal to the High Court of Australia from an order of the Full Court of the Supreme Court of Queensland. McCawley had presented a commission appointing him a Judge of the Supreme Court of Queensland and requested to be sworn in. Counsel appearing as *amici curiae* challenged the validity of the commission, leading to an argument between them and counsel for McCawley. The Supreme Court subsequently made an order declaring that McCawley was not entitled to be sworn in and was ineligible for appointment as a Judge of the Supreme Court, granting him leave to appeal to the High Court.

The legal issues before the High Court were whether the order of the Supreme Court constituted a "judgment" within the meaning of section 35 of the *Judiciary Act 1903-1915*, and if so, whether it was an interlocutory judgment. McCawley argued that the order was a judgment and, if not final, at least interlocutory, thus requiring leave to appeal. Alternatively, he contended that special leave to appeal should be granted.

The High Court, in a judgment delivered by Barton J., held that the order of the Supreme Court was not a "judgment" for the purposes of section 35 of the *Judiciary Act*. The Court reasoned that a judgment must be pronounced in some litigation between parties, meaning it must be *inter partes*. The Court found that the proceeding before the Supreme Court, while involving argument, did not constitute a lis or litigation between parties in the required sense. Furthermore, the Court indicated that if it were a judgment, it would not be considered interlocutory.

Consequently, the High Court refused to grant either leave or special leave to appeal. The determination of the Supreme Court was not considered a judgment within the meaning of the relevant section of the *Judiciary Act*, and therefore, the High Court lacked jurisdiction to entertain the appeal.