Roberts v Roberts and Moffatt Ex Parte Roberts and Moffatt

This case involved a motion before the High Court of Australia to strike out a notice of appeal. The plaintiff, Roberts, had filed an action against the defendants, Roberts and Moffatt, which was subsequently dismissed by Barton J. on 22nd October 1908, on the grounds that it was frivolous and vexatious. The plaintiff filed his notice of appeal on 10th November 1908, twenty days after the order was made. The defendants sought to strike out the appeal as being out of time.

The central legal issue before the High Court was whether the order of Barton J. dismissing the suit as frivolous and vexatious constituted a "final judgment" within the meaning of the High Court Rules 1903, Part II, Section I, Rule 4. If it was an interlocutory order, then the notice of appeal, filed more than ten days after the order, would be out of time.

Griffith C.J., delivering the judgment of the Court, held that an order dismissing a suit as frivolous and vexatious is an interlocutory order and not a final judgment. He reasoned that a final judgment is one that finally concludes the rights of the parties regarding the matters in question, excluding decisions on mere procedural matters. An order dismissing a suit for being frivolous or for disclosing no substantial cause of action does not finally determine the actual facts or the parties' rights, as the matter could potentially be brought before the Court in a proper manner. Therefore, the ten-day time limit for filing an appeal from an interlocutory order applied, and the plaintiff's notice of appeal was out of time.

The Court concluded that the application to strike out the notice of appeal must succeed. The notice of appeal was struck out, and the plaintiff was ordered to pay the costs of the application.