Rubin v Eacott - [1912] HCA 55

ON APPEAL FROM THE SUPREME COURT OF Practice-High Court- - Appeal from Supreme Court of State- - -Leave to appeal-

Interlocutory judgment- Grounds for refusal-Application to set aside judg. ment-Affidavit of merits. SYDNEY, Aug. 23.

Where an interlocutory judgment is regular, an application to set it aside should be supported by an affidavit of merits.

Although leave to appeal to the High Court from an interlocutory judg. ment of the Supreme Court of a State is granted almost as a matter of course, it will be refused where the proposed appeal is, on the material presented to the High Court, hopeless.

Leave to appeal from the Supreme Court of Western Australia refused.

APPLICATION for leave to appeal.

By writ dated 15th November 1911 Joseph John Eacott brought an action in the Supreme Court of Western Australia against Mark Rubin to recover damages for illegal seizure of property. The defendant was out of the jurisdiction of the Court but he had an attorney under power, Abraham Davis, residing at Broome in Western Australia, who was conversant with the matters out of which the action arises. On 12th January 1912 a conditional appearance was entered for the

15 CLR 387

defendant, and on 2nd February 1912 a summons to set aside the service of the writ was dismissed, and there was no appeal against that dismissal. On 23rd March the statement of claim was delivered, and was amended on 16th April. Before the time for delivering the defence had expired Davis was drowned. Interlocutory judgment was signed by the plaintiff on 9th July, and a summons by the defendant to set aside the interlocutory judgment was dismissed, no affidavit that the defendant had a good defence on the merits having been filed. From the order dismissing that summons the defendant appealed to the Full Court, and on 25th July the appeal was dismissed.

From that decision the defendant now asked for leave to appeal to the High Court.

Loxton K.C. (with him Pilcher), for the appellant. The ques- tions of law sought to be raised are whether an affidavit of merits is necessary on an application to set aside an interlocutory judg- ment, and, if such an affidavit is ordinarily necessary, whether it is necessary where the defendant is out of the jurisdiction, his principal witness is dead, and there is no one in the jurisdiction in a position to make an affidavit of merits. [He referred to Watt v. Barnett 1.]

BARTON J. This is an application for leave to appeal. Ordinarily speaking an application of that sort is not dealt with strictly, because, as an appeal might at a later stage be brought as of right, and as the application is for leave to appeal from an interlocutory judgment and not a final one, in many cases the question whether leave is to be granted at the stage at which it is sought only affects the convenient administration of justice; for example, by the avoidance of…

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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Details

Case: [1912] HCA 55
Decision Date: 23 August 1912

CaseChat Overview and Summary

This matter concerned an application for leave to appeal to the High Court of Australia from a decision of the Supreme Court of Western Australia. The applicant, Mark Rubin, sought leave to appeal against an order of the Supreme Court that dismissed his summons to set aside an interlocutory judgment entered against him in favour of Joseph John Eacott. Eacott had commenced proceedings in the Supreme Court of Western Australia seeking damages for the illegal seizure of property.

The legal issues before the High Court were whether an affidavit of merits was a necessary prerequisite for an application to set aside a regular interlocutory judgment, and if so, whether this requirement should be dispensed with in circumstances where the defendant was out of the jurisdiction, his attorney had died, and no one within the jurisdiction was in a position to swear such an affidavit.

The High Court refused leave to appeal. Barton J. and Isaacs J. held that while leave to appeal from interlocutory judgments is generally granted liberally to avoid unnecessary expense, it will be refused if the proposed appeal is demonstrably hopeless. Their Honours noted that a consistent line of authority requires an affidavit of merits to support an application to set aside a judgment, and no compelling reason was advanced to depart from this rule. The Court found that the Supreme Court of Western Australia was correct in dismissing the summons to set aside the interlocutory judgment due to the absence of an affidavit of merits, and that granting leave to appeal would be to permit a hopeless appeal, causing further expense and potential injustice.

Orders