Rubin v Eacott

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.