Roberts v Roberts Ex Parte Moffatt [1908] HCA 77; (1908) 7 CLR 566 (27 November 1908)

HIGH COURT OF AUSTRALIA

Roberts v Roberts and Moffatt and Others. Ex Parte Roberts and Moffatt and Others.

H C of A

27 November 1908

Griffith C.J., and Barton J.

Maughan, for the applicants.

Appellant, in person.

Griffith C.J.

The point made by the applicants is that the order of Barton J., dismissing an action upon a summons under the jurisdiction of the Court to dismiss actions that are frivolous and vexatious, was an interlocutory order and not a final judgment. In the case of an interlocutory order the time prescribed for giving notice of appeal is ten days from the date of the order appealed from. In my opinion there can be no doubt that an order of this sort is interlocutory and not a final judgment within the meaning of rule 4. That rule provides that "In this rule the term final judgment includes any judgment, decree, order, or sentence, by which the rights of the parties are finally concluded with respect to the matters in question in the cause or matter, or any of them, not being a decision upon a mere matter of procedure." If this order had been made on an application for leave to sign final judgment summarily I think that the order would be a final judgment within the meaning of the rule. But an order dismissing an action on the ground that it is frivolous, or that the statement of claim does not disclose any substantial cause of action, is not final, because the actual facts are still open to be investigated between the parties if properly brought before the Court. This order does not fall within the terms of the definition of final judgment. The appeal, therefore, is too late. The Court, however, has power to enlarge the time for appealing. But no material on which we could grant such a concession is suggested in this case, and I think it would require a great deal more than the grounds set out in the notice of appeal to induce the Court to extend the time for appealing.

The application, therefore, must succeed. The notice of appeal will be set aside, and the plaintiff must pay the costs of the application.

Barton J.

concurred.

Notice of appeal struck out with costs.

Solicitors, for the applicants, Norton, Smith & Co.