Rubin v Eacott [1912] HCA 55; (1912) 15 CLR 386 (23 August 1912)

HIGH COURT OF AUSTRALIA

Rubin Defendant, Appellant; and Eacott Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of Western Australia.

23 August 1912

Barton and Isaacs JJ.

Loxton K.C. (with him Pilcher), for the appellant.

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 delay, or expense, or both. In the present case there is before us a judgment of the Supreme Court of Western Australia from which it is sought to appeal. I do not say that on an application of this kind it is necessary to show a primâ facie case that the judgment sought to be appealed from is erroneous. But, on the other hand, this Court in the exercise of its discretion will look at the judgment, the materials before the Court which delivered it and the reasons for the judgment, and if this Court sees that the appeal would be absolutely hopeless it does not feel itself impelled to grant leave to appeal. That is precisely the case here. The Supreme Court of Western Australia was obviously right in refusing the motion to set aside the interlocutory judgment for the plaintiff without the customary evidence that a good defence on the merits existed. Such an affidavit could easily have been obtained if there had been facts to warrant it. To grant leave now would be to grant leave to prosecute an appeal which, on the face of it, is wholly without a prospect of success. This is not a case in which the Court merely thinks that on the whole the judgment sought to be appealed from is right. That might not by itself be a sufficient reason to refuse leave. It is a case in which the leave of the Court is asked to do something which on the face of the case presented is hopeless. On that ground I think that leave to appeal should be refused.

Isaacs J.

I quite agree. It is the practice of this Court to exercise with very great latitude its jurisdiction to grant leave to appeal from an interlocutory judgment, where the granting of such leave may intercept the waste of money. In some instances when an interlocutory judgment has been signed and the matter then has to go to an assessment of damages, the expenses in connection with that assessment in the end might be thrown away if leave to appeal were not granted. This Court in such a case would not scrutinize very closely whether the appeal would ultimately succeed or not. But it is also to be borne in mind that by granting leave to appeal there is interposed an extra expense in the appeal, and some discretion must be exercised.

A consistent line of authority extending over a very long period and supported by a very high Court, recognizes, without exception, the rule that an application to set aside a judgment must be supported by an affidavit of merits, and there is no suggestion of any weight that that rule should have been departed from in this instance. To grant leave to appeal would, in my opinion, be simply throwing away money on both sides and would probably cause great injustice in delaying the assessment of damages. According to Burnside J. the defendant has for a very long period been in possession of the plaintiff's property and no reason or excuse is given. Further, an inconsistent position is taken up at the bar—not improperly by counsel, but very improperly from the standpoint of seeing that injustice is not done to the plaintiff. It is said that the defendant ought to be allowed to show that he did not authorize the acts complained of, and yet when asked whether he is prepared to disavow them, counsel says that he is not. I think that a defence on the merits ought to be shown where the judgment is regular. That is a position which ought to weigh very strongly with this Court when asked to grant leave to appeal. I therefore agree that leave should be refused.

Leave to appeal refused.

Solicitors, for the appellant, Leibius & Black for W. Clarke-Hill, Broome, W.A.