Clarke v Union Bank of Australia Ltd [1917] HCA 19; (1917) 23 CLR 5 (17 May 1917)

HIGH COURT OF AUSTRALIA

Clarke and Another Defendants, Appellants; and The Union Bank of Australia Limited Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

17 May 1917

Barton A.C.J., Isaacs and Rich JJ.

Pigott (with him Starke), for the appellants.

Mitchell K.C. (with him Eager), for the respondent.

Barton A.C.J.

It is not my duty to say anything which can be construed as a decision by this Court on the construction of the Moratorium Regulations. This is not the time to discuss the correctness of the opinion of the Court below on that question. It is enough, so far as this appeal is concerned, to say that this is a case that ought to be heard. I think that the principle to be applied cannot be better stated than it was by Lord Halsbury in Jones v. Stone[1]. Speaking of Order XIV., he said:—"The proceeding established by that order is a peculiar proceeding, intended only to apply to cases where there can be no reasonable doubt that a plaintiff is entitled to judgment, and where, therefore, it is inexpedient to allow a defendant to defend for mere purposes of delay. The present case is not one of that kind." That is what I think of the case now before us. I think that there is an arguably good defence open to the defendants, and, therefore, that they ought to be heard.

The order appealed from should be set aside, and the defendants should have leave to defend, on undertaking to file their defence within seven days. I think also that the costs of the summons should be costs in the cause, and that the costs of this appeal should be the defendants' costs in the cause.

Isaacs J.

I agree.

Rich J.

I agree.

Appeal allowed. Order appealed from set aside. Defendants to have leave to defend on undertaking to file their defence within seven days. Costs of summons to be costs in the cause. Costs of appeal to High Court to be defendants' costs in the cause.

Solicitors for the appellants, Corr & Corr.

Solicitors for the respondent, McLaughlin & Eaves.

[1] (1894) A.C., at p. 124.