Maybury v Atlantic Union Oil Co Ltd [1953] HCA 89

High Court of Australia Dixon C.J. Fullagar and Taylor JJ. Maybury v Atlantic Union Oil Co Ltd [1953] HCA 89

ORDER Appeal dismissed with costs.

The judgment of the Court was delivered by Dixon C.J.

Dixon C.J., Fullagar and Taylor JJ.

We are of opinion that this appeal should be dismissed.

The appeal arises from an action which was placed in the commercial causes list. The cause of action upon which the plaintiff sued is one which the appeal does not bring before us. It was conceded in the Supreme Court that to that cause of action the defendants appellants had no valid answer. But there were two pleas filed by way of cross action, and it is matter raised by those pleas which does come before us upon this appeal. The proceeding in the Supreme Court took not a usual course. Before the action came to trial an order was made raising as preliminary questions certain questions of law. Two of those questions are now submitted for our consideration. They were decided by the learned judge in favour of the plaintiff and judgment in the action was then entered for the plaintiff without the action going to trial. The judgment was entered in the action without going to trial by consent of the defendants, and a difficulty certainly exists in the path of the defendants as appellants by reason of the course the proceedings took. For it seems reasonably clear that any right of appeal from the decision against them on the points raised which they had prior to judgment being entered would only be by leave, because it was an interlocutory order. Their consent to the entry of a judgment without going to trial was no doubt logical, because the intervening proceedings could not have served a useful purpose. But the course taken may be insufficient to convert what was an interlocutory order into a final order for the purposes of their bringing an appeal as of right. There are also other difficulties which it is not useful at the moment to discuss, for we base our judgment upon the substance of the matter.