Carr v Finance Corporation of Australia Ltd [1981] HCA 20

High Court of Australia Gibbs C.J. Mason and Murphy JJ. Carr v Finance Corporation of Australia Ltd [1981] HCA 20

ORDER Allow the objection to competency. Dismiss the appeal as incompetent. Grant special leave to appeal, limited to exclude consideration of any issues of fact not raised in the Supreme Court. Order that the costs of the hearing of the objection to competency and of the application for special leave to appeal be costs of the appeal.

Cur. adv. vult.

The following written judgments were delivered:—

1981, May 12 Gibbs C.J.

The appellants were the defendants in an action brought in the Supreme Court of New South Wales by the respondent to recover moneys due for principal and interest payable under a number of mortgages given by the appellants to the respondent over lands in Sydney. The respondent obtained judgment by default. The appellants subsequently applied to a Master to set aside the default judgment, and when that application was refused, appealed to the Court of Appeal. Their appeal having been dismissed, the appellants appealed to this Court. The respondent has objected to the competency of the appeal, and the appellants have sought special leave to appeal in case the appeal should be held to be incompetent.

The respondent submits that the appeal is incompetent because the judgment appealed from is not a final judgment within s. 35 of the Judiciary Act. The question whether a judgment is final or interlocutory for the purpose of the rules relating to appeals is one productive of much difficulty. The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v. Corney [1] . An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside: Hall v. Nominal Defendant [2] . In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application. The appellants here submit that their right to make a further application is purely theoretical, since any such application must necessarily fail, and urge that in these circumstances the judgment should be regarded as a final one.