Rubin v Eacott [1912] HCA 55

386 HIGH COURT

(HIGH COURT OF AUSTRALIA.)

RUBIN F , : ee ' DEFENDANT, AND EACOTT . 8 _ , 5 f . RESPONDE! PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF WESTERN AUSTRALIA.

H.C. or A. Practice—High Court—A ppeal from Supreme Court of State—Leave to appea 1912. Interlocutory judgment—Grounds for refusal—Application to set aside judg-

— ment—Affidavit of merits. . Sypyey, : - i pag 8s! Where an interlocutory judgment is regular, an application to set it asid

should be supported by an affidavit of merits.

Barton and Isaacs JJ. Although leave to appeal to the High Court from an interlocutory judg

ment of the Supreme Court of a State is granted almost asa matter of cou it will be refused where the proposed appeal is, on the material presented the High Court, hopeless.

Leave to appeal from the Supreme Court of Western Australia refused.

APpLicaTION for leave to appeal. By writ dated 15th November 1911 Joseph John Eacot brought an action in the Supreme Court of Western Australi

property. The defendant was out of the jurisdiction of Court but he had an attorney under power, Abraham Dav: residing at Broome in Western Australia, who was convers with the matters out of which the action arises. On 12th January 1912 a conditional appearance was entered for

15 C.LR.] OF AUSTRALIA. a

. service of the writ was dismissed, and there was no appeal against that dismissal. On 23rd March the statement of claim was delivered, and was amended on 16th April. Before the time for delivering the defence had expired Davis was drowned. - Interlocutory judgment was signed by the plaintiff on 9th July, and asummons by the defendant to set aside the interlocutory judgment was dismissed, no affidavit that the defendant had a 3 good defence on the merits having been filed. From the order _ dismissing that summons the defendant appealed to the Full 4 Court, and on 25th July the appeal was dismissed. 7 From that decision the defendant now asked for leave to appeal to the High Court. |