Case: Re Luck [2003] HCA 70 ; (2003) 203 ALR 1
Outcome: followed
In a later decision of the High Court, Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 (' Luck '), Gleeson CJ had refused Ms Luck leave to issue a writ of summons and statement of claim which had been the subject of a direction made by Callinan J pursuant to O 58 r 4(3) of the High Court Rules. The question before the Court was whether Gleeson CJ's order was final or interlocutory. 38 The Court in Luck , after referring with approval to the dicta of Lord Evershed in Hunt v Allied Bakeries Ltd (1956) 3 All ER 513 at 514, said at [9]: 'Given the long-established English rule, the decision in Tampion and our decisions in Pye, Hall, Carr and Bienstein, we see no valid reason for departing from the rule laid down in Tampion . An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.' 39 Their Honours did not refer to Anshun (No 1) in Luck . 43 The disagreement amongst judges was adverted to by Selway J in S1000 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 285 where he said: '2 The original application made by the applicant was by Notice of Appeal. There may be some disagreement in the cases as to whether an order dismissing an action on the basis that it is vexatious and or an abuse of process is an interlocutory order, contrast Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at 4, [9] , and Port of Melbourne Authority v Anshun [1980] HCA 41 ; (1980) 147 CLR 35. As the decision of the High Court in Re Luck is the most recent, I should follow it. This is consistent with other recent practice in this court. I refer, for example, to the decisions of the Full Court of this Court in Wride v Schulze [2004] FCAFC 216 , Lindsey v Philip Morris Limited [2004] FCAFC 40 , and in Johnson Tiles Pty Limited v Esso Australia Pty Limited [2000] FCA 1572 ; (2000) 104 FCR 564, [43].' 44 Branson J followed that decision in SZDEG v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 748 and said: '8 It does not appear that either the Full Court of this Court or the High Court has given express consideration to the present status of Anshun No 1 . I am thus placed in the difficult position of deciding which of the above decisions of my colleagues I should follow. With some hesitation, and with great respect to Kenny J, I have concluded that the view adopted by Selway J is the preferable view. The unqualified nature of the statement in Re Luck at [9] which is highlighted in [4] above seems to me to carry considerable weight as it was made in a case decided after Anshun No 1. Additionally, I note that the Full Court in Wride v Schulze [2004] FCAFC 216 placed reliance on Re Luck at [9] and made no reference to Anshun No 1. 9 I conclude that the judgment of the Federal Magistrates Court in respect of which the notice of appeal was filed is an interlocutory judgment. As mentioned above, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) operates to prevent an appeal being brought from an interlocutory judgment of the Federal Magistrates Court unless the Court or a judge gives leave.' 45 The respondent, on this application, has urged me to follow the decisions which followed Luck rather than Anshun (No 1) . In Lashansky v Bruvecchis Pty Ltd [2005] FCAFC 64 , the Full Court of the Federal Court, of which I was a member (Madgwick, Lander and Crennan JJ), considered the decision of the High Court in Luck , the earlier decision of the Privy Council in Tampion v Anderson , and the earlier decision of the English Court of Appeal in Hunt v Allied Bakeries Ltd , and concluded that an order dismissing an action because it does not disclose a reasonable cause of action was interlocutory. In that case, the decision in Anshun (No 1) was not cited to the Court. 47 The High Court said in Luck at 2: 'That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order.' (Footnote omitted.) 49 In those circumstances, I am disposed to follow the decisions which have followed Luck and proceed upon the basis that leave to appeal is required.