4.
Corporation of Australia Ltd [No 1][1], the Court held that an order of the Supreme Court of a State refusing to set aside a judgment obtained upon the default of the defendant in delivering a defence was an interlocutory order. In Bienstein[2], the Court found that orders made by a single Justice (a) to dismiss an application to disqualify himself from hearing the application for removal, and (b) to remove particular causes pending in the Family Court into the High Court, were interlocutory orders.
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.
10 A Justice who makes an order made under O 58 r 4 does so because it appears that the process filed is frivolous, vexatious or an abuse of process. The order made by Callinan J was therefore an interlocutory order, as was the order of Gleeson CJ refusing leave to proceed.
11 Accordingly, the "appeal" filed was incompetent.
Application for leave would be refused in any case
12 Even if Ms Luck had sought leave to appeal against the decision of Gleeson CJ, we would have refused her application. An application for leave should establish both that the decision, the subject of the proposed appeal, is sufficiently doubtful to warrant a grant of leave and that it is in the interests of the administration of justice for this Court to hear it.
13 The writ of summons that Ms Luck attempted to file does not disclose a cause of action against any of the 32 defendants listed. A grant of leave would be futile because an appeal would have no prospect of success.
Order
14 The appeal is struck out as incompetent.
