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2.

Bienstein[1], the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not[2]. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order.

5 The order of Gleeson CJ refusing to grant leave to issue process was an interlocutory order. It did not finally determine Ms Luck's rights against the various defendants, if she has any such rights. An order refusing to grant leave after an O 58 direction has been made does not finally determine the legal rights of the parties. It does no more than refuse leave to serve the process, the subject of the direction, on the defendant or defendants. In this case, Callinan J made the direction that he did because the case was within O 58 r 4. On their face, the writ and statement of claim appeared "to be an abuse of the process of the Court or a frivolous or vexatious proceeding". The order of Gleeson CJ, therefore, refuses leave to serve documents that on their face are "an abuse of the process of the Court or a frivolous or vexatious proceeding".

6 For more than a century, courts, including courts of the highest authority, have consistently held that an order staying an action on the ground that it is frivolous, vexatious or an abuse of process is an interlocutory order[3]. In 1956 in Hunt v Allied Bakeries Ltd[4], Lord Evershed MR said:

"After consulting with the Chief Registrar and looking at the case[s], and also after consultation with my colleagues, I am left in no doubt at all that, rightly or wrongly, orders dismissing actions – either because they are frivolous and vexatious, or on the ground of disclosure of no reasonable cause of action – have for a very long time been treated as interlocutory."

  1. ↑ (2003) 195 ALR 225 at 230 [25].
  2. ↑ Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at 248, 256.
  3. ↑ In re Page; Hill v Fladgate [1910] 1 Ch 489; Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326; [1956] 3 All ER 513; Tampion v Anderson (1973) 48 ALJR 11; 3 ALR 414. And see Price v Phillips (1894) 11 TLR 86.
  4. ↑ [1956] 1 WLR 1326 at 1328; [1956] 3 All ER 513 at 514.
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