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[2003] HCA 70
respondent. Appeal struck out as incompetent.
The High Court treated the refusal to let Luck issue her proposed court documents as an interlocutory order, because it did not finally decide her underlying rights. An appeal from that kind of order required the Court's permission. Since Luck had not obtained permission, her purported appeal could not proceed and was struck out. The Court also said that leave would have been refused in any event because the proposed claim disclosed no cause of action against the named defendants.
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1,870 words · generated 05/10/2026
In Re Luck [2003] HCA 70, the High Court considered whether Gaye Alexandra Mary Luck could appeal as of right from an order refusing her leave to issue proposed court process. The Court comprised McHugh ACJ, Gummow and Heydon JJ. It struck out the appeal as incompetent.
No linked legislation citations have been extracted yet.
The procedural sequence mattered. On 14 November 2000, Callinan J made a direction under O 58 r 4(3) of the High Court Rules. Its effect was that the Registrar could not issue Luck's writ of summons or statement of claim without leave from a Justice. On 30 November 2000, Gleeson CJ refused that leave. Luck then filed a notice described as an ex parte appeal as of right ([1]).
The proposed writ named 32 defendants, among them judges of the High Court, the Supreme Court of Victoria and the Federal Court, the Commonwealth Attorney-General, medical officers and an unnamed Federal Police telephonist. The Court agreed with Gleeson CJ that the statement of claim disclosed no cause of action against any defendant. It also noted that the defendants had little in common, apart from Luck's allegation that each had tortured her ([2]). The Court did not need to examine the proposed claims in detail to decide the appeal's competency.
The legal question was whether the refusal of leave was a final or interlocutory judgment. If interlocutory, s 34(2) of the Judiciary Act 1903 (Cth) required leave to appeal. No leave had been granted. The Court concluded that the order was interlocutory and struck out the purported appeal ([3], [11], [14]).
The Court began with s 34 of the Judiciary Act. Subsection (1) gives the High Court jurisdiction to hear appeals from judgments of Justices exercising its original jurisdiction. Subsection (2) qualifies that jurisdiction: an appeal from an interlocutory judgment cannot be brought without the High Court's leave ([3]).
The Court applied the legal-effect test. Drawing on Bienstein v Bienstein and Carr v Finance Corporation of Australia Ltd [No 1], it explained that the relevant question is whether the order, as made, finally determines the parties' rights in the principal cause. The order's legal effect, rather than its label or practical importance alone, determines whether it is final or interlocutory ([4]).
The refusal of leave did not finally determine Luck's legal rights against the proposed defendants, “if she has any such rights” ([5]). Instead, it prevented the proposed process from issuing or being served. The Court characterised the order as refusing leave to serve documents that appeared on their face to be an abuse of process or a frivolous or vexatious proceeding ([5]). That distinction was decisive: the proceeding had been stopped at the process-control stage, but the order did not finally adjudicate a substantive cause between Luck and the proposed defendants.
The Court then considered authority on orders stopping proceedings because they were frivolous, vexatious or abusive, or disclosed no reasonable cause of action. It described a longstanding line of authority treating such orders as interlocutory. It referred to Hunt v Allied Bakeries Ltd, where Lord Evershed MR said that orders dismissing actions on those grounds had long been treated as interlocutory ([6]). It also discussed Tampion v Anderson, in which the Judicial Committee of the Privy Council treated orders staying proceedings for defamation and misfeasance of office on similar grounds as interlocutory ([7]).
The High Court acknowledged that Privy Council decisions no longer bound it and that it had not previously expressly decided that orders in all these categories were interlocutory. It nevertheless found its own earlier decisions consistent with that position, referring to Pye v Renshaw, Hall v Nominal Defendant, Carr, and Bienstein ([8]). It saw no valid reason to depart from the rule stated in Tampion ([9]).
The resulting rule was expressed broadly: an order is interlocutory when it stays or dismisses an action, or refuses leave to commence or proceed with one, because the action is frivolous, vexatious, an abuse of process, or does not disclose a reasonable cause of action ([9]). The Court applied that rule both to Callinan J's direction and to Gleeson CJ's refusal of leave to proceed ([10]).
Before Re Luck, the judgment described a substantial body of authority supporting the interlocutory classification. It referred to English decisions, including In re Page; Hill v Fladgate and Hunt, and to the Privy Council's decision in Tampion ([6]-[7]). The High Court said that, when Tampion was decided, the Privy Council was Australia's final court of appeal for matters of that kind, so its advice bound Australian courts at that time ([7]).
The Court also identified Australian High Court decisions it considered consistent with the rule. In Pye, an order dismissing a suit if the pleading was not amended within 21 days was held interlocutory. In Hall, refusal of an extension of time in which to sue was held interlocutory, and Taylor J referred with approval to the English rule concerning orders striking out claims on specified grounds. The Court also discussed Carr and Bienstein as examples of orders treated as interlocutory ([8]).
The contribution of Re Luck was to state expressly that the same classification applies to orders that stop or prevent proceedings because they are frivolous, vexatious, abusive, or fail to disclose a reasonable cause of action. The Court acknowledged the absence of a prior express decision of the High Court on that precise point, then adopted the rule in light of the authorities and the absence of a reason to depart from Tampion ([8]-[9]).
The supplied judgment does not contain decisions made after 4 December 2003. It therefore provides no basis to describe how later courts actually treated Re Luck. Nor does it establish the current status of the High Court Rules or later statutory amendments. Those matters would require sources beyond this judgment.
At [4], the Court states: “If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order.” In plain English, the classification depends on what the order legally does. A ruling may have a major practical impact and still be interlocutory if it does not finally determine the substantive rights in the principal cause.
At [5], the Court says the refusal “did not finally determine Ms Luck's rights against the various defendants, if she has any such rights.” The order prevented the process from proceeding without leave. The Court treated that as different from a final adjudication of the underlying claims.
At [9], the Court states that orders stopping or blocking proceedings because they are frivolous, vexatious, abusive, or disclose no reasonable cause of action are interlocutory. This is the judgment's central procedural rule. Its significance is that a party cannot assume that an order ending or halting a proposed proceeding is necessarily final for appeal purposes.
At [11], the Court concludes that the appeal was “incompetent.” In context, this means the appeal had been brought without a procedural precondition: leave was required under s 34(2), and the Court had not granted it.
At [12]-[13], the Court adds an alternative point. It says that if Luck had sought leave, the Court would have refused it, because leave requires both sufficient doubt about the challenged decision and an interest in the administration of justice, and the proposed pleading disclosed no cause of action against any of the 32 defendants. That observation was not needed to reach the disposition, which followed from the absence of leave.
The principle stated in Re Luck is engaged where an appeal is brought from an order made in the High Court's original jurisdiction that stops or prevents a proceeding on one of the identified grounds: frivolity, vexatiousness, abuse of process, or failure to disclose a reasonable cause of action ([9]-[10]). The immediate example was an order refusing leave to issue process after a direction under O 58 r 4(3) made leave necessary ([1], [5]).
The judgment's reasoning is not confined to the precise fact that a proposed writ named 32 defendants. The classification rule is framed by reference to the legal effect and stated basis of the order, not the number or identity of the proposed defendants ([4], [9]). The nature of the underlying allegations was relevant to the Court's alternative statement about prospects, but the competency ruling turned on the interlocutory character of the order and the absence of leave ([11]-[13]).
The judgment also discusses orders that stay or dismiss existing actions on the same grounds, not only refusals of leave to issue process ([9]). It distinguishes the procedural question of appealability from the substantive merits of a claimant's underlying rights. The Court did not decide those rights in this matter.
The supplied judgment contains no post-2003 decisions, so it cannot establish how later courts have applied, followed, distinguished or limited Re Luck. The judgment itself does, however, explain the authorities it relied on at the time.
It adopted the approach in Tampion v Anderson, describing that decision and the longstanding authorities it discussed as supporting interlocutory treatment ([7], [9]). It also considered Pye, Hall, Carr and Bienstein consistent with that approach ([8]). The Court's reasoning was therefore one of synthesis: it acknowledged that no High Court case had expressly stated the precise rule, but considered the existing line of authority sufficient to adopt it ([8]-[9]).
A researcher seeking to assess subsequent treatment would need later judgments and authoritative legal sources not included in the supplied text. No claim about subsequent approval, application or qualification can be made from this judgment alone.
The judgment resolves the classification issue on its facts, but leaves matters that cannot be answered from the text alone. It does not detail how the interlocutory classification would apply to orders made under different procedural rules or statutory regimes. Its express rule concerns orders stopping or preventing proceedings for the grounds listed at [9].
The Court also does not analyse the proposed causes of action or explain, defendant by defendant, why the pleading disclosed no cause of action. It records its agreement with Gleeson CJ's conclusion and makes a general statement about the proposed writ and statement of claim ([2], [13]). The judgment therefore should not be read as supplying a detailed substantive analysis of the allegations.
Nor does it decide what procedural avenues, if any, might have remained available to Luck after leave to issue process was refused. The Court's point was narrower: the refusal did not finally determine whatever underlying rights she might have, and an appeal from that interlocutory order required leave ([5], [9]-[11]).
Finally, the judgment states the test for a grant of leave in general terms: sufficient doubt about the challenged decision and consistency with the interests of the administration of justice ([12]). It does not develop a broader account of how those considerations are to be weighed in other factual settings. Those questions require additional authorities and procedural context.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
McHUGH ACJ
GUMMOW AND HEYDON JJ
IN THE MATTER OF AN APPEAL BY GAYE ALEXANDRA MARY LUCK APPELLANT
In the matter of an appeal by Gaye Alexandra Mary Luck
[2003] HCA 70
4 December 2003
M11/2001
ORDER
Appeal struck out as incompetent.
On appeal from the High Court of Australia
Representation:
The appellant appeared in person
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
IN THE MATTER OF AN APPEAL BY GAYE ALEXANDRA MARY LUCK
Appeal against order refusing leave to issue process – Whether leave to appeal required – Where proposed action frivolous, vexatious or an abuse of process – Whether order final or interlocutory.
Judiciary Act 1903 (Cth), s 34(2)
McHUGH ACJ, GUMMOW AND HEYDON JJ. Ms Gaye Alexandra Mary Luck has filed an appeal against a decision of Gleeson CJ delivered on 30 November 2000. The notice of appeal is described as an ex parte appeal as of right. His Honour had refused to give Ms Luck leave to issue a writ of summons and statement of claim that had been the subject of a direction by Callinan J, made on 14 November 2000, under O 58 r 4(3) of the High Court Rules. The effect of the direction was that the Registrar could not issue the writ or statement of claim without the leave of a Justice.
The writ of summons that the appellant sought to issue named 32 defendants including judges of the High Court, the Supreme Court of Victoria and the Federal Court of Australia, the Attorney-General of the Commonwealth, medical officers and an unnamed telephonist employed by the Federal Police. Chief Justice Gleeson held that the statement of claim disclosed no cause of action against any defendant, a holding with which we entirely agree. Not only does the writ and statement of claim fail to disclose any recognisable cause of action against any individual defendant, but they seek to join as defendants in one action many people who have nothing in common except that the applicant claims that each of them has tortured her.
Leave to appeal is required
"(1) The High Court shall, except as provided by this Act, have jurisdiction to hear and determine appeals from all judgments whatsoever of any Justice or Justices, exercising the original jurisdiction of the High Court whether in Court or Chambers.
(2) An appeal shall not be brought without the leave of the High Court from an interlocutory judgment of a Justice or Justices exercising the original jurisdiction of the High Court whether in Court or Chambers."
In making the order refusing leave to issue process, Gleeson CJ was exercising the original jurisdiction of the Court to control its own processes. The question then is whether the judgment from which Ms Luck has "appealed" is final or interlocutory. As McHugh, Kirby and Callinan JJ stated in Bienstein v Bienstein1, 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 not2. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order.
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".
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 order3. In 1956 in Hunt v Allied Bakeries Ltd4, 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."
The long line of cases to which Lord Evershed referred was confirmed in Tampion v Anderson5, a decision of the Judicial Committee of the Privy Council on a petition for special leave to appeal against orders of the Supreme Court of Victoria*.* In Tampion, the Judicial Committee held that orders staying actions for defamation and misfeasance of office on the ground that they were frivolous, vexatious and an abuse of process were interlocutory orders. Lord Kilbrandon, giving the advice of the Judicial Committee, said6 that "a consistent line of authority" left "no doubt" that such orders were interlocutory. His Lordship said7 that the "matter is really put beyond doubt" by Hunt8 and cited the above statement of Lord Evershed. When Tampion was decided, the Judicial Committee of the Privy Council was the final court of appeal for Australia for matters such as those involved in that case. Consequently, the advice of the Judicial Committee in Tampion was binding on all Australian courts including this Court.
Privy Council decisions no longer bind this Court. Moreover, no case in this Court has expressly decided that interlocutory orders include an order dismissing an action because it is frivolous, vexatious, an abuse of process or because it fails to disclose a reasonable cause of action. But a number of cases decided in this Court before and after Tampion are consistent with the view that an order falling within any of these categories is an interlocutory order. In Pye v Renshaw9, the Court held that an order dismissing a suit if no amendment were made to the statement of claim within 21 days was an interlocutory order. In Hall v Nominal Defendant10, the Court held that an order refusing an extension of time in which to sue was an interlocutory order. Taylor J referred11 with evident approval to the rule, established in England, that an order striking out a claim on the ground that it was frivolous, vexatious or an abuse of process or that it disclosed no cause of action was interlocutory in nature. In , 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 , 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.
Application for leave would be refused in any case
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.
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
(2003) 195 ALR 225 at 230 [25]. ↩
Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at 248, 256. ↩
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. ↩
[1956] 1 WLR 1326 at 1328; [1956] 3 All ER 513 at 514. ↩
(1973) 48 ALJR 11 at 12; 3 ALR 414 at 416. ↩
(1973) 48 ALJR 11 at 12; 3 ALR 414 at 416. ↩
(1973) 48 ALJR 11 at 12; 3 ALR 414 at 417. ↩
[1956] 1 WLR 1326; [1956] 3 All ER 513. ↩
(1951) 84 CLR 58 at 77. ↩
(1966) 117 CLR 423. ↩
(1966) 117 CLR 423 at 440. ↩
(1981) 147 CLR 246. ↩
(2003) 195 ALR 225. ↩
(2003) 203 ALR 1
(2003) 78 ALJR 177
(2003) 195 ALR 225
(1981) 147 CLR 246
(1973) 48 ALJR 11
(1951) 84 CLR 58
(1966) 117 CLR 423
Appeal struck out as incompetent.
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.
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.
Accordingly, the "appeal" filed was incompetent.