Appellant v Respondents

1 On 22 November 2022, the appellant commenced proceedings against the respondents by writ and statement of claim seeking damages in respect of incidents of alleged false imprisonment, battery and assault in 2010 and 2012 respectively. As I will come to explain, those were 'police tort claims' within the meaning of s 73 of the Victoria Police Act 2013 (Vic) ('the VP Act').[1]

2 The appellant served the writ and statement of claim on the respondents on 28 April 2023, and, on 8 May 2023, the respondents filed and served a notice of appearance.

3 Notwithstanding that s 75(1) and (2) of the VP Act provide that a 'police tort claim' should be made against the State, and that the police officer or protective services officer concerned may be sought to be joined to such a proceeding in certain circumstances, it will be apparent that the plaintiff named certain alleged officers as defendants in his writ and that, in turn, an appearance was entered on behalf of 'the abovenamed [d]efendants'.

4 In any event, ordinarily, pursuant to r 14.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('the Rules'), a defendant must serve a defence as follows -

(a) where the indorsement of claim on the writ constitutes a statement of claim in accordance with Rule 5.04, within 30 days after filing the appearance;

(b) where the plaintiff serves a statement of claim, within 30 days after service of the statement of claim; or

(c) within such time as the Court directs.

5 That said, s 77(1) of the VP Act states that for the purposes of serving a defence to a 'police tort claim' -

... if, apart from this section, the State would be required to serve the defence within a specified period other than 60 days, that requirement is to apply as if the specified period were 60 days.

6 On 4 July 2023, the appellant filed an 'Affidavit in Support for Default Judgment of Debt' in which he deposed, relevantly, as follows -

1. The defendant failed to file & serve the defence within 30 days. That breaches section 14.04(a) of the Supreme Court (General Civil Procedure) Rules 2015.
2. As the respondent was default of defence. The plaintiff is seeking for an order for default judgment for debt pursuant to sections 21.02(1) and 59.01 of the Supreme Court (General Civil Procedure) Rules 2015.
3. Attached is an appropriate Form (60G) of Judgment or order for the "DEFAULT JUDGMENT FOR DEBT" referred to herein.[2]

7 That day, the Prothonotary entered default judgment against the 'defendant' for damages to be assessed. The judgment is described as having been obtained in circumstances in which the 'respondent was in default of defense (sic) [Rules 21.02]'. A copy of the judgment is attached to these reasons and marked 'Annexure A'.

8 The respondents were unaware that default judgment had been entered until 18 July 2023, when, by summons, the appellant sought that damages 'be assessed by an Associate Judge' ('assessment of damages application').

9 On 15 August 2023, pursuant to r 21.07 of the Rules, the respondents filed a summons seeking that the default judgment be set aside ('set aside application').

10 The set aside application and the assessment of damages application were each listed for directions before Ierodiaconou AsJ on 23 August 2023.

11 On that occasion, the appellant submitted that that an Associate Judge did not have authority to hear and determine the set aside application. Her Honour delivered ex tempore reasons for ruling that an Associate Judge does have such power. In particular, her Honour identified that the set aside application was made under r 21.07 and referred to s 17(1A) of the Supreme Court Act 1986 (Vic) ('SC Act') as well as relevant authority. Thereafter, her Honour stated as follows -

Rule 77.02 does not contain a limitation on the power of Associate Judges to hear an application to be set aside.

In terms of Rule 77.02(3)(c), dealing with liberty of the subject, the application for setting aside a default judgment is just that. The application itself is not capable of determining the liberty of subject. That Rule is not applicable for the application to set aside the default judgment.

In relation to Rule 59.08(2), that Rule is not applicable here for two reasons. Firstly, this is not a matter that falls within sub-rule 1(a) of Rule 59.08. Secondly, the application made by the defendants here is made under Rule 21.07.

In conclusion, an Associate Judge does have the power to hear the application to set aside.[3]

12 After so ruling, her Honour heard submissions concerning, among other things, the order in which the two applications would later be heard. In that connection, the appellant maintained that the set aside application was made pursuant to Order 58 of the Rules. Her Honour stated that Order 58 was not applicable and that she was dealing with an application made under r 21.07.

13 Her Honour made orders that seem to have been formalised on 25 August 2023. In 'Other Matters', her Honour recorded, relevantly, as follows -

1. The set aside application will be heard first, because its outcome determines whether the assessment of damages application can proceed. A directions hearing will be listed on the same day as the hearing of the set aside application, so that timetabling orders consequential to the outcomes of that hearing may be determined. If the set aside application fails, then the Court will make directions for the assessment of damages application. If the set aside application succeeds, then the Court will make directions for the future conduct of the proceeding.

14 It follows that the orders included directions with a view to the set aside application being heard on 4 October 2023.

15 On 4 October 2023, her Honour heard the set aside application and adjourned the matter to 6 October 2023 for ruling.

16 On 6 October 2023, her Honour delivered oral reasons and made orders, in substance -

(a) setting aside the default judgment entered on 4 July 2023;

(b) dismissing the appellant's assessment of damages application; and

(c) directed to the further conduct of the proceeding, including in relation to a foreshadowed application by the respondents for summary judgment.

17 In the course of her oral reasons, her Honour determined that -

(a) the default judgment had been entered irregularly, particularly because -

(i) s 77 of the Act gave the respondents 60 days to file a defence from filing their notice of appearance, and default judgment had been entered prior to the expiration of that period; and

(ii) although there were six defendants named or referred to in the proceeding, the default judgment was entered 'against a single defendant' and did not specify which defendant was liable for the default judgment; and

(b) even if the default judgment was entered regularly, her Honour would have set it aside for the following reasons -

(i) there was an arguable defence on the merits, namely that the appellant's claims were statute barred and that the principles of Anshun estoppel and res judicata would apply to the appellant's false imprisonment claims;

(ii) the delay in filing a defence was due to the respondents making enquiries and obtaining instructions in relation to the identities of the two unnamed defendants, and the respondents were plainly proceeding on the assumption that s 77 of the VP Act applied;

(iii) the set aside application was brought promptly after the respondents became aware of the default judgment; and

(iv) the prejudice that the respondents would suffer in losing the opportunity to properly defend the proceeding outweighed any prejudice to the appellant in having the default judgment set aside.[4]

18 On 10 October 2023, the appellant filed a notice of appeal from 'the whole judgment/order made or given by HER HON Associate Justice Ierodiaconou on 06/10/2023'.

19 The notice of appeal is in a discursive and somewhat confusing form and purports to identify five grounds of appeal. There is significant overlap in the points sought to be advanced.

20 In that regard, the appellant seems principally to contend that the set aside application was required to have been heard by a Judge, not an Associate Judge.[5] In that connection, the appellant variously submits that -

(a) r 59.08(2) required that the respondent or respondents 'appeal to a Judge' pursuant to rr 77.06 to 77.06.9;

(b) by r 77.02(1), an Associate Judge could not hear or give judgment or make any order at the trial of a proceeding;

(c) by r 77.02(3)(a), an Associate Judge could not hear and determine the set aside application, as it was 'required to be heard only by a Judge';

(d) by r 77.02(3)(c), an Associate Judge could not hear and determine the set aside application, as it was 'relating to the liberty of the subject';

(e) by r 77.04(1), the Associate Judge should have referred the matter to a Judge;

(f) r 71.01 did not confer authority upon an Associate Judge to make certain further orders made on 6 October 2023;[6] and

(g) her Honour similarly contravened various other rules of Court.[7]

21 The appellant also contends that her Honour erred in setting aside the default judgment on the grounds that -

(a) the default judgment was entered prematurely; and

(b) the respondents had or would have had an arguable defence on the merits.

22 In that general connection, the appellant filed and served written submissions, including written submissions in reply to those of the respondents.

23 The appellant developed his submissions in oral argument, particularly in connection with his 'main point' that the Associate Judge did not have power or authority to hear and determine the set aside application as well as with respect to any suggestion that the respondents might have an arguable defence on the merits.

24 For their part, the respondents submit that each of the appellant's contentions is misconceived and that her Honour had authority to hear and determine the set aside application and to make directions for the further conduct of the proceeding.

25 Among other things, the respondents submit that -

(a) the present appeal is in the nature of a rehearing and is brought under r 77.06, which means that the appellant must demonstrate error below;

(b) the Associate Judge had power, pursuant r 21.07, to hear and determine the set aside application;

(c) there is nothing in the Rules, the SC Act or any other Act that required that the set aside application be heard and determined by the Court of Appeal or a Judge of the Court;

(d) the set aside application was not an appeal under r 59.08(2);

(e) the set aside application was not a 'trial';

(f) the set aside application did not relate to the 'liberty of the subject' within the meaning of r 77.02(3)(c); and

(g) the Associate Judge did not hear and determine a summary judgment application.

26 The respondents also submit that the form of the appellant's notice of appeal suggests that he is primarily seeking to appeal the ruling and associated orders made by her Honour on 23 August 2023. The respondents contend that there was no error in respect of that ruling and orders, or in respect of her Honour's ruling and orders made on 6 October 2023.

27 As I have noted, the appeal is brought under r 77.06 and is by way of rehearing; meaning that the appellant must demonstrate a legal, factual or discretionary error in her Honour's decision to set aside the default judgment and make associated orders.[8]

28 Section 75A of the Constitution Act 1975 (Vic) provides that the Court is divided into the Trial Division and the Court of Appeal, and further states that -

(4) The Trial Division may be constituted by an Associate Judge in the case of a proceeding for which provision is made by an Act or enactment or by rules for the Court or the Trial Division to be so constituted.

29 Section 17(1A) of the SC Act governs the authority of Associate Judges within the Trial Division. It provides that -

The Trial Division constituted by an Associate Judge may hear and determine all matters, whether civil or criminal, not required by or under this Act or any other Act or the Rules to be heard and determined -

(a) by the Court of Appeal; or

(b) by the Trial Division constituted by a Judge of the Court.

30 In Goodenough v State of Victoria ('Goodenough'),[9] Keogh J confirmed that, under s 17(1A), the power and authority conferred on Associate Judges -

... is limited only to the extent that the [SC Act] and any other Act or the Rules require that a matter be heard and determined by the Court of Appeal or by the Trial Division constituted by a Judge of the Court.[10]

31 Order 77 of the Rules further addresses the authority of an Associate Judge.[11] In particular, it provides that -

(1) Subject to this Order, an Associate Judge, in addition to exercising the powers and authorities conferred by any other provision of these Rules, may, in any proceeding to which these Rules apply, give any judgment or make any order, including any judgment or order in the exercise of the inherent jurisdiction of the Court.

...

77.02 Limitations on authority

(1) Subject to paragraph (2) and Rules 12.12, 22.08(1)(d), 22.22(c), 32.08(3) and 77.01(2)(b), (c), (d), (e) and (f) -

(a) the trial of a proceeding shall not be held before an Associate Judge;

(b) an Associate Judge shall not give any judgment or make any order at the trial of a proceeding.

...

(3) An Associate Judge shall not have authority to hear and determine -

(a) any application which by these Rules or any Act is required to be heard only by a Judge of the Court or the Court of Appeal, as the case requires;

(c) subject to paragraph (d), any proceeding relating to the liberty of the subject;

(d) any criminal proceeding, other than an appeal or an application for leave to appeal to which Order 3A of Chapter VI applies;

(a) r 77.03 is directed to applications made to Associate Judges, and concerns, among other things, the circumstances in which an application, appeal or trial may be given to a Judge of the Court;

(b) r 77.04 is directed to the circumstances in which, among other things, an Associate Judge may refer an application to a Judge of the Court for determination;

(c) r 77.05 is directed to the circumstances in which, among other things, a Judge of the Court may refer a matter to an Associate Judge for determination;

(d) as I have noted, r 77.06 concerns appeals from a determination of an Associate Judge to a Judge of the Court; and

(e) r 77.08 concerns the circumstances in which an Associate Judge may hear and determine an application instead of the Associate Judge who would otherwise be hearing and determining it.

33 I have earlier extracted r 14.04 of the Rules and the relevant part of s 77(1) of the VP Act relating to the time period within which a defendant must file a defence in response to a 'police tort claim'.

34 Order 21 of the Rules concerns entry of judgment in default of appearance or pleading. Such a rule has long appeared in the Rules and their predecessors. Relevantly, order 21 provides -

(1) Where any defendant, being required to serve a defence, does not do so within the time limited, the plaintiff may enter or apply for judgment against that defendant in accordance with this Order unless Rule 2.07(1) of Chapter II applies.

...

21.07 Setting aside judgments

The Court may set aside or vary any judgment entered or given in accordance with this Order.

35 It will be noted that the relevant rules refer to applying for and entry of judgment. Order 60 addresses the authentication and filing of judgments and orders.

36 As I have noted, the appellant seeks to emphasise and rely upon r 59.08(2) of the Rules. Rule 59.08 concerns the powers of the Prothonotary and provides that -

(1) Except where federal jurisdiction is being exercised, the Prothonotary, in addition to performing the duties and exercising the powers and authorities imposed or conferred upon the Prothonotary by the Chief Justice or the Rules of the Supreme Court, may in any proceeding -

(a) make an order for the payment or taxation and payment of costs, including any reserved costs; and

(i) give judgment for the recovery of any debt or damages together with interest or damages in the nature of interest;

(iii) make an order for the payment out of court of money paid into court (other than money paid into court for the benefit of a person under disability);

(iv) make an order for the stay of execution.

(2) Any person affected by any order made by the Prothonotary under paragraph (1)(a) may appeal to a Judge of the Court, and Rules 77.06 to 77.06.9 shall apply, with any necessary modification, as if the appeal were an appeal from an Associate Judge to a Judge of the Court.

37 The main substance of the appellant's appeal is directed to the contention that the SC Act and the Rules did not authorise the Associate Judge to hear and determine the set aside application.

38 As I have noted, s 17(1A) of the SC Act identifies the authority of the Trial Division constituted by an Associate Judge. In particular, s 17(1A) states that an Associate Judge may hear and determine 'all matters' not required to be heard and determined by the Trial Division constituted by a Judge or by the Court of Appeal.

39 In that connection, in Goodenough, Keogh J confirmed that the plain and ordinary meaning of s 17(1A) is that 'an Associate Judge has the jurisdiction to hear and determine a matter ... unless such an application is otherwise required to be heard by a Judge of the Court'.[12] In that instance, the particular application was for an extension of time.

40 The structure evident in the SC Act, particularly s 17(1A), is reflected in and given effect to by Order 77 of the Rules. In that regard, as I have noted, the appellant variously submits that the set aside application fell within one or more stated limitations upon the authority of an Associate Judge.

41 In particular, albeit that in the course of his written and oral argument the appellant referred, often irrelevantly, to several further rules of Court, the centrepiece of his submission seemed to be that the set aside application was 'an appeal', or 'a trial', and for those or other reasons was 'required to be heard only by a Judge'. In that regard, he also submitted, specifically, that the set aside application and/or his underlying proceeding related to 'the liberty of the subject'.

42 As I have noted, much of the purported foundation for the appellant's various submissions was said to reside in the terms of r 59.08(2).[13]

43 I have earlier extracted the whole of r 59.08. In that connection, the appellant emphasised r 59.08(2) and contended that the set aside application was 'against a judgment/order; it must be an appeal'.[14]

44 In the course of oral argument, the appellant also emphasised the 'power hierarchy' within both the Court and the system of justice more generally and stated -

... for example ... if a judge of the court is [to] make a decision, ... [a party] cannot appeal to another judge, it will go to the higher jurisdiction.

... if I have a case in the County Court. If I want to appeal, I must come to the Supreme Court. I cannot appeal to the County Court, Your Honour. That is my main contention, Your Honour.[15]

45 As I understood it, the presently relevant substance of the appellant's submission was that -

(a) the default judgment entered by the Prothonotary constituted an order that must be appealed to a 'higher jurisdiction'; and

(b) the relevant 'higher jurisdiction' was a Judge, not an Associate Judge.

46 In general terms, the existence of the 'power hierarchy' to which the appellant refers may be accepted. However, for presently relevant purposes that hierarchy is established and delineated by the SC Act and the Rules.

47 In that regard, the particular rule upon which the appellant presently relies - namely, r 59.08(2) - is inapplicable; as the 'appeal' to which r 59.08(2) refers is specifically stated to be from an order made 'under paragraph (1)(a)' of r 59.08. Such an order is plainly identified as being 'for the payment or taxation and payment of costs, including reserved costs'. Self-evidently, the present judgment is not such an order. That alone should be sufficient to dispose of the present point.

48 However, the set aside application was also not an 'appeal' within the meaning of the Rules; nor was it in respect of an 'order', as opposed to a 'judgment'.[16]

49 In that connection, the Rules and their predecessors have long distinguished between the entry of judgment by the Prothonotary, which has been described as an act of 'a merely ministerial character',[17] and an order, typically made by a judicial officer of the Court.

50 Often, of course, a judgment will be reflected in an order of the Court, but that is not always so. The present instance is an example.

(a) r 21.02 provides that a plaintiff may 'enter or apply for judgment' in default of defence;[18]

(b) in turn, r 21.03 provides, relevantly, that the plaintiff may 'enter interlocutory judgment' for damages to be assessed by an Associate Judge unless the Court otherwise orders;

(c) it is for that reason that the present judgment (attached to these reasons and marked 'Annexure A') -

(i) is entitled 'Interlocutory default judgment for damages in default'; and

(ii) refers specifically having been obtained pursuant to r 21.02; and

(d) r 21.07 provides, specifically, that 'the Court may set aside or vary any judgment entered or given in accordance with this Order'.

52 It follows that the set aside application was not an appeal from an order made by a Judge or other judicial officer; it was an application made by summons pursuant to a specific provision of order 21, namely r 21.07. In that regard, it was an application to set aside a default judgment entered by the Prothonotary pursuant to an earlier provision of order 21, namely r 21.02.

53 Consequently, the appellant's various submissions to the effect that the set aside application was an 'appeal', or a 'trial', or was for any similar reason 'required to be heard only by a Judge', must be rejected.[19]

54 What I have said should be sufficient to dispose of the great majority of the points pressed by the appellant concerning the authority of the Associate Judge, although I should refer specifically to the appellant's submission that the Associate Judge did not have authority to hear and determine the set aside application because either it, or the underlying proceeding, was said to be a 'relating to the liberty of the subject' within the meaning of r 77.02(3)(c).

55 I have earlier noted that when rejecting that submission the Associate Judge observed, in substance, that the set aside application was not capable of determining or affecting the liberty of the appellant.

56 That observation was plainly correct, and the approach evident within it is in keeping with the settled construction of similar provisions. In that regard, whilst an underlying proceeding may involve allegations of past wrongful detention, it does not follow that any such proceeding (including, in the present instance, the set aside application) is properly to be regarded as concerning or relating to the liberty of the appellant within the meaning of such a provision.[20]

57 In light of the above, the further and specific contention that the Associate Judge did not have authority to hear and determine the set aside application as a consequence of r 77.02(3)(c) should also be rejected.

(a) it is sufficient simply to say that, for the reasons given, the Associate Judge had authority to hear and determine the set aside application;

(b) the appellant's various further submissions, including to the effect that the set aside application should have been referred by the Associate Judge to a Judge, or by a Judge to an Associate Judge, cannot be accepted; and

(c) the appellant's submission directed to whether the Associate Judge had authority to hear and determine an application for summary judgment do not arise, as that application has not yet been heard.[21]

59 As I have earlier noted, the appellant's further contentions are directed to her Honour's disposition of the set aside application. In that regard -

(a) for two separate reasons, her Honour accepted that the default judgment had been entered irregularly and should be set aside; and

(b) her Honour also accepted that the respondents would have demonstrated a 'defence on the merits' and, as a matter of discretion, set the default judgment aside.

(a) there were three distinct bases upon which her Honour determined or would have determined that the default judgment should be set aside; and

(b) it would be necessary for the appellant to impugn all of those three bases in order that the present appeal might succeed.

61 In light of the above, it is sufficient to consider at any length only the first of the bases upon which her Honour determined that the default judgment was entered irregularly. In that regard, in substance, her Honour accepted that -

(a) by writ and statement of claim, the appellant had made a 'police tort claim' within the meaning of s 73 of the VP Act;

(b) accordingly, s 77(1) of the VP Act applied;

(c) in that connection -

(i) the applicable rule of Court - namely, r 14.04(a) - specified a period for serving the defence of 'other than 60 days';

(ii) however, s 77(1) of the VP Act operated to alter that requirement so that it would be 'as if the specified period were 60 days';

(d) consequently, after filing the notice of appearance, the respondents had 60 days in order to file a defence - which meant that they would have had until 7 July 2023;

(e) however, default judgment was entered on 4 July 2023 and had therefore been obtained prematurely and irregularly and should be set aside.

62 The appellant sought to advance various arguments to the effect that her Honour erred, including, it was said, for the reason that the respondent or respondents had been required to apply for an extension of time within 30 days.[22]

63 It is presently sufficient to say, however, that I can see no error at all. Indeed, in my view -

(a) upon a straightforward reading of the applicable provisions, her Honour was plainly correct; and

(b) on the evidence, as default judgment had been irregularly obtained, it was proper that it be set aside.[23]

64 It follows that it is strictly unnecessary for me to address the appellant's further arguments directed to her Honour's separate reason for finding that the default judgment was obtained irregularly, as well as for otherwise concluding that the respondents would have demonstrated a defence on the merits and so the default judgment should have been set aside as a matter of discretion.

65 That said, I can see nothing at all erroneous in her Honour's conclusions that the respondents had demonstrated a defence on the merits. Among other things -

(a) s 5(3) of the Limitation of Actions Act 1958 (Vic), to which the appellant referred in argument, is plainly inapplicable to the circumstances of the present case; and

(b) it seems to have been quite open to her Honour to conclude that it was arguable that principles of res judicata and Anshun estoppel could apply to the appellant's false imprisonment claims.[24]

66 For completeness, I should add that having correctly set aside the default judgment as irregular, her Honour plainly had power to dispose of the otiose summons seeking that damages be assessed as well as to make directions for the further progress of the matter.

67 It follows from the above that none of the appellant's various arguments can be accepted and the appeal must be dismissed.

68 I will hear the parties in respect of final orders.

[1] I should say that there seems to have been an issue as to who the 5th and 6th respondents were and whether they were 'police officers'. The allegation that they were police officers is not made directly in the plaintiff's statement of claim, although it is a reasonable inference. The plaintiff has since made the allegation more clearly: see, for example, plaintiff's submissions filed 28 November 2023, [4(h)(ii)], and Transcript ('T') 9. For present purposes, it followed from the reasonable inference that the plaintiff alleged primarily that the 5th and 6th respondents were police officers that the allegation in respect of them was an alleged 'police tort claim' within the meaning of s 73 of the VP Act. Whether or not it is so that they were 'police officers' is a separate matter contemplated by the relevant provisions of the VP Act.

[5] In oral argument, the appellant confirmed that his 'main point' was whether the Associate Judge had power and authority to set aside any 'judgment and order' given by the Prothonotary: see, T4-5 and T20-21.

[6] In that regard, the appellant seems also to rely upon rr 34 and 58.10(6)-(7).

[7] The appellant's material refers to a large number of further rules of Court, including rr 77.03(2) and 77.05(1) in respect of which he contends that the set aside application should have been referred by a Judge to an Associate Judge or by an Associate Judge to a Judge. Among the many further rules referred to, the applicant seems to place reliance upon r 1.11 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic). It is presently sufficient to say that, on their face, none of the further rules of Court to which the appellant refers alter the outcome of the appeal and many of them are plainly irrelevant.

[8] Wilson v Building Commission of Victoria [2015] VSC 629, [8], Yamaha Music Australia Pty Ltd v Blakely [2016] VSC 391, [12].

[9] [2016] VSC 733 ('Goodenough').

[11] Cf., Supreme Court Act 1986 (Vic) s 25(1)(b).

[13] Particularly in oral argument, the appellant also referred to r 59.06(7): see, T36-37. However, that rule concerns consent judgments and is plainly inapplicable to the present circumstances.

[14] See, Plaintiff's submissions filed 28 November 2023, [4(e)(iv)] (AB 21).

[16] I note in passing the authorities concerning the difference between, on the one hand, r 21.07 and other similar rules in respect of judgments, and on the other, r 46.08 concerning 'an order': see, in particular, Collie v Merlaw Nominees Pty Ltd & Anor [2003] VSC 424, [21]-[24] and Scott v Casualife Furniture International Ltd & Ors [2005] VSC 463; (2005) 195 FLR 170, [18]-[19].

[17] The City Mutual Life Assurance Society Ltd v Giannarelli [1977] VicRp 53; [1977] VR 463, 469.

[19] For completeness, in respect of the appellant's contention that the hearing of the set aside application was or 'became' a 'trial', I note, of course, that it was not a trial, on evidence, of the appellant's claims for final relief, and that the orders made by her Honour did not finally dispose of the rights of the parties: cf., Carr v Finance Corporation of Australia Ltd [No.1] [1981] HCA 20; (1981) 147 CLR 246.

[20] See, Marriner v Smorgon [1989] VicRp 47; [1989] VR 485, 503-505 and Lovejoy v Carp [1999] VSCA 167, [15].

[21] Cf., T20-21. In any event, the Associate Judge plainly has such authority: see, Waddington v Magistrates' Court of Victoria and Kha [2013] VSC 101, [8]-[13] and [54].

[22] See, for example, Plaintiff's submissions filed 28 November 2023, [4(h)(i)] (AB 22).

[23] Cf., Gamble v Killingsworth & McLean Publishing Co. Pty Ltd [1970] VicRp 22; [1970] VR 161, 168-172, Jindra v Tech-Rentals Pty Ltd [1999] VSC 206, [7] and Carron Investments Pty Ltd v Lang & Anor [2016] VSCA 287, [51]-[52].

[24] Cf., Haque v State of Victoria; Haque v State of Victoria & Ors [2013] VCC 1035, Haque v State of Victoria & Ors [2013] VSCA 316, Haque v State of Victoria & Ors [2013] VSCA 332 and Haque v State of Victoria & Ors [2014] HCASL 86.