18(1) of the Defacto (sic) Relationships Act. 3. The Defendant to pay to the Plaintiff damages to be assessed by this Honourable Court plus costs." 8. No affidavit proving the default in serving a Defence has ever been filed as required by r21.02(2); accordingly, the judgment was entered irregularly and should be set aside, ex debito justitiae. Further, the relief sought in the Writ (p3) fell within r21.04; that Rule required that an application to the Court be made to obtain judgment. It was not open to enter judgment under r21.03(1) in these proceedings. These matters are sufficient to dispose of the application to set aside the judgment but since that application was neither grounded nor argued on this basis it is better that I deal with it on the submissions which were made. 9. On 3 October 1994 Terrill and Associates filed notice of their appointment to act for the defendant, under r20.02. THE DEFENDANT'S SUBMISSIONS 10. Ms Terrill of counsel for the defendant submitted that the default judgment of 2 August 1994 should be set aside, for 3 reasons. First, it was obtained irregularly, in that pursuant to r4.05(b) (see p6) a proceeding under the Act must be commenced by originating motion, and not by Writ, as here. Although this irregularity involved merely a procedural point it was one which had had "dire consequences" for the defendant. Order 21, providing for judgment in default of pleading, applied "only to a proceeding commenced by Writ"; see r21.01(1). Had the proceeding been commenced by originating motion, as it should have been, the plaintiff could not have obtained judgment without prior notice to the defendant; see O45. 11. Second, the defendant in fact had a "defence to the proceedings". Ms Terrill relied on the defendant's affidavit of 4 October 1994, in particular paragraph 16, annexure "B". It is clear that the defendant has an arguable defence; Ms Hussin of counsel for the plaintiff does not really contest this. 12. Third, the default judgment had been 'snapped on' without prior notice to the defendant. THE PLAINTIFF'S SUBMISSIONS 13. Ms Hussin conceded at the outset that it was not inappropriate for the plaintiff to consent to the default judgment being set aside provided the defendant paid the plaintiff's costs which had been thrown away. As to the plaintiff's entitlement to those costs she relied on the general rule as to costs when a default judgment which has been regularly entered is set aside; see, for example, in Re Zagoridis; Ex P Q'plas Group Pty Ltd [1990] FCA 459; (1990) 98 ALR 718 at 723 and Bee v Bush and anor (unreported, Kearney J, 14 September 1994, at p5). Unless the plaintiff's costs thrown away were paid, she would not consent to setting aside the judgment. 14. Ms Hussin relied on 2 submissions. First, as to the alleged irregularity (pp3-4), r4.05(b) does not apply to the commencement of proceedings for relief under the Act; rather, those proceedings should be instituted by Writ, under r4.04. Ms Hussin referred to Williams looseleaf 'Civil Procedure, Victoria', at pp2391-2392; and to r4.07(a) (p6) which contemplates circumstances in which proceedings properly commenced by originating motion may be continued as if commenced by Writ. 15. Second, the plaintiff had offered to consent to the default judgment being set aside on the basis that her costs thrown away as a result were paid. That offer had been rejected. CONCLUSIONS 16. The issue joined by the parties raises an interesting question as to the appropriate way to commence proceedings for relief under the Act. 17. Section 4 of the Act provides, as far as relevant:- "4. Jurisdiction to make orders and declarations and grant other relief under this part is vested in - (a) the Supreme Court; ..." 18. In the circumstances of this case, jurisdiction to hear and determine these proceedings is vested solely in this Court. 19. The Act is understandably silent as to how proceedings for relief under the Act are to be commenced. That is usually the case. Since jurisdiction is vested in this Court to "make orders and declarations and grant other relief" it follows that the procedure to be followed to obtain that relief is a matter for this Court; that is the whole purpose of the Supreme Court Rules. 20. The relevant Rules provide as follows:- "4.01 Except where otherwise provided by or under an Act or this Chapter, a proceeding shall be commenced by writ or by originating motion." ... 4.04 EXCEPT AS PROVIDED BY RULES 4.05 AND 4.06, a proceeding shall be commenced by writ. 4.05 A PROCEEDING SHALL BE COMMENCED BY ORIGINATING MOTION - (a) where there is no defendant to the proceeding; (b) WHERE BY OR UNDER AN ACT AN APPLICATION IS AUTHORIZED TO BE MADE TO THE COURT; or (c) where required by this Chapter. 4.06 A proceeding MAY be commenced by originating motion where - (a) it is UNLIKELY that there will be a SUBSTANTIAL DISPUTE OF FACT; and (b) FOR THAT REASON IT IS APPROPRIATE THAT THERE BE NO PLEADINGS OR DISCOVERY. 4.07 Where a proceeding in which there is a defendant IS COMMENCED BY ORIGINATING MOTION but ought by or under an Act or this Chapter to have been commenced by writ, or might in the opinion of the Court more conveniently continue as if commenced by writ - (a) THE COURT MAY ORDER THAT THE PROCEEDING CONTINUE AS IF IT HAD BEEN COMMENCED BY WRIT and may, in particular, order that any affidavit already filed in the proceeding shall stand as pleadings, with or without liberty to a party to

add to those pleadings or to apply for particulars of the pleadings or that pleadings be served between the parties, and that the parties have discovery of each other; and ... " (emphasis mine) 21. Ms Hussin submitted that r4.05(b) did not apply to proceedings for relief under the Act, for three reasons. First, the commencement of proceedings by way of originating motion was restricted to cases where it was "unlikely" there would be disputed facts and so pleadings would not be necessary. I note that that proposition treats Rule 4.06 as a gloss on r4.05. To support this proposition Ms Hussin relied on Williams 'Civil Procedure, Victoria', pp2391-2392. She submitted that the examples there given of applications "authorized to be made to the Court" under r.4.05(b) - applications under s61 of the County Court Act 1958 (Vic) to transfer a matter from the County Court to the Supreme Court, and applications under the Trustee Act 1958 (Vic) for various orders - show that the appropriate cases are those where it is unlikely there will be disputed facts. In contrast, application for relief under the Act most probably would involve disputed facts, and pleadings would be necessary. 22. Second, Ms Hussin submitted that s4 of the Act does not "authorize" anyone to make an application to the Supreme Court, and such authorization is required before r4.05(b) can be invoked. Section 4 merely gives the Court jurisdiction "to make orders and declarations and grant other relief." 23. Third, she submitted that r4.07(a) (see p6) supports the plaintiff's view that proceedings for relief under the Act are properly commenced by way of Writ. 24. I reject the plaintiff's submissions for the following reasons. 25. The means by which proceedings under the Act should be commenced, are determined by reference to the Act and the Rules. Rule 4.05(b) states that "where by or under an Act an application is authorized to be made to the Court", the proceeding invoking the Court's jurisdiction "shall be" commenced by originating motion. That is to say, if an application is authorized under the Act, it must be commenced (unless otherwise specified) by an originating motion, and r4.06 is irrelevant. Was the application of 17 June 1994 "authorized" under the Act? Clearly, it was; s4 of the Act (see p5) by necessary implication authorizes an application to this Court to invoke its statutory jurisdiction to grant relief. It follows that the proceedings instituted on 17 June 1994 were required to be commenced by originating motion. 26. The examples in Williams (see p7) of proceedings required to be commenced by originating motion under r4.05(b) are not confined to cases where facts are not disputed and pleadings are unnecessary. Those factors are irrelevant, where an application is authorized under an Act. Rule 4.05 sets out when commencement by originating motion is mandatory. Rule 4.06 (dealing with commencement of proceedings where disputes of facts are unlikely) is directed to proceedings other than those specified in (a), (b) and (c) of r4.05. That is to say, r4.06 is concerned with proceedings other than those within r4.05; where the norm is commencement by Writ under r4.04, r4.06 nevertheless allows commencement by originating motion as an option where disputes of facts are unlikely. 27. Ms Hussin's second submission (p7) is based on the false premise that there must be found within the Act an express authorization to make an application to the Court. Rule 4.05(b) covers the situation where the application to the Court is "authorized" under the Act by necessary intendment, as in s4. To read it in any other way would lead to the absurdity that the Act gives the Court jurisdiction to grant relief, but does not authorize the invocation of that jurisdiction. 28. I respectfully adopt the observation of Angel J in Tchia v Rogerson (1992) NTJ 1666 at pp1678-1679:- "I remind myself that procedure is not an end in itself, but a means to an end, which is the attainment of justice and that ... the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress ..." Ms Hussin's second submission must be rejected. 29. I reject Ms Hussin's third submission (p8) because r4.07(a) simply does not support the proposition that proceedings under the Act should be commenced by Writ. 30. It is clear from what I have said that I consider that proceedings instituted in this Court for the relief mentioned in s4 of the Act must be commenced by originating motion. The institution of these proceedings by Writ was a procedural irregularity, which has resulted in an irregular entry of a default judgment. Accordingly, that judgment must be set aside, ex debito justitiae. 31. I note in passing that the plaintiff could have utilized r1.11 to have cleared up any doubt as to the appropriate originating process. 32. Since the entry of judgment was irregular, and must therefore be set aside, it is unnecessary to determine whether the defendant has an arguable defence; however, he clearly has. There is nothing in the defendant's point (p4) that the judgment was "snapped on"; see Bee v Bush and anor (supra) at p4. 33. I turn to the question of costs. RULING ON COSTS 34. Since the entry of the default judgment was irregular, I reject Ms Hussin's submission (p4) that the rule as to costs where a default judgment regularly entered is set aside, is applicable in this case. 35. Although Ms Terrill resisted the plaintiff's application for costs, she did not seek the costs of having the judgment set aside. 36. In the circumstances, in terms of r63.02(2), I order that there be "no order as to costs".