Booth v Ward

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

No. 5504 of 2004

VIVIENNE BOOTH	Plaintiff
v
THOMAS LESLIE WARD & ORS	Defendants

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JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 July 2007
DATE OF JUDGMENT:	27 September 2007
CASE MAY BE CITED AS:	Booth v Ward & Ors
MEDIUM NEUTRAL CITATION:	[2007] VSC 364

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PRACTICE AND PROCEDURE - Domestic relationship — Application for adjustment of property interests – Application out of time – Whether leave to apply out of time must be sought and granted before substantive application for an adjustment order is commenced – Whether substantive application a nullity – Defendant originally consenting to orders that application for leave be heard and determined together with the trial of the substantive application – Whether orders should be varied - Discretionary considerations – Harris v Harris (1997) 22 Fam LR 263 not followed - Property Law Act 1958 Pt IX ss 279, 282, 284, 285, 287.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Evans	Webb Korfiatis Solicitors
For the Defendants	Mr J Santamaria QC with Mr G.L. Meehan	Kenna Teasdale Lawyers

HIS HONOUR:

This appeal by the first defendant from an order made by the Listing Master turns substantially on a question of interpretation of Part IX of the Property Law Act1958 (“the Act”), which sets out a regime for the adjustment of property interests as between unmarried “domestic partners” (as defined).

Under Part IX, and, in particular, under s 279 of the Act, a person who is or has been in a “domestic relationship” (as defined) with another person may apply to a court for an order for the adjustment of interests with respect to their property (hereafter referred to as an “adjustment order”). The court may make an adjustment order “that seems just and equitable to it” having regard to certain stated factors: s 285. However, s 282(1) provides in effect that if the domestic relationship has ended, an application for an adjustment order must be made within a period of two years after the ending of the relationship. Sub-section 282(2) provides that a court may grant leave to a domestic partner to apply for an adjustment order at any time after the end of that period if the court is satisfied that greater hardship would be caused to the partner applying if that leave were not granted than would be caused to the other partner if that leave were granted.[1]
[1]These provisions are set out verbatim later in these reasons.

The question of interpretation is whether, if an application for an adjustment order is not made within the two year period, it is essential that leave be sought and granted under s 282(2) before any application for an adjustment order is commenced. Or, on the other hand, may a court do what the Chief Justice (sitting in the Practice Court) actually did (by consent) some time ago in the present case, namely order, in effect, that an application for an adjustment order which was commenced outside the two year period be permitted to proceed through its interlocutory stages and towards hearing on the basis that an application for leave under s 282(2) would be heard and determined at a later stage together with the trial of the substantive application?

The plaintiff is content with the arrangements presently in place under the Chief Justice’s orders, but the first defendant seeks to overturn them. An objection has been raised by the plaintiff to the effect that, in any event, a judge of the Trial Division cannot make an order that would undo the Chief Justice’s orders, and that the only avenue of challenge available to the first defendant was an appeal from those orders to the Court of Appeal. In view of my opinion on the underlying point, I will not need to decide that particular question. On the other hand, the very fact that the Chief Justice’s orders were made, the fact that they were made by consent and the fact that the proceeding has been on foot for 3 years before the present challenge was raised may all have significance in relation to the proper exercise of the Court’s (discretionary) power which is now sought to be invoked by the first defendant.

In my opinion, the first defendant has not shown with sufficient clarity that it is essential that leave be sought and granted under s 282(2) before any application for an adjustment order can be commenced or continued. In fact (though I may not need to go so far) I am of the definite view that the same is not essential. In these circumstances I am not persuaded that it would be appropriate, on this interlocutory application, to interfere with the arrangements currently in place. These conclusions will require that the appeal from the Listing Master be dismissed. My reasons follow.

Procedural history

It is desirable at this stage to summarise the history of this proceeding.

On 16 April 2004 the plaintiff, Vivienne Booth, filed a writ in this Court. The writ was accompanied by a statement of claim. The first defendant was Thomas Ward and the other defendants were certain companies associated with him. The statement of claim alleged, among other things, that between about August 1996 and about November 2001 the plaintiff resided with Thomas Ward in a domestic relationship within Part IX of the Act. Details of the alleged relationship were pleaded, together with details of various alleged property interests of the parties and various alleged agreements and understandings between them. In the prayer for relief, the plaintiff claimed an order pursuant to Part IX of the Act adjusting the interests of the parties in their assets and resources. Further or in the alternative, the plaintiff sought declarations of trust and certain other equitable relief together with damages for breach of agreement.

On the same day, the plaintiff filed a summons in this proceeding seeking an order that the plaintiff have leave pursuant to s 282 of the Act to apply for an adjustment order out of time. The summons was supported by a detailed affidavit of the plaintiff, which, among other things, set out reasons for the delay of 5 - 6 months (after the expiry of the 2 year period) in commencing the proceeding. The summons also sought an order that the application for leave “be heard and determined so far as practicable together with the final hearing of the proceedings for substantive relief instituted by the plaintiff’s statement of claim … with the intent that if leave to apply pursuant to s 282 be granted, the proceedings for the substantive relief sought be validated with effect from the date of filing of the said proceedings.” In addition, the summons sought an order, accordingly, that “interlocutory steps including discovery of documents and interrogatories may be taken in relation to all relief sought by the parties.”

The papers were duly served and on 30 April 2004 an appearance was entered by solicitors acting for the defendants. The summons of 16 April 2004 came on for hearing before the Chief Justice sitting in the Practice Court on 7 May 2004. Both sides were represented by counsel.

It is common ground that the orders made by the Chief Justice on 7 May 2004 were made by consent, although the authenticated order does not reveal this. The orders made were in the following terms:

1. The Plaintiff’s summons in this proceeding filed 16 April 2004 be treated as an originating motion seeking relief pursuant to section 282 of the Property Law Act1958 (“the motion”).

2. The necessity for issuing a summons on the motion be dispensed with.

3. The Plaintiff’s application for leave be heard and determined so far as practicable together with the final hearing of the proceedings for substantive relief instituted by the Plaintiff’s statement of claim filed 16 April 2004 with the intent that if leave to apply pursuant to section 282 of the Property Law Act1958 be granted, the proceedings for the substantive relief sought be validated with effect from the date of filing of the said proceedings.

4. The writ filed 16 April 2004 be deemed to be the institution of the Plaintiff’s claim but to date as from the date of this order.

5. The Defendants serve and file a defence on or before 7 June 2004.

6. There is liberty to apply reserved to the parties.

7. The costs of the application are costs in the proceeding.

Since the making of the Chief Justice’s orders, numerous interlocutory steps have been taken but, as it seems, without any suggestion, until 12 April 2007, that the regime in place under the orders was inappropriate. Among other things, a defence was filed; there were several directions hearings; an affidavit of documents of the first defendant was filed; there was a court-ordered, unsuccessful mediation; an order was made (on 8 March 2006) provisionally setting the matter down for trial on 19 September 2006 and giving standard trial directions; there was a callover; on 12 September 2006 the trial date was vacated and further discovery by the first defendant was ordered; new solicitors were engaged by the defendants in November 2006; they took exception to the then form of the statement of claim but not on the grounds currently in issue; they filed and served an extensive request for further and better particulars of the statement of claim; thereafter leave was given to the plaintiff to file an amended statement of claim; and an amended statement of claim[2] dated 16 February 2007 was filed on that day[3].
[2]The amendments made to the statement of claim did not alter its basic form as already described and are not significant for present purposes.
[3]An apparently identical version of the amended statement of claim was re-filed on 19 March 2007, endorsed with a statement that it was filed pursuant to leave granted by a Master on 16 March 2007. I assume that the original filing of the amended statement of claim must have occurred outside the time limited by the initial grant of leave.

The first defendant’s summons

On 12 April 2007 the first defendant issued a summons seeking orders as follows:

1.Pursuant to Rule 23.01, alternatively Rule 23.03, there be judgment for the First Defendant on the Plaintiff’s claim under Part IX of the Property Law Act 1958 contained in the Amended Statement of Claim filed 16 February 2007.
2.Alternatively, the Plaintiff’s claim under Part IX of the Property Law Act 1958 be stayed pursuant to Rule 23.01 until the further hearing and determination of the Plaintiff’s Summons filed 16 April 2004, which by order of the Honourable Chief Justice Warren made on 7 May 2004 is to be treated as an Originating Motion seeking relief pursuant to section 282 of the Property Law Act 1958.
3.Alternatively to paragraph 2 hereof, the orders made by the Honourable Chief Justice Warren on 7 May 2004 be varied by discharging paragraph 3 of the said orders.
4.Pursuant to Rule 77.04, this application be referred to a Judge.
5.The Plaintiff pay the First Defendant’s costs of this application.
6.Such further or other orders as the Court deems appropriate.

The summons was supported by an affidavit of the first defendant’s solicitor dated 12 April 2007 referring to the judgment of Gillard J in 1997 in Harris v Harris[4] which, it was said, showed that the present proceeding was a nullity. The affidavit asserted:

“The defendant will be severely prejudiced by reason of the operation of the 7 May 2004 orders, which have left the Part IX claim outside the jurisdiction of this Honourable Court and as a nullity.”

[4](1997) 22 Fam LR 263.

A further affidavit of the solicitor dated 10 May 2007 indicates that, prior to the hearing before the Chief Justice on 7 May 2004, both sides had become conscious of the judgment of Gillard J in Harris v Harris but had apparently determined that the judgment required, or made desirable, no more than that there be orders of the kind ultimately made by the Chief Justice. As I have said, those orders were made by consent, both sides having been represented by counsel. The affidavit also indicates that no argument was put to the Chief Justice by either counsel; that the proposed orders were simply handed up to the Chief Justice who made the orders as sought; and that, otherwise, no agreement had been made between the parties.

No separate proceeding number was or has since been allocated by the Court in respect of the summons which, pursuant to paragraph 1 of the Chief Justice’s orders, is to be treated as an originating motion seeking relief under s 282 of the Act.

The Listing Master’s decision

On 16 May 2007 the first defendant’s summons was heard by the Listing Master. In a reserved judgment delivered on 28 June 2007, the Listing Master held that it was inappropriate for a Master to vary an order made by the Chief Justice where the Chief Justice had determined the procedure for dealing with the application; that unless and until the Chief Justice’s orders in the present case were varied, the applications in paragraphs 1 and 2 of the first defendant’s summons could not be granted; and that it was appropriate to dismiss the summons rather than refer it to a judge. The Listing Master dismissed the summons accordingly and reserved costs.

The appeal

The first defendant has appealed pursuant to rule 77.05 of the Supreme Court (General Civil Procedure) Rules 2005 to the judge sitting in the Practice Court against the Listing Master’s order. The appeal is by way of re-hearing de novo of the application made to the Listing Master by the first defendant’s summons of 12 April 2007.

There is no need for me to consider the correctness of the Listing Master’s view that it would be inappropriate for a Master to vary an order of the kind made by the Chief Justice. On the other hand, the plaintiff maintained before me (as she had done before the Listing Master) that it is not open even to a Judge (sitting at first instance) to vary an order of the kind made by the Chief Justice where the variation is sought on the ground that the order involved an error of law, as distinct from a ground that the order had become inappropriate or unworkable because of subsequent events or the very passing of time. Indeed a considerable part of the argument before me on both sides related to the question whether or not the order of the Chief Justice was relevantly unchallengeable otherwise than by way of appeal to the Court of Appeal.

As indicated above, I consider it unnecessary for me to form a concluded view on that point, because I consider that the Chief Justice’s orders should not be disturbed in any event.

The relevant provisions

Part IX was inserted in the Act in 1987. It has undergone various amendments since then. It remains a relatively concise set of provisions. I have already referred to its general thrust. Division 1 deals with definitions and other preliminary matters. Division 2 relates to applications, criteria and the making of orders for the adjustment of property interests. Division 3 contains general provisions mainly relating to ancillary powers of courts exercising powers under Division 2. Division 4 concerns jurisdiction. Division 5 deals with enforcement and regulations. In considering the particular provisions in question it is helpful to read them in the context of their immediately surrounding provisions and of the provisions of Part IX as a whole. But, for the sake of brevity, I will set out only the provisions which are directly relevant:

“279. Application for orders under this Division
(1)A domestic partner may apply to a court for an order for the adjustment of interests with respect to the property of one or both of the domestic partners.
(2)An application may be made whether or not any other application for any remedy or relief has been or may be made under this Act or any other Act or any other law.

282. Time limit for making applications
(1)If domestic partners have ended their domestic relationship, an application to a court for an order under this Division must be made within 2 years after the day on which the relationship ended.
(2)A court may grant leave to a domestic partner to apply for an order at any time after the end of the period referred to in sub-section (1) if the court is satisfied that greater hardship would be caused to the partner applying if that leave were not granted than would be caused to the other partner if that leave were granted.

284. Duty of court to end financial relationships
So far as is practicable a court must make orders that will end the financial relationships between the domestic partners and avoid further proceedings between them.

285. Order for adjustment
(1)A court may make an order adjusting the interests of the domestic partners in the property of one or both of them that seems just and equitable to it having regard to-
(a)the financial and non-financial contributions made directly or indirectly by or on behalf of the domestic partners to the acquisition, conservation or improvement of any of the property or to the financial resources of one or both of the partners; and
(b)the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the domestic partners to the welfare of the other domestic partner or to the welfare of the family constituted by the partners and one or more of the following-
(i) a child of the partners;
(ii)a child accepted by one or both of the partners into their household, whether or not the child is a child of either of the partners; and

(c)any written agreement entered into by the domestic partners.

(2)A court may make the order whether or not it has declared the title or rights of a domestic partner in respect of the property.

297. Courts having jurisdiction under this Part
A person may apply to-
(a)the Supreme Court; or
(b)the County Court; or
(c)the Magistrates Court-

for an order or relief under this Part.”

The first defendant’s argument

Mr Santamaria QC, who appeared with Mr Meehan for the defendants, submitted that the economy provided for in the consent orders of 7 May 2004 is unworkable. He said that the application for leave under s 282(2) must be determined before any proceeding in respect of the statutory relief can be commenced.

In support, Mr Santamaria submitted that the discretion vested in the Court to permit an extension of time involves a discrete test, based on comparative hardship, which is not relevant to the trial of an application for substantive relief.

Moreover, Mr Santamaria submitted, in Harris v Harris[5] Gillard J held that a proceeding such as the present (to the extent that it sought statutory relief), commenced outside the two year period without first obtaining leave, was a nullity. And, according to Mr Santamaria, the application for leave must be made by means of a separate proceeding commenced by originating motion.
[5]Supra.

Mr Santamaria submitted that the present orders presume the existence of a valid application for statutory relief and then adjourn the question of leave to commence it until trial. However, Mr Santamaria said, the Court has no jurisdiction at present to hear the application for statutory relief or to make interlocutory orders for the future conduct of the application. In fact, he said, since leave has not yet been given to the plaintiff, the first defendant would be entitled to summary judgment on the statutory claim. Mr Santamaria submitted that the consent of the parties to the making of the 7 May 2004 orders could not confer a jurisdiction on the Court, which depends upon a grant of leave.

Mr Santamaria also put the matter in a somewhat different way, which seemed to involve a departure from the proposition that the present orders presume the existence of a valid application for an adjustment order. Mr Santamaria said that the Chief Justice’s order 3 expressly makes the validation of the proceedings for substantive relief dependent upon a subsequent grant of leave, in which event the expressed intent of the order is that the proceedings “be validated with effect from the date of filing of the said proceedings”. By making these orders, Mr Santamaria said, the Chief Justice has not held that the proceeding in respect of the Part IX claim is validly constituted. Such an implication, he said, would contradict the express terms of order 3, which leaves the application for leave under s 282(2) and the validity of the proceedings for substantive relief expressly undecided.

Mr Santamaria said that, properly understood, the Chief Justice’s orders were interlocutory, not final. Those orders, he said, have created a conundrum. According to Mr Santamaria, the proper sequence under the Act is, first, that there be an application for leave heard and determined and, secondly, if leave is granted, that the proceeding be commenced; but the orders have conflated the first step with the second.

Mr Santamaria submits that one solution is to strike out or stay the claim made under Part IX of the Act. Paragraphs 1 and 2 of the first defendant’s summons are directed to that solution. A “less drastic”, alternative solution is to vary the orders made so that the application for leave is determined in the order “mandated” by the legislation. Paragraph 3 of the summons (which calls for order 3 of the Chief Justice’s orders to be discharged) is directed to that solution.

Despite the abovementioned reference in the solicitor’s affidavit to the first defendant being “severely prejudiced” by the operation of the 7 May 2004 order, Mr Santamaria eschewed reliance on any change of circumstances involving specific inconvenience or increased risk of wasted time or costs, or the like. He did not say that anything which had occurred since the making of the orders had affected their workability or appropriateness. Rather, he relied essentially on what he submitted was the mandate of the statute. However, he said that the plaintiff, likewise, was unable to point to any particular reason of convenience or the like in favour of maintaining the current regime.

Mr Santamaria submitted that even if his point is not “jurisdictional”, it is “overwhelmingly desirable” that steps should be taken in the sequence “mandated” in the legislation. Indeed he submitted that the Act, not expressly but by implication, rendered legally impermissible the course which the proceeding is presently taking. He placed emphasis on the word “must” in s 282(1). He said that a strict interpretation was called for because the property interests of potential defendants were at stake. A distinctive hardship test was erected by s 282(2), he said. Although the parties will be the same and the witnesses will probably be the same, the tests are different – comparative hardship (s 282(2)) as compared with what seems “just and equitable” (s 295(1)).

Mr Santamaria argued that the statements of Gillard J in Harris v Harris[6], to the effect that a proceeding under s 279 of the Act commenced without prior leave was a nullity, represented more than mere passing observations and formed part of his Honour’s reasons for decision.
[6]Supra.

Mr Santamaria did not refer me to any other authority on this point. He mentioned a possible analogy with cases under s 23A of the Limitation of Actions Act 1958 but said that his researches had produced nothing useful in that regard.

Mr Santamaria accepted that, as a result of the Chief Justice’s orders 1 and 2, an application by the plaintiff for leave pursuant to s 282(2) of the Act was validly on foot. He also accepted that the Court had full power to make procedural orders in the proceeding comprised of the application for leave. He accepted that one significant factor in determining the question of comparative hardship and in exercising the residual discretion under s 282(2) was the plaintiff’s prospects of success on the proposed substantive application. He acknowledged that this might make relevant a broad range of documents for the purposes of any order for discovery in the leave proceeding. Indeed he accepted that such an order might well be co-terminous with any order that might be made in the substantive proceeding. He accepted, too, that there might be significant overlap in relation to witness statements and other interlocutory processes. However he maintained that at all times the Court would be required to measure its orders against the scope and dimensions of the leave application alone, not the impugned substantive application. He submitted that the Court could not, in the leave proceeding, make interlocutory orders on the footing that the leave application and the substantive trial would be heard together (at the same time before the same judge). He said that the defendant was entitled, by the statute, to a separate determination of the leave application before being exposed to the prospect of a trial. He said that the proceedings were still at a relatively early stage and that it was appropriate to put the case back “on the rails” now.

The plaintiff’s response to the first defendant’s argument

Mr Evans, for the plaintiff, began by submitting that the only appropriate method for dealing with the first defendant’s objection to the Chief Justice’s orders was by way of appeal against them to the Court of Appeal. This was said to be so because the objection was based on alleged error of law or want of jurisdiction. I gather that Mr Evans relied on the following statement in Williams, Civil Procedure Victoria at [36.07.0] and the cases there referred to:

“A judgment or order to which objection is made on the ground that it was given or made in error can only be varied or set aside on appeal: [cases cited].”

Next Mr Evans submitted that whether or not the substantive proceeding, insofar as it seeks relief under the Act, is a nullity at present, the Court has power at a later time (and, in particular, at the trial) to make an order “nunc pro tunc” granting leave to issue the claim, and thereby validating it. Nothing in s 282(2) suggests otherwise, he submitted.

Mr Evans acknowledged that, if the substantive proceeding were presently a nullity, the Court would not be able to make any, or any further, interlocutory or procedural orders in it, and could only make orders appropriate to the leave proceeding. However he submitted that this would not be an unsatisfactory situation; that orders of sufficient breadth could be made in the leave proceeding; and that it was neither necessary nor desirable to set aside any of the orders currently in place.

Mr Evans argued that the observations of Gillard J on which the first defendant relied were obiter dicta. Further or alternatively, he argued that his Honour had not disclosed his process of reasoning towards the conclusion that the issuing of the writ in Harris was without jurisdiction. In this regard, Mr Evans drew attention to the question whether the expiry of the 2 year period should be regarded as extinguishing the statutory right or merely limiting the remedy. In that regard, he made passing reference to the litigation which culminated in the decision of the High Court in Wardley Australia Limited v Western Australia[7], a case concerning the time limitation in s 82(2) of the Trade Practices Act 1976 (Cth).
[7](1992) 175 CLR 514.

Mr Evans submitted that the operation of s 282(2), which gives the Court power to grant leave to apply, is not consistent with the idea of the statutory extinction of a right, but rather is consistent with the concept of a limitation period which operates only defensively and can be extended. Therefore, Mr Evans submitted, a proceeding issued outside the 2 year period without leave is not a nullity. It is validly issued. The defendant might choose to plead the limitation period and, if so, the issue can be resolved in due course. The matter is not jurisdictional.

Indeed, Mr Evans submitted, it had not been necessary for the Chief Justice to make an order requiring that the plaintiff’s summons be treated as an originating motion. The issuing of the summons in the substantive proceeding had not been inappropriate. The explanation for the course taken by the parties may lie in an excess of caution in view of the procedural orders made by Gillard J in Harris v Harris.

Consideration: Power of a single judge to vary the orders of another single judge

As to the power of a judge of the Trial Division, sitting as such, to discharge or vary the orders of the Chief Justice, I very greatly doubt the correctness of Mr Evans’ submission on that point. It seems to me that the proposition in Williams, to the effect that orders to which objection is made on the ground of error can only be varied or set aside on appeal, relates only to orders that are final or effectively final, as distinct from procedural. The cases cited by the learned author are all cases relating to orders that were final or effectively final. By contrast, there is no suggestion by the learned author that the discharge or variation of procedural orders is limited by any such proposition: see [36.07.10] and the cases there cited. Indeed Williams states, in relation to orders generally (not just interlocutory or procedural orders) that “[t]he court has inherent jurisdiction to declare void and to set aside a judgment given in a proceeding so irregular as to amount to a nullity”, citing, among other cases, Cameron v Cole[8], which seems to bear out this statement. I note also the decisions of the Federal Court relied on by Mr Santamaria – especially Du Pont De Nemeurs v Commissioner of Patents[9], and Wilkshire v Commonwealth of Australia[10] - which indicate that courts have inherent[11] power to set aside procedural orders, including orders of that kind made by consent.[12] Further, it has been said that, even in relation to final orders, a court has an inherent jurisdiction to vary, modify or extend its own orders where the interests of justice so require: see Williams [36.07.5] and cases there cited. It might well be thought that, if Mr Santamaria’s underlying point, though emerging only recently, were clearly a good one, the interests of justice would require that the interlocutory procedural orders presently in place be discharged or modified accordingly.
[8](1941) 68 CLR 571 at 589.
[9](1987) 16 FCR 423, 424, 432-433, 435.
[10](1976) 9 ALR 325, 330. Mr Santamaria also referred to Torrac Nominees Pty Ltd v Karabay [2007] NSWCA 96 at [50].
[11]In addition to the express power conferred on the Federal Court by Order 35 rule 7(2)(c) of the Federal Court Rules.
[12]Werner v Bailey Aluminium Products Pty Ltd (1988) 80 ALR 134, 138.

However, while I incline strongly to the view that I would have the power to discharge or vary the orders of the Chief Justice of 7 May 2004 if I thought it appropriate to do so, I need not finally decide that question, because of my views on the underlying question and on the related discretionary considerations, to which I now turn.

Consideration: Should the plaintiff’s claim be dismissed or stayed or the Chief Justice’s orders varied?

The relief sought by paragraph 1 of the first defendant’s summons is that there be judgment for the first defendant under r 23.01 or r 23.03 on the substantive statutory claim. As will become more apparent, I am far from thinking that the first defendant’s argument on the interpretation point is so strong as to warrant the summary dismissal of the substantive proceeding in its present state. In any event, Mr Santamaria indicated that in truth his client was not seeking at present to preclude the plaintiff forever from bringing the substantive claim. So the relief sought by paragraph 1 of the summons cannot be granted.

Paragraph 2 of the summons purports to invoke the power of the Court under r 23.01 to stay a proceeding generally or any claim in a proceeding which (a) does not disclose a cause of action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the court. The kind of stay referred to in r 23.01 is a permanent stay. Once again, I do not regard his argument as having the necessary strength to warrant the summary grant of a permanent stay of the proceeding. In any event, paragraph 2 of the summons seeks only a stay until the application for leave has been determined. That is not the kind of stay for which r 23.01 provides at all. Therefore the first defendant’s application for a stay is not properly brought under r 23.01; and the relief sought in paragraph 2 of the summary must be refused accordingly.

The first defendant’s real application is for orders that will have the result that nothing further will be done to advance the substantive claim unless and until leave to apply out of time is sought and granted under s 282(2). The applicant is really seeking to set aside the orders and directions given (by consent) by the Chief Justice and to replace them with different orders and directions: compare paragraph 3 of the summons.

In these circumstances the present application should be viewed as an application for directions under Order 34 or under the inherent jurisdiction of the Court to control practice and procedure in matters before it. So, the first defendant does not need to overcome the very high threshold for summary judgment under r 23.01 or r 23.03, nor the equally high threshold for a permanent stay under r 23.01. However, the grant of the relief sought by the first defendant is discretionary.[13]
[13]Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364, 376 [37]; Phipps v Australian Leisure and Hospitality Group Ltd [2007] QCA 130, [12], [21], per Keane JA.

The burden of persuading the Court to exercise its discretion so as to alter the status quo falls on the first defendant. The burden should not be seen as an easy one to discharge given the matters to which I adverted in paragraph 4 above, namely the very existence of the Chief Justice’s orders, the fact that they were made by consent (and with advertence on both sides to Harris v Harris), and the passing of three years before the present challenge was raised (during which numerous interlocutory steps were taken). Further in Wardley Australia Limited v Western Australia[14], in the joint judgment of Mason CJ, Dawson, Gaudron and McHugh JJ, it was said to be undesirable that limitation questions of the kind under consideration in that case should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. On the other hand, I accept that their Honours’ observations are applicable mainly, if not exclusively, to cases which turn on contentious characterisation of matters of fact (as distinct from questions of law arising on undisputed facts)[15], and that the present case is not in that category. Moreover, the very point which the first defendant seeks to raise is that, for legal reasons, the current proceeding is, and any orders made at the final hearing would be, null and void and of no effect. Indeed, the first defendant might well have been criticised had he further deferred the raising of the point until the trial. Nevertheless, in view of the history of this matter, the first defendant can hardly expect the discretion to be exercised in his favour unless at least he comfortably satisfies the Court that his interpretation of the legislation is correct, not just that it might be, and that, as a result, the present proceeding is a nullity, not just that it might be. After all, the plaintiff is prepared to take the risk that, though I may incline to the view for which she contends, the trial judge may take a different view and may indeed give effect to it. The plaintiff also takes the risk that the trial judge may refuse, on its merits, her application for leave under s 282(2). In that regard, the trial judge might even consider that the plaintiff’s insistence that the hearing of the application be postponed to the trial should count against the grant of it.[16]
[14](1992) 175 CLR 514.
[15]Carey-Hazell v Getz Bros & Co [2001] FCA 703 at [40]; Simplot Australia Pty Ltd v PSL Industries [2001] VSC 419 at [15]-[17]; Mayne Nickless Limited-Multigroup Distribution Services Pty Limited [2001] FCA 162 at [26]-[28].
[16]Compare Streimer v Tamas (1981) 54 FLR 253 at 258-9, quoted by Nettle JA in Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2007] VSCA 121 at [120]. I do not mean to indicate any view that the trial judge should take that fact into account against the plaintiff in the particular circumstances of this case.

As it happens, I am not satisfied, comfortably or at all, that the first defendant’s interpretation of the legislation is correct, much less that this proceeding is a nullity.

It is appropriate to consider first what occurred in Harris v Harris.[17] In that case the plaintiff issued a writ claiming relief under Part IX of the Act and relief in accordance with the general law of trusts. The writ was issued more than two years after the cessation of the de facto relationship. The plaintiff then issued a summons seeking leave under s 282(2). The defendant subsequently issued a summons seeking an order that the plaintiff’s claim be struck out as being, among other things, vexatious, an abuse of the process of the Court and not disclosing a cause of action. Both summonses came on for hearing before Gillard J. Towards the beginning of his Honour's reasons for judgment, Gillard J said[18]:
[17](1997) 22 Fam LR 263.
[18]Ibid, 265.

“The plaintiff seeks to invoke a jurisdiction which is established by statute. By reason of s 282(1) the jurisdiction ceases at the expiration of two years after the day on which the de facto relationship ended. In my opinion the issue of the writ claiming relief under the Property Law Act 1958 was done without jurisdiction and in so far as it seeks relief pursuant to the Act it is null and void and of no effect. In so far as the writ seeks relief pursuant to the principles of the laws of trusts it is within jurisdiction.
In my opinion the plaintiff should have applied by originating motion and summons for leave to issue the proceeding pursuant to s 282(2) before she issued the writ claiming relief under the Act. However, as I indicated in the course of argument, I was prepared to make orders to facilitate the application which was before me. In particular, I am prepared to make an order that the summons seeking relief under s 282(2) be treated as an originating motion seeking that relief and dispense with the necessity of issuing a summons on that motion.”

Near the end of the judgment, his Honour said[19]:
“In so far as the writ seeks relief under Part IX of the Property Law Act 1958 the claim was instituted without jurisdiction and accordingly that part of the claim is null and void and of no effect.”

By his orders, his Honour, among other things, granted the plaintiff leave under s 282(2) of the Act to apply for an order against the defendant pursuant to Part IX; ordered that she institute her application by writ; and ordered that the writ already filed be deemed to be the institution of the plaintiff’s claim but to date from the date of his Honour’s orders.

[19]Ibid, 273.

The report of the case does not reveal whether the plaintiff had argued against his Honour’s view that insofar as the writ sought statutory relief the issuing of it was “done without jurisdiction” and the writ was “null and void and of no effect”. However it seems unlikely that the plaintiff in Harris did argue against the view adopted by Gillard J. At an early stage the plaintiff had issued, and brought on, a summons seeking leave under s 282(2) . During the course of argument Gillard J had indicated a preparedness to treat the summons as an originating motion seeking that leave. Neither the plaintiff nor the defendant was suggesting that the application under s 282(2) could or should be deferred and heard together with the substantive application. That issue simply did not arise. Putting the question of costs aside for a moment, the plaintiff had no particular reason, nor any apparent desire, to argue that the writ, when issued, was not a nullity. As to costs, the order of Gillard J that the writ be deemed to be the institution of the plaintiff’s claim but to date from the date of the order ensured that little or nothing by way of costs was thrown away. So it seems that the matter was probably not the subject of any contest or any argument before Gillard J. His Honour did not analyse the relevant provisions of the Act or of the Rules of Court nor did he refer to any relevant authorities or general legal principles. Of course, his Honour was not faced with a situation, like here, in which the defendant had previously consented to the hearing together of both applications. In those circumstances, the principle that a single judge of this Court should follow the prior decision of another single judge of the Court unless satisfied that the prior decision was clearly wrong does not apply with its normal force.

In any event, with the benefit of certain authorities not referred to in Harris, including some decided after Harris, I am not persuaded that I should follow Harris for present purposes.

Though I may be going further than strictly necessary, it may be helpful to the parties and to the Masters in connection with future interlocutory steps in this proceeding for me to indicate affirmatively, as I do, that, in my view, s 282 does not delineate the relevant jurisdiction of this Court, and that a writ issued outside the 2 year period without prior leave is not a nullity. I consider that the present proceeding is duly on foot and that the Court has full power to make further interlocutory procedural orders in it.

Generally speaking, the Supreme Court of Victoria is a superior court of record with unlimited jurisdiction in and in relation to Victoria[20]. That is important, because in the case of superior courts of general jurisdiction, as distinct from courts of limited jurisdiction, acts in excess of jurisdiction cannot be characterised as invalid until quashed or set aside on appeal, whereas that is not necessarily true of the latter[21].
[20]Constitution Act 1975 ss 75(1), 76, 85.
[21]Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364, [11].

Further, as was said in Berowra Holdings Pty Ltd v Gordon[22]:

“There also is a very real difficulty in characterising proceedings as ‘invalid’. The institution of an action or other proceeding is the exercise by the litigant of the freedom to invoke the jurisdiction of the judicial arm of government to determine a dispute. That step engages the procedural law appurtenant to the relevant court, which in modern times is found primarily in the Rules.
Professor Jolowicz describes procedural law as creating choices or a sequence of choices in the sense that each procedural step taken by a litigant requires the other party or the court to take some action, so affecting the path which the proceedings take towards ultimate disposition. This is the case even where a procedural rule is expressed in mandatory form; if the party to whom it is addressed chooses to disregard it, the normal outcome is that a choice accrues to the other party either to do nothing or to seek an appropriate order from the court.
In the adversarial system of justice, choice rests primarily with the parties and it is generally the case that the court's power of decision or order is exercised upon the application of a party. Generally there is in law no restriction upon a person's right to start an action and to carry it to the point at which a choice is cast upon the defendant to make some response in order to avoid judgment in default. Once the procedural law has been engaged, all parties to the litigation are subject to it.”

[22](2006) 225 CLR 364, [13]-[15]. Footnote omitted.

In Berowra, a worker commenced proceedings in the District Court of New South Wales against his employer claiming common law damages in respect of an injury suffered in the course of employment. He had given notice of the injury to the employer only about 1 month previously, whereas s 151C(1) of the Workers Compensation Act 1987 (NSW) provided that a person in the worker’s position was “not entitled to commence court proceedings for damages in respect of the injury concerned” against the employer until 6 months had elapsed after notice of the injury had been given to the employer. Initially, the employer did not take the point and in due course the matter was fixed for hearing. The worker was considering an offer of compromise which had been made by the employer under the rules of court when the employer sought for the first time to take the notice point and to withdraw its offer of compromise. The employer argued that the proceeding was in truth a nullity. Ultimately the High Court held unanimously that the proceeding was not a nullity and that the worker had been entitled to accept the offer of compromise, as he had done.

In arriving at that view the High Court had regard to the language and apparent policy of the statute and to the principle that it should not be thought that a legislature intends to cut down the jurisdiction of the courts “save to the extent that the legislation in question expressly states or necessarily implies”[23]. In their joint judgment, Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ expressed their conclusion respecting s 151C as follows[24]:

“Section 151C should not be read as if the entitlement of a plaintiff to commence court proceedings after the passage of six months from the giving to the employer of notice of the injury was a pre-condition to the jurisdiction conferred upon the court to determine claims for work injury damages. The considerations adverted to earlier in these reasons all point against the employer's construction of s 151C.
The better view is that the provision does not inevitably result in the invalidity of proceedings commenced in contravention of it, either for want of the court's jurisdiction or because the court has no jurisdiction except to accede to a defendant's application (whenever brought) to set aside the proceedings and to do so without regard to the procedural history and the relevant Rules of Court.
The construction advanced by counsel for the worker should be accepted. Section 151C does not extinguish rights or create new rights. Rather, it postpones the remedy for the common law right to initiate proceedings in a court of competent jurisdiction. The ‘right’ which s 151C does confer is conferred upon the defendant employer and must be raised in accordance with the procedural rules appurtenant to the particular court.
Proceedings commenced by a worker in contravention of s 151C engage the jurisdiction and procedural rules of the court in question. Such proceedings are vulnerable to an application by the defendant to strike out the initiating process or to move for summary dismissal, but they are not a ‘nullity’. Once a plaintiff has commenced proceedings, s 151C must be understood in connection with the procedural structure for the conduct of litigation in that court, not in isolation from it. This is not to subjugate the statute to the Rules, but to recognise that the subject-matter with which the statute deals is ‘rights’ in the context of actual or apprehended litigation, and to understand the function of the Rules of Court and procedural law in facilitating adjudication of disputed claims.
The upshot is that the effect of non-compliance with s 151C will depend in each case upon the actions of the defendant in the context of the relevant Rules of Court. Where the defendant requires an order by the court for the defendant to give effect to a point as to s 151C, in exercising its discretion the court will take into account numerous factors. Not all of these (as Lord Griffiths recognised in Ketteman v Hansel Properties) may be measured in economic terms.”

[23]Ibid, [31]. See also Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2007] VSCA 121, [32]-[33].

[24]Ibid [33]-[37]. Footnote omitted.

It seems to me that the observations in Berowra to which I have referred apply a fortiori to the present case. The centrally relevant provision in Berowra, s 151C of the NSW Act, was expressed in negative, prohibitory terms (“not entitled”) and was expressly and directly aimed against the commencing of court proceedings. There was no separate provision expressly conferring related jurisdiction on the courts. Nevertheless, the High Court found that s 151C did not go to jurisdiction.

By contrast, s 282(1) is expressed in positive language, not negative or prohibitory language (“an application…must be made within 2 years…”) I would not attribute overriding significance to the use of the word “must” in s 282(1). As the observations of Tadgell JA in Halwood Corporation Ltd v Roads Corporation[25] indicate, the word “must” is often used in an unorthodox way in Victorian legislation, and particular care needs to be exercised to discern whether the Victorian Parliament really intended to use the word in a truly mandatory sense. As his Honour noted, in Brygel v Stewart-Thornton[26], JD Phillips J had declined to treat “must” in s 56(2) of the Magistrates Court Act 1989 as imposing an imperative or mandatory obligation when the context indicated that mere non-performance of an obligation that it sought to impose was not intended by the Parliament to render an order for committal null and void. In the present case, the context contains similar indications. Among other things, s 282 itself provides, by subsection (2), that a court may grant leave to proceed despite non-compliance with s 282(1). In Wintle v Stevedoring Industry Finance Committee (No 4)[27], Ashley J observed that High Court authority gives some support for the conclusion that the presence of an extension provision is pertinent to deciding that a limitation provision is procedural only and does not extinguish a civil liability.
[25][1998] 2 VR 439, 445-446.
[26][1992] 2 VR 387 at 397-9. Compare Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269 [42]; Reid v Agco Australia Ltd [2000] VSC 363 [37] (Ashley J). See also Accident Compensation Commission v Murphy [1988] VR 444, 447-449.
[27][2003] 9 VR 235, [38]. His Honour referred in particular to McKain v RW Miller and Co (1991) 174 CLR 1, 28 per Mason CJ. Compare Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269, [45] (French J).

Further, there are provisions of the Act which expressly confer substantive jurisdiction on courts; and those provisions are contained in sections separate from s 282.[28] Thus section 279, which is not expressed to be subject to s 282(1), authorises a domestic partner to make an application to a court for an adjustment order. Section 297, which is contained in a separate Division headed “Jurisdiction” and which likewise is not expressed to be subject to s 282, authorises persons to apply to this Court, as well as to other courts[29], for “an order or relief” under Part IX.
[28]Compare Mayne Nickless Limited v Multigroup Distribution Services Pty Ltd [2001] FCA 1620, [43]-[48], esp [47]; Emanuele v Australian Securities Commission (1997) 188 CLR 114, 156.8 per Kirby J.
[29]Compare Berowra, supra, [12].

Part IX of the Act was closely modelled on the Property (Relationships) Act 1984 of New South Wales. The structure and the language of the respective provisions are very similar. For example, section 14 of the New South Wales Act corresponds closely with s 279 of our Act. Section 20 corresponds closely with our section 285. Section 18 of the New South Wales Act provides:

18 Time limit for making applications
(1)If a domestic relationship has ceased, an application to a court for an order under this Part can only be made within the period of 2 years after the date on which the relationship ceased, except as otherwise provided by this section.
(2)A court may, at any time after the expiration of the period referred to in subsection (1), grant leave to a party to a domestic relationship to apply to the court for an order under this Part (other than an order under section 27 (1) made where the court is satisfied as to the matters specified in section 27 (1) (b)) where the court is satisfied, having regard to such matters as it considers relevant, that greater hardship would be caused to the applicant if that leave were not granted than would be caused to the respondent if that leave were granted.
(3)Where, under subsection (2), a court grants a party to a domestic relationship leave to apply to the court for an order under this Part, the party may apply accordingly.

It will be noted that s 18 uses “can only” where the corresponding Victorian provision uses “must”. The expression “can only” may be equated with the expression “may only”, which has been regarded as a very strict one.[30] I think it connotes greater strictness than the word “must”, at least where the latter is used in Victorian legislation. In addition, it will be noted that the New South Wales Act contains a sub-section (3) which might be thought to reinforce the strictness of the expression “can only” in sub-section (1). Nevertheless, it is common practice in New South Wales for parties seeking property adjustment orders out of time to commence substantive proceedings without leave and for directions to be made that the application for leave be heard together with the substantive application. In Michaelopoulos v Pomering[31] Master McLaughlin who, from my research, appears to have had extensive experience in hearing cases under the relevant legislation of New South Wales, said:
[30]See Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269, [45] per French J; Emanuele v Australian Securities Commission (1997) 188 CLR 114 at 150 per Kirby J.
[31][2004] NSWSC 939, [44].

“It is not usual for an application for an extension of [the limitation period in s 18] to be dealt with separately and before a final hearing of the substantive claim for relief under the Act.”

In Selmore v Bull[32], a decision of the Court of Appeal of New South Wales relating to the relevant legislation, the following observation was made by Mason P (with whom Tobias JA and Brownie AJA agreed) concerning the proceedings below:
“Sensibly, the parties chose to litigate the leave and substantive issues concurrently.”

Apparently it did not occur to any of the learned members of the Court of Appeal of New South Wales that there might be some jurisdictional difficulty in doing what was done in that case, being the very thing for which the orders of Warren CJ in the present case provide. Nor, apparently, has it ever been held, or even suggested, in any of the reasonably numerous cases conducted under the New South Wales legislation since 1984 that there might be some jurisdictional difficulty in taking such a course.

[32][2005] NSWCA 365.

Presumably, judges and practitioners in New South Wales have always shared the view which was expressed by Bryson J about s 18 in one of the leading cases in this area, Beavan v Falshaw[33], as follows:

“The section appears to me to treat an application for leave to apply as a normal event, calling for the court to consider two stages, a finding relating to hardship and the exercise of a discretion, without any special jealousy for the observance of the time limit or particular concern for it. The language of the section is not such as to extinguish claims unless the court makes an exception; but section 18 regulates the presentation of claims in different ways according to the time when they are presented, imposing a requirement to obtain leave to apply in cases such as the present. …
…
I regard it as relevant to the exercise of that discretion to consider what explanation for delay is offered, but my primary concern ought, in my opinion, to be whether the case put forward is an appropriate case for the plaintiff to apply for an order. While I prefer litigants to proceed in a timely way, subs (2) ought not, in my opinion, to be viewed as an opportunity to impose order on litigants or to instil discipline in them.”

[33](1992) 15 Fam LR 686, 687. My emphasis. See also Selmore v Bull [2005] NSWCA 365 at [12]-[13] per Mason P.; Harris v Harris (1997) 22 Fam LR 263 at 273; compare McGibbon v Marriott [1999] VSC 381 (Warren J) [7]; Lockett v Duckett [2004] VSC 377 (Cummins J) [20]-[21].

With respect, I would agree with Bryson J that the language of s 18 of the New South Wales Act is “not such as to extinguish claims” but merely “regulates the presentation of claims”; and in my view it follows, a fortiori, that s 282 of our Act should be characterised in the same way. This reinforces my view that, whatever else s 282 may do, it does not deprive the courts of jurisdiction in a case like the present and does not render originating process, or a proceeding, a nullity in a case like the present.[34]
[34]See and compare State of Western Australia v Wardley Australia Limited (1991) 30 FCR 245 at 257-259; Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364, 394-395 [103] per Kirby J; Phipps v Australian Leisure and Hospitality Group Ltd [2007] QCA 130, [12]-[13], [21], [41], [81]-[91], and note the reference in [85] to Victorian authority, including Wilson v Nattrass (1995) 21 MVR 41. In that respect compare also Swannell v Farmer [1999] 2 VR 299.

Nor, in my view, would s 282 necessarily entitle a defendant to have a proceeding summarily struck out (in the exercise of the court’s jurisdiction) merely because the proceeding was commenced outside the two year period without prior leave. I would be of this view regardless of any specific discretionary matters, of the kind referred to in Berowra or of the kind existing in the present case, which might also tend against a strike out application.[35]
[35]See Phipps, supra, [21].

For several reasons, I think it is at least doubtful whether, on its face, in the context of Part IX as a whole, s 282 has the effect that substantive applications under s 279 which are out of time are not to be commenced unless and until leave to apply is granted.

First, the section simply does not say so.

Secondly, the unlikelihood of the first defendant’s construction is more apparent when one contemplates cases in which there is a dispute as to whether or not the domestic relationship had ended more than two years before the commencement of the proceedings. This may require the calling of extensive evidence which would also be relevant on a substantive application and which would go beyond relative hardship issues. In Giller v Procopets[36], in dealing with a number of interlocutory summonses in a proceeding arising partly under the Act, Kellam J noted an assertion by the defendant that the plaintiff had brought her writ under s 279 of the Act more than two years after the end of the relationship (and an assertion to the contrary by the plaintiff). His Honour said:

“This is not an issue appropriate to be resolved on this application. It is an issue which goes to the crux of the dispute between the parties, and should be decided after the evidence, including the oral evidence of the parties relevant to it, is heard and assessed.”

Even when the expiry of the two year period is not in doubt, the court will be required, in determining the hardship issue, to “make some assessment of the likely outcome of the proceeding pursuant to the Act”, as Gillard J himself said in Harris v Harris[37]. Indeed the overlap might well be very great, as was conceded by Mr Santamaria before me.

[36][2002] VSC 305, [22].

[37](1997) 22 Fam LR 263, 265.

Thirdly, s 279(2) provides that an application (under s 279(1)) may be made “whether or not any other application for any remedy or relief has been or may be made under this Act or any other Act or any other law”.[38] Read literally, this seems to mean that a substantive application can be made even though an application for leave “may be” (but has not yet) been made.
[38]My emphasis.

Fourthly, s 284 provides that so far as practicable a court must [sic] make orders that will end the financial relationships between the domestic partners and avoid further proceedings between them. It seems to me that this object is better served by accepting that an application for leave may be combined with a substantive application, subject, of course, to the court’s discretion to order, in an appropriate case, that the leave application be heard separately as a preliminary issue.

Fifthly, the court is expressly given extensive powers of adjournment, including the power to adjourn, virtually indefinitely, on the basis of an opinion that there is likely to be a significant change in the circumstances of one or both of the partners: s 286, 287. A (more limited) power to defer the operation of orders is also conferred: s 288.

Sixthly, an unusually broad power to vary or set aside orders is available: s 294.

Seventhly, a court may transfer or suspend proceedings in specified circumstances: ss 298, 299.

Eighthly, any provision in s 282 for the making of an application for leave is made only inferentially, not expressly or distinctly. This is hardly consistent with a Parliamentary intention to insist that there be a distinct application for leave prior to the commencement of any late substantive application.

Ninthly, and quite importantly in my view, s 282(2) provides that the court may grant leave “at any time” after the end of the two year period. There is no restriction at all on the period during which an application for leave to apply might be made or during which leave might be granted. This in itself tends to show that there is no policy of strictness in the statute.[39] Further, from a linguistic point of view, it could be argued that although the leave in question is leave “to apply”, a power to grant such leave “at any time” includes a power to grant it at a time after the (substantive) application has in fact been made.
[39]See also the observations of Bryson J about the policy of the time provisions in Beavan v Falshaw (1992) 15 Fam LR 686, 687 which are set out above and which, as indicated there, seem to have met with widespread approval.

In any event, in my view, even if, on the face of the relevant provisions, it did seem that leave to apply could not be granted in respect of an existing application, there is no sufficient reason to exclude from consideration “the power of the courts to antedate orders and judgments, which comprehends from its terms the making of orders nunc pro tunc”.[40] Such orders are not granted to alter the substantive rights of parties but only to overcome procedural irregularities and difficulties.[41] On the other hand, the power “is an inherent power of common law courts to remedy a situation by dating an order in a way which could give effect to the justice of the case. It is a broad power and thus capable of adaptation to suit the circumstances arising in any particular case”.[42]
[40]Hartley Poynton Ltd v Ali (2005) 11 VR 568, 607 [76] per Ormiston JA.
[41]Hartley Poynton Ltd v Ali (2005) 11 VR 568, 606 [73] per Ormiston JA.
[42]Hartley Poynton Ltd v Ali (2005) 11 VR 568, 609 [80] per Ormiston JA.

However, strange as it may seem, the courts have hesitated to treat statutory powers to extend limitation periods as suitable to be exercised “nunc pro tunc”.[43] I say that this seems strange, because general limitation periods are usually regarded as merely barring the plaintiff’s remedy rather than extinguishing the plaintiff’s rights.[44] Thus the defendant must specifically plead the running of the period by way of defence.[45] This applies not only to the provisions of general limitation Acts but also to statutes providing special periods of limitation in respect of rights created by those statutes themselves.[46]
[43]See Bestobell Overseas Ltd v Carden [1988] VR 891; Williams, Civil Procedure Victoria (I 2.04.10].
[44]See P Handford, Limitation of Actions, 2^nd edition, 2007, [5.10.2380] and cases there cited. See also State of Western Australia v Wardley Australia Limited (1991) 30 FCR 245, 259; Carey-Hazell v Getz Bros and Co (Aust) Pty Ltd [2001] FCA 703 (French J), [34]-[39]; PSL Industries Ltd v Simplot Australia Pty Ltd (2003) 7 VR 106, 114 [18]. Limitation periods and other statutory rights are usually regarded as waivable: Graham v Ingleby (1848) 154 ER 277 at 279; Clarkson v Commissioner of Corrective Services [2007] NSWCA 58 at [25]-[26] and cases there cited.
[45]Ibid.
[46]Ibid.

In Bestobell Overseas Ltd v Carden[47], the Full Court held that s 23A of the Limitation of Actions Act 1958, as it was prior to 1983, did not empower a court to make an order “nunc pro tunc” extending the period within which an action on a cause of action might be brought.[48] However, with respect, I agree with the observation of Ashley J in Reid v Agco Australia Ltd[49] that Bestobell “turned upon the very specific language of the then s 23A(2) of the Limitation of Actions Act 1958, which contemplated a grant of extension of time antecedent to commencement of ‘an action on the cause of action’”. I respectfully agree also with the further observations of Ashley J in Reid v Agco Australia Ltd[50] to the effect that the outcome of two other cases in the same line, namely Mole v Forests Commission of Victoria[51] and Hunter v State of Victoria[52], turned on the particular language of s 34(1) of the Limitation of Actions Act 1958, and to the effect that, likewise, the outcome of Beugelaar v City of Springvale[53] turned on the particular language of s 882 of the Local Government Act 1958. As Ashley J went on to point out[54], there is another line of cases in which courts have given leave to a party nunc pro tunc to take a step which ought to have been taken, but was not taken, before a proceeding was commenced; and in those cases leave was granted on the basis that the taking of the step was not a condition precedent to jurisdiction, but rather an irregularity. His Honour referred to Re Testro Bros Consolidated Ltd[55], Battiston v Maiella Construction Co Pty Ltd[56] and Emanuele v Australian Securities Commission[57]. I agree with his Honour that the observations of Kirby J in Emanuele are potentially of more general application than the approaches taken in the other cases (in the respective lines) to which his Honour had referred.[58] In the end, Ashley J granted leave to the plaintiff in that case, nunc pro tunc, to regularise a writ which had already been issued and which otherwise would not have met the requirements of a relevant limitation statute.
[47][1988] VR 891.
[48]The amended provisions of s 23A now provide expressly that the power of extension may be exercised notwithstanding that an action in respect of the personal injuries has been commenced.
[49][2000] VSC 363, [44].
[50][2000] VSC 363, [47].
[51][1957] VR 583.
[52][1960] VR 349, 351.
[53][1969] VR 3.
[54][2000] VSC 363 [48].
[55][1965] VR 18.
[56][1967] VR 349.
[57](1997) 188 CLR 114, 147-148.
[58]See also, more generally, Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2007] VSCA 121 esp at [32]-[34], [50]-[51], [118]-[124], [184]. Compare Roberts v Australia and New Zealand Banking Group Limited [2006] 1 Qd 482; Phipps v Australian Leisure and Hospitality Group Ltd [2007] QCA 130, [108], cf at [19].

In my view, the language of s 282 is distinguishable from that of all of the provisions considered in the Bestobell line of cases. In particular, s 282 does not refer to extending time, but rather to granting leave to apply. Nor does it have an intractable sense of futurity.

It follows that, to my mind, it would be legally open to the trial judge to consider the merits of exercising the power conferred by s 282(2) of the Act in favour of the plaintiff. It has not been suggested that the plaintiff’s claim for a grant of leave is a weak one. Therefore, in my view, there must be a real chance that, at the trial, the trial judge will grant leave to the plaintiff as sought. If this were done, it would “feed her title” to seek an adjustment order against the first defendant.[59] It would cure any infirmities in this proceeding. It would not seem to involve any interference with the substantive rights of the first defendant, nor any other injustice to the first defendant.[60]
[59]See and compare Phipps v Australian Leisure and Hospitality Group Ltd [2007] QCA 130, [19]-[22], [27] per Keane JA; cf at [43] per Muir J. Under r 36.03 of the Supreme Court (General Civil Procedure) Rules 2005 a pleading may be amended notwithstanding that the effect is to add or substitute a cause of action arising after the commencement of the proceeding.
[60]Cf Hartley Poynton Ltd v Ali (2005) 11 VR 568, 606 [73] per Ormiston JA.

I do not regard it as essential to the plaintiff’s success in the application before me that, in fact, it be legally possible to make orders nunc pro tunc under s 282(2), but the fact that there is at least a strong argument in favour of that view adds to the discretionary factors in her favour in this case, which emerge mainly from its procedural history and which point strongly against interfering with the arrangements in place under the Chief Justice’s orders.

I note that in Gerreyn v Kenny[61], Harper J, without detecting any jurisdictional difficulty, granted the plaintiff leave to apply under s 282 notwithstanding that the substantive proceeding was already on foot. His Honour ordered that that proceeding “be validated” with effect from the date of its commencement.
[61][2006] VSC 449, [16]. Compare Hao Can Luong v Phuoc Thuan Tran [2005] VSC 431, [3]-[7], [73].

Conclusion

The appeal will be dismissed. I will hear counsel as to costs. I note that the Listing Master reserved the costs of the application before her.

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