Eckert v Roberts - [2021] SASCA 73

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
ECKERT v ROBERTS
[2021] SASCA 73
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)
5 August 2021

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - OTHER MATTERS
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - ASSESSMENT OF DAMAGES
Appeal against a decision of a single judge of the Supreme Court.
On a trial concerning the question of ownership of certain farming land, the appellant was found to be in occupation of the respondent’s land as a trespasser. He appealed against the trial judge’s decision, but was unsuccessful.
Following delivery of the appeal judgment, both parties filed interlocutory applications. The appellant’s application sought orders designed to address the consequences arising from his continued occupation of the farming land between the date from which he was found by the trial judge to be a trespasser and the date on which he finally vacated the land. The respondent, by his application, effectively sought to enjoin the appellant from taking any further steps in the proceedings.
A single judge of the Supreme Court dealt with both interlocutory applications. The appellant contended that he was entitled to recover possible overpayments to the respondent and a just allowance in respect of work he conducted on the land during the period of the trespass. However, on the first day of hearing, the respondent abandoned his claim for an assessment of damages for the trespass to the land and for conversion of grapes grown on the land, as he believed the appellant to be insolvent.
Notwithstanding that abandonment, the appellant contended that rights still flowed to him under the original orders made by the trial judge, and that he could still pursue an order for an accounting between the parties as part of the Court’s ‘working out’ jurisdiction, pursuant to rule 243(1) of the Supreme Court Civil Rules 2006 (SA). The judge dismissed the appellant’s interlocutory application.
On 23 July 2020, the Full Court granted the appellant leave to appeal against that decision.
Held, per Bleby JA (Kelly P and Doyle JA agreeing), dismissing the appeal:
1. The respondent’s withdrawal of his claim for an assessment of damages meant that the appellant’s interlocutory application was not the subject of, or incidental to, any claim raising the jurisdiction of the Court. The Court consequently had no power to determine whether the appellant had an entitlement to be compensated in respect of the five payments made during the period of the trespass, or in respect of his labour and expenses.
Supreme Court Civil Rules 2006 (SA) r 107(3)-(4), 243(1), 251; Federal Court of Australia Act 1976 (Cth) s 43, referred to.
Roberts v Eckert [2016] SASC 197; Eckert v Roberts [2017] SASCFC 176; Roberts v Eckert [2020] SASC 27; Eckert v Roberts [2018] SASCFC 21; Eckert v Roberts [2020] SASCFC 71; Caboolture Park Shopping Centre Pty Ltd (In liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224; Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd (2008) 246 ALR 113; NH v Direction of Public Prosecutions (SA) (2016) 260 CLR 546; Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201, discussed.
Hancock v Rinehart [2015] NSWSC 646; Penrice v Williams (1883) 23 ChD 353; Abigroup v Abignano (1992) 39 FCR 74; CSIRO v Perry (No 2) (1988) 53 SASR 538 CSIRO v Perry (No 2) (1988) 53 SASR 538; Palmer v Ayres (2017) 259 CLR 478; New South Wales v Kable (2013) 252 CLR 118; Achurch v The Queen (2014) 253 CLR 141; D’Orta Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Burrell v The Queen (2008) 238 CLR 218; Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165; Keramianakis v Regional Publishers Pty Ltd (2009) 237 CLR 26; R v Forbes; Ex parte Bevan (1972) 127 CLR 1; PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1; R v Stakaj (2015) 123 SASR 523; Grassby v The Queen (1989) 168 CLR 1; PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1; Condon v Pompano Pty Ltd (2013) 252 CLR 38; Bailey v Marinoff (1971) 125 CLR 529; Riltang Pty Ltd v L Pty Ltd [2004] NSWCSC 977; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation [2000] SASC 345; Pertsinidis v Australian Central Credit Union Ltd (2001) 80 SASR 76, considered.

ECKERT v ROBERTS
[2021] SASCA 73

Court of Appeal – Civil: Kelly P, Doyle and Bleby JJA

KELLY P: I agree with Bleby JA.
DOYLE JA: For the reasons given by Bleby JA, I would dismiss the appeal.
BLEBY JA: This appeal raises issues concerning the nature and limits of the Court’s jurisdiction to superintend the enforcement or working out of an order. The application invoking this jurisdiction at first instance was expressed to have been made pursuant to rule 243(1) of the Supreme Court Civil Rules 2006 (SA) (‘6 SCR’).
On a trial concerning the question of ownership of certain farming land, the appellant was found to be in occupation of the respondent’s land as a trespasser. He appealed, unsuccessfully. The present contest is over whether, and if so the extent to which, the appellant is entitled to recover possible overpayments to the respondent and a just allowance in respect of work he conducted on the land during the period of the trespass. This is in circumstances where the respondent has now elected not to exercise his entitlement to recover damages from the appellant for the trespass to the land and for conversion of grapes grown on the land.
Background
This matter has a convoluted history, which is set out in the trial judgment,[1] the appeal judgment[2] and the decision the subject of this appeal.[3] A brief summary of that history follows.
[1]     Roberts v Eckert [2016] SASC 197 (Hinton J).
[2]     Eckert v Roberts [2017] SASCFC 176 (Kourakis CJ, Stanley and Nicholson JJ).
[3]     Roberts v Eckert [2020] SASC 27 (Nicholson J).
The respondent, Paul Roberts, has been a farmer since about 2003. He owned a 150-acre block called Nine Mile Farm. Before this, he worked in a hardware store in Strathalbyn where he met the appellant, Christopher Eckert. He had also come across Mr Eckert while doing some grape harvesting work for him. Mr Roberts later met Mr Eckert’s daughter, Rebecca Eckert. They commenced a relationship and married in February 2012.
Mr Eckert owned, and lived and worked on, a 185-hectare farm in Langhorne Creek called Eckert Farm. He had done so since 1979. Eckert Farm is comprised of a vineyard of approximately 29.3 hectares, with the balance of the land used for cropping and sheep.
By 2008, Mr Eckert had fallen significantly into arrears on a credit facility with Rabobank. The bank had held, as security, the titles comprising Eckert Farm. Rabobank instituted proceedings against Mr Eckert, and this Court made an order for possession on 20 August 2008.
The order required Mr Eckert to deliver up possession of the land within 28 days of service of the order. Despite this, Mr Eckert remained in occupation and continued to farm the land. He did not finally resolve all issues concerning his indebtedness to Rabobank until 2013.
Rabobank had difficulty finding a purchaser for Eckert Farm between 2008 and 2010. However, on 19 July 2010, Mr Roberts and Rabobank executed a contract for the sale and purchase of the farm. Settlement occurred on 31 August 2010. Around that time, Mr Roberts and Mr Eckert executed a Memorandum of Lease (‘the Lease’). Under the terms of the Lease, Mr Eckert was required to pay an annual rent of $63,000.00 plus GST, payable in monthly instalments.
Mr Eckert did not pay rent on a monthly basis, despite the terms of the Lease. Rather he would pay amounts twice yearly in time for Mr Roberts to meet his Mortgage obligations. During the life of the Lease, Mr Eckert continued to farm the land, tend the vineyard and sell the farm’s produce.
In mid-2014, Mr Roberts’s relationship with Rebecca Eckert broke down. Mr Roberts, through his solicitors, engaged in settlement negotiations with her. Initially, his relationship with Mr Eckert remained on good terms, but after some time, it also broke down.
In late 2014 and early 2015, Mr Roberts began issuing monthly invoices for rent due under the Lease. Mr Eckert did not pay the invoices on time. On 2 March 2015, Mr Roberts went to Eckert Farm with a Notice of Re-Entry and Re‑Taking of Possession. He served this notice on Mr Eckert personally. Mr Eckert remained on Eckert Farm. On 28 May 2015, Mr Roberts instituted the proceedings which went to trial before Hinton J.
Mr Eckert counterclaimed, seeking a declaration to the effect that Mr Roberts had, at all material times, held Eckert Farm on some form of trust, the terms of which required Mr Eckert to indemnify Mr Roberts for all costs in relation to the running of the farm. In addition, Mr Eckert was to have the opportunity to acquire Eckert Farm from Mr Roberts in the future. The fundamental matter therefore in issue between the parties at trial was the question of the equitable ownership of Eckert Farm.
Justice Hinton dismissed the counterclaim and found in favour of Mr Roberts on his claim for possession.[4] A secondary issue then arose as to whether Mr Eckert’s picking and sale of the grapes on the land constituted conversion. Justice Hinton concluded his reasons with the following passage:[5]
I have concluded that the lease was terminated at the conclusion of one month from the date of service of the Statement of Claim. Thereafter Mr Eckert has remained in possession of the farm as a trespasser. From that point in time upon picking the grapes they were reduced to a chattel. Mr Roberts had as from that point in time the immediate right to the possession of such chattel. Thus the picking and sale by Mr Eckert of the grapes after that point in time are actions contrary to the immediate right of possession of Mr Roberts. There can be no doubt that in picking and selling the grapes after one month from the date of service of the Statement of Claim that Mr Eckert has asserted title over the grapes and deprived Mr Roberts of the same. The picking and sale of any grapes after that point in time constitutes the conversion of the grapes. I so hold.
(Footnotes omitted)
[4] Roberts v Eckert [2016] SASC 197 at [277]-[278] (Hinton J).
[5] Roberts v Eckert [2016] SASC 197 at [294] (Hinton J).
The formal orders entered by Hinton J on 3 February 2017, reflecting the orders he pronounced orally at the time he delivered judgment on 20 December 2016, were as follows:
1.     The counterclaim of the defendant Christopher Mark Eckert be dismissed.
2.The plaintiff is entitled to possession from the defendant of the land comprised and described in Certificates of Title:
(a)     Register Book Volume 6065 Folio 205;
(b)     Register Book Volume 6065 Folio 207;
(c)     Register Book Volume 6065 Folio 208;
(d)     Register Book Volume 6065 Folio 209;
(e)     Register Book Volume 6065 Folio 210; and
(f)     Register Book Volume 6088 Folio 676
(“the Land”).
3.The parties have liberty to apply upon the question of the time within which the defendant must give possession of the Land to the plaintiff.
4.The lease of the Land by the plaintiff as lessor to the defendant as lessee pursuant to memorandum of lease commencing on 31 August 2010 (“the Lease”) was validly terminated by the plaintiff one month from the date of service upon the defendant of the statement of claim of the plaintiff filed on 5 August 2015 in this action.
5.The plaintiff is entitled to recover from the defendant damages for trespass to the Land as from the date of termination of the Lease being one month from the date of service upon the defendant of the statement of claim of the plaintiff filed on 5 August 2015 in this action.
6.The plaintiff is entitled to recover from the defendant damages for any conversion of the grapes grown on the vines on the Land after the date of termination of the Lease being one month from the date of service upon the defendant of the statement of claim of the plaintiff filed on 5 August 2015 in this action.
7.The assessment of the damages payable by the defendant to the plaintiff be conducted by a Master of this Court, and that the trial of all remaining questions in the action as to the assessment of the damages payable by the defendant to the plaintiff be remitted to a Master of this Court.
8.The defendant pay the costs of the plaintiff of the action and the counterclaim to be adjudicated as between party and party or agreed.
By the time these formal orders were entered, the appellant had filed a Notice of Appeal against Hinton J’s decision. As a result, his Honour made further orders relating to the prosecution of the appeal, which noted the following undertakings of the appellant:
9. The appellant will prosecute the appeal herein expeditiously.
10.The appellant will pay the respondent the sum of $40,000 by 31 March 2017 and the further sum of $40,000 by 30 September 2017 (should the appeal herein not heard and determined by 1 September 2017) such payments being characterised by the appellant as being made pursuant to and in respect of the Agreement alleged by the appellant as set out in the Fourth Defence and Counterclaim in the proceedings, and without prejudice to the right of the respondent to challenge the characterisation of such payments.
11.The appellant will pay into an interest bearing bank account with the National Australia Bank at Strathalbyn to be opened in the names of the solicitors for appellant and respondent as the signatories thereof (“the joint bank account”) the whole of the proceeds of sale of any grapes harvested from the vines on the Land referred to in the orders made herein on 2 February 2017 (“the Land”) after the date of these orders, and within 7 days of the entering of any contract for the sale of such grapes and the receipt of payment of the proceeds of the sale of such grapes provide to the respondent full particulars thereof and make disclosure to the respondent all documents evidencing such sales or receipts.
12.The appellant shall be at liberty to draw down on the funds in the join bank account for the purpose of making the following payments:-
12.1 the payment of the further sum of $40,000 payable by 30 September 2017 referred to in paragraph 2 hereof:
12.2 payments in respect of the reasonable costs, incurred on or after the date of this Order, of production of the grapes referred to in paragraph 3 hereof;
12.3 payments in respect of the reasonable costs, incurred on or after the date of this Order, of viticulture on the Land and of maintaining the health of the vines on the Land.
13.In relation to the drawdowns on the join bank account referred to in paragraph 4 hereof the following procedure is to be followed:-
13.1 the appellant is to give the respondent seven days’ notice in writing of his intention to draw down on the joint bank account which notice shall specify the amount of the proposed payment, specify within reasonable particularity the purpose for which such payment is proposed to be made, and the appellant must at that time provide the respondent with copies of all documents evidencing the incurring of the costs and the amount of the costs;
13.2 the respondent is to provide a response in writing within seven days of the receipt of a notice provided pursuant to paragraph 5.1 hereof which response either consents to the proposed draw down (which consent shall not be unreasonably withheld) or objects to the proposed draw down and specifies with reasonable particularity the reason or reasons why such objection is made;
13.3 in the event that the appellant does not accept any objection to a proposed draw down from the joint bank account made by the respondent pursuant to paragraph 5.2 hereof then the appellant may submit the dispute to an independent expert (“Independent Expert”) in accordance with, and subject to, Resolution Institute Expert Determination Rules. Unless the parties agree upon an Independent Expert, either party may request a nomination from the Chair of Resolution Institute;
13.4 any determination of the Independent Expert pursuant to paragraph 5.3 hereof shall be final and binding upon the parties.
14.The appellant will within 28 days of the date of this Order provide to the respondent full particulars of and make disclosure to the respondent of all documents evidencing:
14.1 The proceeds of sale of grapes harvested from the vines on the Land in each of the calendar years 2015 and 2016.
14.2. Any sums payable to the appellant, but not yet received by the appellant, from the proceeds of sale of grapes harvested from the vines on the Land in each of the calendar years 2015 and 2016.
14.3 The proceeds of sale of any crops grown on the Land in the calendar years 2015 and 2016.
14.4 Any sums payable the appellant, but not yet received by the appellant, from the proceeds of sale of the any crops grown on the Land in the calendar years 2015 and 2016.
On 22 December 2017, the Full Court dismissed the appeal.[6] Between the commencement of the original proceedings and the dismissal of the appeal, the following financial benefits were said to have been acquired by one or other party:
·Mr Eckert paid to Mr Roberts, in five tranches (two of $45,000 and three of $40,000) the sum of $210,000, agreed to be referable in some way to Mr Eckert’s occupation of Eckert Farm. Two of the $40,000 payments were made in compliance with the undertaking recorded in paragraph 10 of Hinton J’s orders, above.
·In around March 2016, Mr Eckert harvested the 2016 grape vintage on Eckert Farm. He received gross proceeds of sale in the amount of $261,725.42.
·In around March 2017, Mr Eckert harvested the 2017 grape vintage on Eckert Farm. The grapes were made into wine and stored with Riverland Vintners Pty Ltd. On 24 October 2018, Stanley J made an order which effectively permitted Mr Roberts to retain the gross proceeds of sale for that vintage in the amount of $323,459.28.
·On 2 February 2018, Nicholson J made orders consequential on the appeal judgment, permitting Mr Roberts to harvest the 2018 grape vintage on Eckert Farm, but permitting Mr Eckert to continue to occupy the land until the harvest was completed. In respect of this harvest, Mr Roberts received gross proceeds of sale in the amount of $208,812.03.
[6] Eckert v Roberts [2017] SASCFC 176 at [253] (Nicholson J, Kourakis CJ and Stanley J agreeing).
Following completion of the 2018 harvest, Mr Roberts required Mr Eckert to give up possession of the land. Mr Eckert then brought an application for a stay of Nicholson J’s orders of 2 February 2018, pending the determination of an application for Special Leave to appeal to the High Court. That application was refused.[7] Mr Eckert vacated the land on 18 April 2018.
[7] Eckert v Roberts [2018] SASCFC 21 (Kourakis CJ, Stanley and Nicholson JJ).
Against this background, it is helpful to overlay a more detailed chronology. I set out, without alteration, the chronology that Nicholson J adopted for the purpose of the interlocutory applications:
(i)    On 28 May 2015, the proceedings were instituted.
(ii)     On 21 September 2015, the defendant paid the plaintiff the sum of $45,000.
(iii)In or about March 2016, the defendant harvested the grapes on the Land (the 2016 Vintage). The defendant received gross proceeds of sale for the 2016 Vintage said to be in the amount of $261,725.42.
(iv)At or about the same time (29 March 2016), the defendant paid the plaintiff the sum of $45,000.
(v)     On 25 October 2016, the defendant paid the plaintiff the sum of $40,000.
(vi)On 3 February 2017, the trial judge made substantive orders (FDN 38). At the same time, his Honour made orders relating to the prosecution of an appeal, which noted certain undertakings of the defendant (FDN 37).
(vii)Judge’s orders 5 and 6 declared that the plaintiff was entitled to damages for trespass to land, and damages for conversion of the grapes, for the period from 5 September 2015 onwards. Judge’s order 7 directed that an assessment of the damages payable by the defendant to the plaintiff be conducted by a Master of the Court.[8]
[8]     The defendant in his chronology has used the language, “there be an account and inquiry as to damages before a Master of the Court”. The language of the order itself is to be preferred; whether or not the defendant is entitled to pursue an account and inquiry is a matter in dispute.
(viii)The undertaking in paragraph 10 of the orders of 3 February 2017 required the defendant to make certain payments to the plaintiff during the currency of the appeal.
(ix)There was no express grant of liberty to apply in the orders of 3 February 2017, other than in respect of the time of possession.
(x)In or about March 2017, the defendant harvested the grapes on the Land (the 2017 Vintage). The grapes were made into wine and stored with Riverland Vintners Pty Ltd.
(xi)At or about the same time (30 March 2017), in compliance with the undertaking in paragraph 10 of the orders of 3 February 2017, the defendant paid the plaintiff the sum of $40,000.
(xii)On 5 October 2017, in compliance with the undertaking in paragraph 10 of the orders of 3 February 2017, the defendant paid the plaintiff the sum of $40,000.
(xiii)An appeal to the Full Court from the judgment and the orders of 3 February 2017 was dismissed on 22 December 2017.
(xiv)On 2 February 2018, Nicholson J made further substantive orders (FDN 49) (the orders of 2 February 2018). These orders included orders relating to the disposition of the proceeds of sale for the 2017 Vintage. His Honour granted liberty to apply.
(xv)The orders of 2 February 2018 empowered the plaintiff to conduct the harvest for the 2018, despite the fact that the defendant remained in possession of the Land. In or about March 2018, he did so (the 2018 Vintage). In respect of the 2018 Vintage, the plaintiff has received gross proceeds of sale said to be in the amount of $208,812.03.
(xvi) On 18 April 2018, the defendant vacated the Land.
(xvii)On 8 August 2018, an application for special leave to appeal from the judgment of the Full Court was dismissed.
(xviii)On 24 October 2018, Stanley J made further substantive orders, amending the orders of 2 February 2018, which have not yet been sealed. His Honour made an order that effectively permitted the plaintiff to retain the gross proceeds of sale for the 2017 Vintage said to be in the amount of $323,459.28.
(Footnote in original)
The interlocutory applications

Following delivery of the appeal judgment, both parties filed interlocutory applications. Mr Eckert’s application sought orders designed to address the consequences arising from his continued occupation of Eckert Farm between the date from which he was found by Justice Hinton to be a trespasser and the date on which he finally vacated the land, 18 April 2018. Mr Roberts effectively sought to enjoin Mr Eckert from taking any further steps in the proceedings.
Justice Nicholson summarised the issues between the parties at that stage as follows:[9]
[9] Roberts v Eckert [2020] SASC 27 at [3]-[5].
During the period in which the defendant occupied the Land as a trespasser, he continued to work the Land, and in particular the grape vines, whilst continuing to assert that he had an entitlement to some form of equitable ownership of the Land. Notwithstanding that the defendant failed with this primary claim, he has continued to maintain that he is entitled to be compensated for work done and money expended by him during the period he was wrongfully in occupation of the Land.
The period of the defendant’s occupation after the date upon which he became a trespasser can be broken into the following potentially relevant subperiods:
(i)the period, commencing 5 September 2015, during which the defendant remained in occupation whilst defending the plaintiff’s claim to the Land and including during the trial of the dispute;
(ii)the period between 20 December 2016, being the date the judgment declaring the defendant to have been a trespasser from 5 September 2015 was delivered, until 22 December 2017 when the Full Court delivered judgment dismissing the appeal; and
(iii)the period between 22 December 2017, the date of the Full Court’s judgment, until possession was given on 18 April 2018, during the early part of which period an unsuccessful application for a stay of the orders requiring vacant possession was prosecuted.
During the period of the defendant’s occupation of the Land as a trespasser, financial benefits were obtained by both parties and labour and costs expended by the defendant. At issue between the parties now is the extent to which, if at all, the defendant is entitled to recover from the plaintiff a so called “just allowance” for work performed and money expended by the defendant and, if so, the process by which any such claim is to be pursued.
(Footnotes omitted)
In summary, Mr Eckert contended that the $210,000 he had paid from the date he commenced trespassing and the date he gave up possession of the land exceeded any damages for trespass to which Mr Roberts would be entitled. He sought to recover any overpayment, a claim which he characterised as restitutionary. Further, he claimed to be entitled to a just allowance for work done and expenses incurred with respect to the three grape vintages, treating his dealings with each vintage as a separate act of conversion.
As to the three vintages, Nicholson J observed as follows:
·it was common ground that Mr Eckert had converted the 2016 vintage. Mr Eckert’s case was that the assessment of damages would be of the gross proceeds, less a just allowance for his work done and expenses incurred;
·it was common ground that while Mr Eckert had converted the 2017 vintage, Mr Roberts had obtained and retained the gross proceeds of sale. As such, Mr Roberts had likely completely mitigated his loss and had no extant entitlement to damages. Nevertheless, Mr Eckert maintained that he was entitled to recover from Mr Roberts a just allowance with respect to this vintage. His Honour took the view, however, that Mr Roberts had suffered no loss capable of assessment and against which any allowance could be set off. Mr Eckert’s claim in respect of the 2017 vintage was properly characterised as a purely restitutionary claim;
·it was common ground that Mr Eckert had not converted the 2018 grape vintage. Mr Roberts had conducted the harvest, sold the grapes and had the benefit of the proceeds of sale. However, Mr Eckert had tended the vineyard prior to harvest and maintained an entitlement to a just allowance.
Justice Nicholson described the course that Mr Roberts took on the first day of the hearing of the application in response to these claims, as follows:[10]
The plaintiff is firmly of the view that the defendant is insolvent and that there is no prospect of the plaintiff recovering from the defendant any of the outstanding costs or any damages should such ultimately be awarded in his favour. Accordingly, the plaintiff is anxious to bring his dispute with the defendant to an end as soon as practicable and to incur as little further expense in doing so as possible. The plaintiff, no doubt, does not wish to run the risk that an overall accounting between the parties might result in a positive balance in favour of the defendant. In these circumstances, he has nothing to gain but risks something to lose if the proceedings were to continue.
For these reasons, the plaintiff indicated during the first day of the hearing before me that he abandoned his entitlement to damages for trespass to the land, for conversion of any of the grape vintages and for any assessment thereof to take place in accordance with Judge’s orders 5, 6 and 7. When submissions resumed, having been adjourned part heard, this act or notice of abandonment was identified with more precision in the plaintiff’s supplementary outline of submissions as follows:
8.    The plaintiff has submitted that he is entitled to abandon or waive his entitlement to seek an assessment of the damages payable to him by the defendant, and that this is a right which exists only in the plaintiff.
9.    If the plaintiff is right in this contention that the right to waive or abandon exists only in him and not the defendant, then he makes that election.
10.    If the Court was to determine that the plaintiff’s submission was wrong as a matter of law or procedure or construction of the orders made by Hinton J, and that the defendant was entitled to proceed to the assessment of damages and to raise positive claims against the plaintiff on the assessment of damages, then the plaintiff would not so elect.
(Footnote omitted)
[10] Roberts v Eckert [2020] SASC 27 at [27]-[28]
Justice Nicholson summarised the issues arising before him accordingly:[11]
(i)Is the plaintiff entitled to elect to unilaterally waive or abandon his rights to an assessment of damages under Judge’s orders 5, 6 and 7.
(ii)If so, can the defendant, nevertheless, himself pursue the assessments envisaged by Judge’s orders 5, 6 and 7 with a view to obtaining a determination of his positive monetary claims against the defendant, as earlier identified.
(iii)In the alternative, does the Court have the power and should it exercise it to make further orders permitting the defendant’s claims to be assessed in these proceedings notwithstanding the plaintiff’s abandonment.
(iv)If either the plaintiff cannot unilaterally abandon or the defendant is, nevertheless, entitled to pursue the assessment envisaged by Judge’s orders 5, 6 and 7, to what extent would the defendant be entitled to agitate any or all of his positive claims, earlier identified, within the assessment proceedings before a Master.
[11] Roberts v Eckert [2020] SASC 27 at [29]
The decision
Justice Nicholson observed that orders 5 and 6 were final, and all appeal rights had been exhausted. The only issue remaining was the assessment of Mr Roberts’s damages for trespass and conversion in accordance with orders 5, 6 and 7 which, on their face, conferred an entitlement on Mr Roberts only. Order 7 was procedural, enabling that assessment.
His Honour’s reasoning comprised the following steps:
·as a matter of principle, Mr Roberts must be entitled to abandon any rights under the judgment that rested only with him. He could not be compelled to pursue the right before the Master. Whether such an abandonment had costs consequences was not in issue at that stage.[12]
·the causes of action relied on at trial were the common law torts of trespass to land and conversion, which sound only in common law damages. Orders 5, 6 and 7 concerned, therefore, an assessment of such damages;
·for Mr Eckert to have become entitled to an order for an account, he would have had to prove at trial that Mr Roberts was an accounting party.[13] Mr Eckert did not do so, nor did he seek at trial any relief of this nature. It was therefore not open for the trial judge to order an account pursuant to rules 6 SCR 243 and 6 SCR 251;
·in these circumstances, it was not open to disregard the express terms of the orders in favour of an interpretation that an accounting between the parties was impliedly ordered. The orders were clear on their face. They conferred on the respondent alone a right to have his common law damages assessed. It followed that the respondent was entitled to unilaterally abandon that right;
·Given this interpretation of the orders, Nicholson J noted that given the respondent had abandoned his right to have his damages assessed, the appellant had obtained the full benefit which any proved just allowance would have given him as part of the assessment process. To obtain a positive balance in his favour, the appellant would have been required to counterclaim at trial, relying on a claim in restitution capable of surviving his conduct as a trespasser. No such counterclaim was made.
[12] Roberts v Eckert [2020] SASC 27 at [36].
[13] Hancock v Rinehart [2015] NSWSC 646 at [338] (Brereton J).
With respect to the $210,000 that Mr Eckert paid to Mr Roberts while he was a trespasser, he said:[14]
The defendant’s claim to recover part or all of the $210,000 paid to the plaintiff with reference to the defendant’s occupation of the Land whilst a trespasser stands apart from any assessment of the plaintiff’s damages for trespass to the Land. Had that assessment proceeded, the plaintiff’s damages, if less than $210,000, might be assessed as nominal following a set off. However, in order to recover any balance the defendant would need to plead an independent claim based on a cause of action in restitution. If so, the plaintiff would be entitled to raise such defences as may be open to him.
[14] Roberts v Eckert [2020] SASC 27 at [55].
He held that claims for a just allowance in respect of the 2017 and 2018 vintages would fall outside of any assessment of damages ordered by the trial judge. Mr Roberts had suffered no loss on the 2017 vintage and there had been no conversion of the 2018 vintage grapes. As to the 2016 vintage, the abandonment of the claim for damages meant that there was nothing against which the defendant might set off any just allowance.
Justice Nicholson then turned to whether, in any event, he ought to exercise the power to order an accounting between the parties as part of the Court’s ‘working out’ jurisdiction. 6 SCR 243(1), conferring a power analogous to the common law ‘working out’ jurisdiction, provided as follows:
The Court may, on application by a party, make any order necessary to give effect to a judgment.
In declining to make such an order, Nicholson J reasoned as follows:[15]
At common law when exercising liberty to apply, any party is at liberty to approach the Court to deal with matters that arise in the working out of an order.[16] The notion is directed to the enforcement of an order not to a determination or statement of a party’s rights. The availability of liberty to apply does not mean that a judgment is not final.[17] Neither liberty to apply nor subrule 243(1) gives a right to apply to vary or discharge the order in question[18] and do not enable the giving of substantive relief not sought in any originating process. The metes and bounds of the working out jurisdiction have been canvassed at length by Campbell JA (with whose reasons Tobias JA agreed) in Australian Hardboards Ltd v Hudson Investment Group Ltd.[19]
The defendant contends that this Court can make further orders pursuant to subrule 243(1) along the lines of those sought in the defendant’s interlocutory application (FDN 76) by exercising its working out jurisdiction. The short answer to this arises from my findings that the Judge’s order 5, 6 and 7 conferred no right of enforcement on the defendant,[20] were amenable to unilateral abandonment by the plaintiff, and have been abandoned. As such, nothing now remains with respect to which liberty to apply might be exercised.
If I am wrong in this respect, to the extent that the defendant seeks to maintain and enforce claims against the defendant [sic – plaintiff] with a view to recovering a positive balance, such would comprise substantive relief and be tantamount to seeking a variation of Judge’s orders 5, 6 and 7 or new orders aimed at determining the parties’ substantive rights inter se, additional thereto. The directions sought by the defendant in FDN 76 fall outside the power available to the Court pursuant to either subrule 243(1) or any liberty to apply. I agree with the submissions of the plaintiff that nothing in Campbell JA’s analysis of and application of the working out jurisdiction in Australian Hardboards lends any support to the defendant’s argument on the facts of the present case.
(Footnotes in original)
[15] Roberts v Eckert [2020] SASC 27 at [59]-[61].
[16] Penrice v Williams (1883) 23 ChD 353.
[17] Abigroup v Abignano (1992) 39 FCR 74 at 88.
[18] CSIRO v Perry (No 2) (1988) 53 SASR 538 at 557.
[19] [2007] NSWCA 104; (2007) 70 NSWLR 201 at [50]-[71].
[20] To be distinguished from an entitlement to defend (by set off or otherwise) any assessment pursued by the plaintiff.
Consequently, Nicholson J dismissed the appellant’s interlocutory application. It followed that there was no utility in Mr Roberts’s interlocutory application.
On 23 July 2020, the Full Court granted Mr Eckert leave to appeal against Nicholson J’s decision.[21]
[21] Eckert v Roberts [2020] SASCFC 71.
The appeal
Following the abandonment of certain grounds of appeal, the issues on appeal centred on a complaint that Nicholson J erred in determining that he did not have power to make the orders sought by Mr Eckert. The grounds of appeal are as follows:
1.The learned primary judge erred in holding that Orders 5, 6 and 7 of “the Judge’s Orders” (as defined) conferred an entitlement on the respondent (the plaintiff) only, and that it gave rise “rights under the judgment that rest only with him”, with the consequence that the respondent (the plaintiff) was entitled to unilaterally abandon that right (para. [47]). On the proper construction of Orders 5, 6 and 7 of “the Judge’s Orders”, his Honour erred:
…
1.3    in holding, in the absence of the respondent (the plaintiff) being an accounting party, there was a requirement that the appellant (the defendant) have made a formal counterclaim in order to make a claim to receive a positive balance (para [49]-[53]); and
1.4    in not holding that the effect of the orders was to require a further curial process to determine rights and liabilities as between both parties, including whether the appellant (the defendant) would be entitled to a positive balance found due to him, and that neither party had the right to unilaterally end that process.
2.The learned primary judge erred in holding that, if the respondent (the plaintiff) was entitled to unilaterally abandon his rights under Orders 5, 6 and 7 of “the Judge’s Orders” and had done so, there was no jurisdiction or power under the power variously described as the “working out jurisdiction” and “the liberty to apply jurisdiction” to make further orders (para. [60]), and ought to have held that the Court’s jurisdiction or power remain enlivened in any event.
3.Further, the learned primary judge erred in holding that the directions sought by the appellant (the respondent) fell outside that jurisdiction or power (para. [61]), and ought to have held that:
3.1    the directions were not to be characterised as “substantive relief’ in the sense used and did not need to be sought in any originating process in order for the jurisdiction or power to be exercised; and
3.2    in any event, irrespective of such characterisation, the jurisdiction or power enabled the Court to make the directions sought.
4.The learned primary judge erred in holding that the issue of whether the “milder” rule or the “severer” rule should apply to the appellant’s conduct was hypothetical and that the Court had an entitlement as a matter of discretion to decline to determine it, and in the circumstances ought to have made a finding that the appellant’s wrongful conduct as a trespasser was “bona fide” and not “wilful” with the meaning of the relevant authorities, with the effect that he was not barred from seeking his claims against the respondent (para. [64]-[65]).
Ground 4 is dependent on success on at least one of the earlier grounds. The need to determine which rule should apply to Mr Eckert’s conduct only arises if Nicholson J erred in holding that he did not have power to make the orders.
Jurisdiction, power and finality
Ground 1 is expressed in terms that raise the proper construction of orders 5, 6 and 7. Grounds 2 and 3 are aimed at the more fundamental question of whether the Court had jurisdiction to entertain the application in any event. It is helpful at this stage to make some observations about the authority of courts to decide disputes.
Justice Leeming, writing extra-curially, has pithily described when courts have jurisdiction:[22]
Courts have authority to decide when two conditions are satisfied: when the exercise of judicial power resolves a justiciable controversy of a kind which falls within the court’s limits, and when the persons bound by the exercise of judicial power are amenable to its exercise. In short, the court must have subject matter jurisdiction and personal jurisdiction in order to have authority to decide any particular proceeding.
[22] Leeming, Mark, Authority to Decide: The Law of Jurisdiction in Australia (2^nd ed.), The Federation Press, 2020, [1.1].
Further, as his Honour notes, jurisdiction is invoked by making a claim. Indeed, that is all that is necessary.[23] Once a claim is made, the court has an implied jurisdiction to decide whether it has jurisdiction.[24]
[23] Palmer v Ayres (2017) 259 CLR 478 at [27] (Kiefel, Keane, Nettle and Gordon JJ).
[24] New South Wales v Kable (2013) 252 CLR 118 at [31] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
Jurisdiction will, in respect of any matter, ultimately be spent. The claim might be withdrawn. Otherwise, it will merge with a final judgment. This may be a judgment determining the merits of the claim or simply that the court has no jurisdiction to determine the claim. That merging is contingent upon the exercise of powers within any appellate jurisdiction to set aside the judgment. For present purposes, when there is no appeal or an unsuccessful appeal, the final judgment on the claim remains.
The consequence of such a merging can be described by reference to the common law principle of finality. Once a claim has merged into a judgment, finality prevents the court from exercising any further jurisdiction with respect to the matter raised by the claim, other than over further consequential matters in respect of which jurisdiction is conferred by statute, and incidental or ancillary matters. I will return to these, below. In Achurch v The Queen, the High Court explained the importance of the principle of finality:[25]
[25] Achurch v The Queen (2014) 253 CLR 141 at [14]-[15] (French CJ, Crennan, Kiefel and Bell JJ).
Absent specific statutory authority, the power of courts to reopen their proceedings and to vary their orders is constrained by the principle of finality. That principle was stated succinctly in D’Orta Ekenaike v Victoria Legal Aid[26] and re-stated by the plurality in Burrell v The Queen[27]:
“A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.”
As was said in Burrell, the principal qualification to the general tenet of finality is the appellate system[28]. Relevant to the position of the Court of Criminal Appeal of New South Wales, their Honours said[29]:
“But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded.”
The principle protects parties to litigation from attempts to re-agitate what has been decided and serves as “the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time”[30].
(Footnotes in original)
[26] (2005) 223 CLR 1 at 17 [34].
[27] (2008) 238 CLR 218 at 223 [15].
[28] (2008) 238 CLR 218 at 223 [15].
[29] (2008) 238 CLR 218 at 223 [15].
[30] (2008) 238 CLR 218 at 223 [16].

The High Court has since confirmed that the principle of finality operates such that when all appeal rights are exhausted, a perfected judgment may only be set aside on a pleading and proof of fraud.[31]
[31] Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165 at [62].
The operation of the principle of finality is described in the authorities in terms of preventing a court from any further exercise of power in respect of the matter. Put differently, once the claim has merged into a final judgment, and the orders perfected, there is no longer a claim and jurisdiction is spent.
That is, at least, one way of describing the general principle. As I have already observed, further powers may be conferred on a court by statute, capable of being exercised in respect of a matter following the entry of final judgment. Further, the Supreme Court, as a superior court of record, has what has been described as an ‘inherent jurisdiction’, which is better understood as a collection of powers. In NH v Direction of Public Prosecutions (SA) (‘NH’), the High Court explained these powers in the following way:[32]
The statute which vested in the Supreme Court the like jurisdiction of the courts of common law and chancery conveyed with that vesting “inherent jurisdiction”. As this Court said in Keramianakis v Regional Publishers Pty Ltd, the inherent jurisdiction is a power described generically as “the inherent power necessary to the effective exercise of the jurisdiction granted”[33]. It is a power or collection of powers that comes with the status of the Supreme Court of a State as a superior court of record[34]. Contrary to the submissions of the DPP, and the findings of the majority of the Full Court[35], inherent jurisdiction is not a “separate head of jurisdiction”. Reliance for that proposition was placed upon the observations of Dawson J in Grassby v The Queen[36]. His Honour there spoke of the exercise by a superior court of inherent power in the discharge of its general responsibility for the administration of justice[37]. He did not draw a relevant distinction between inherent jurisdiction and inherent power. However, the distinction between jurisdiction and power is of importance. As five Justices of this Court observed in PT Bayan Resources TBK v BCBC Singapore Pte Ltd[38]:
“‘Jurisdiction' is a word of many meanings. The term ‘inherent jurisdiction’ has been described as ‘elusive’, ‘uncertain’ and ‘slippery’. The difficulty is minimised if the term is confined to its primary signification: to refer to the power inhering in a superior court of record administering law and equity to make orders of a particular description. For present purposes, inherent jurisdiction can be used interchangeably with 'inherent power’.”
(Footnotes omitted)
…
The species of the genus of the inherent power of the Supreme Court of South Australia were aptly described by the late Bradley Selway, a former Solicitor-General for South Australia and Justice of the Federal Court, in his book on the Constitution of South Australia[39]. They are to be found in all superior courts. They include the powers to punish contempt, to grant injunctions, to protect the subject matter of the litigation, to correct accidental slips and omissions in court records, including in orders of the court, and to stay proceedings in order to prevent the abuse of the processes of the court. The last mentioned is an aspect of the inherent power described by Master Jacob in 1970, in a much cited article, as the power to maintain the authority of the court and to prevent its processes from being obstructed and abused[40].
(Footnotes in original)
[32] NH v Direction of Public Prosecutions (SA) (2016) 260 CLR 546 at [67], [69] (French CJ, Kiefel and Bell JJ).
[33] (2009) 237 CLR 268 at 280 [36].
[34] R v Forbes; Ex parte Bevan (1972) 127 CLR 1 at 7 per Menzies J, Barwick CJ, Walsh J and Stephen J agreeing at 5, 9, 10; PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1 at 17 [37] per French CJ, Kiefel, Bell, Gageler and Gordon JJ.
[35] (2015) 123 SASR 523 at 562 [125].
[36] (1989) 168 CLR 1.
[37] (1989) 168 CLR 1 at 16.
[38] (2015) 258 CLR 1 at 17-18 [38] per French CJ, Kiefel, Bell, Gageler and Gordon JJ; see also Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 59-61 [39]-[42] per French CJ.
[39] Selway, The Constitution of South Australia (1997), pp 114-116 [8.3.5].
[40] Jacob, “The Inherent Jurisdiction of the Court”, Current Legal Problems vol 23 (1970) 23 at p 27.
These inherent powers are strictly limited. Thus, as the High Court in NH observed:[41]
The inherent power to correct an order after it is perfected by being drawn up as a record of the court is very limited. In such a case the proceeding, apart from any statutory power to the contrary, is at an end in that court and is in substance beyond its recall[42]. That does not prevent limited correction of an order after final entry so that the record represents what the court pronounced or intended to pronounce. That aspect of the power is called the “slip rule”. However, it does not permit reconsideration or alteration of the substance of the result that was reached and recorded[43].
[41] NH v Direction of Public Prosecutions (SA) (2016) 260 CLR 546 at [71] (French CJ, Kiefel and Bell JJ).
[42] Achurch v The Queen (2014) 253 CLR 141 at 153-154 [17] per French CJ, Crennan, Kiefel and Bell JJ citing Bailey v Marinoff (1971) 125 CLR 529 at 530 per Barwick CJ.
[43] Burrell v The Queen (2008) 238 CLR 218 at 224-225 [21] per Gummow A-CJ, Hayne, Heydon, Crennan and Kiefel JJ.
Subject to these powers of protection and correction, the authority of the court to decide the matter raised by the claim (in whatever form that claim might take), is spent.
However, whether or not the court is a superior court of record, the final orders may themselves expressly or impliedly leave scope for further orders to give full effect to those final orders. This is sometimes described as the ‘working out jurisdiction’, although consistently with the observations by the High Court in NH, above, it is not so much some superadded jurisdiction of courts, but rather a necessary incident of the jurisdiction engaged on the claim. The New South Wales Court of Appeal in Australian Hardboards Ltd v Hudson Investment Group Ltd (‘Australian Hardboards’) described this facility as being enlivened by an order granting liberty to apply on the making of final orders:[44]
When final relief has been granted in a suit, an order granting liberty to apply enables further orders to be made which are necessary for the purpose of implementing and giving effect to the principal relief already pronounced or, as it is sometimes called, “working out the order” …
[44] Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201 at [50] (Campbell JA, Tobias JA agreeing).
The Court referred to Abigroup Ltd v Abignano, in which the Full Federal Court explained the facility enlivened by an order reserving liberty to apply:[45]
The reservation of liberty to all parties to apply to a court is a provision directed essentially to questions of machinery which may arise from the implementation of a court’s orders. They include cases where a court may need to supervise the enforcement of orders after they have been made. They relate essentially to orders (not often to declarations) in practice in our experience. We agree with the submission of counsel or the appellant that orders of this kind relate to enforcement and not to statements of the rights of the parties. Historically orders reserving liberty to apply are for limited purposes. They arise, for example, upon a decree for specific performance where the unsuccessful defendant declines to sign all documents and do whatever is necessary to ensure that the contract the subject of the suit is performed. The reservation of liberty to apply ensures that the court may then make orders to secure that the relevant contract is enforced by the defendant by, for example, appointing the appropriate officer of the court to execute the necessary documents of conveyance so as to give title to the successful plaintiff. Historically the reservation by the Court of Chancery of further consideration of a decree was intended to cover the circumstance where following the pronouncement of the decree (a final decree) a further hearing was necessary for the court to deal with some outstanding issue sometimes requiring taking further evidence and making further declarations or orders. But this did not detract from the initial orders as being final orders. Rather it was a mechanism designed by the Court of Chancery to obviate the necessity of a further suit being instituted to deal with matters that were essentially consequential upon the making of the initial final decree. This demonstrates that there is no inconsistency between the making of final decrees, judgments or orders or declarations and subsequent orders of the court. It all depends on the circumstances of the case and the particular orders or decrees formulated by the court.
[45] Abigroup Ltd v Abignano (1992) 39 FCR 74 at 88 (Lockhart, Morling and Gummow JJ).
Critically, then, as the Court in Australian Hardboards observed, liberty to apply cannot be deployed to obtain an order that alters the substance of a final order.[46] Even more starkly, it cannot be used to devise what is properly characterised as a separate claim from that which engaged the jurisdiction of the court. ‘Working out’ powers can certainly extend, however, to include the substitution of relief where an order for specific performance is not complied with, such as by the appointment of a receiver or the granting of an injunction.[47] As the Court explained in Australian Hardboards:[48]
Rather, what can be done under a reservation of liberty to apply depends on what needs to be done, in the particular case, to work out the particular orders that have been made. If an order is one the working out of which of its nature involves deciding complex questions, or questions that were not specifically raised at the time that the order was made, those questions can be raised and decided in the original suit pursuant to liberty to apply.
[46] Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201 at [52] (Campbell JA, Tobias JA agreeing).
[47] Riltang Pty Ltd v L Pty Ltd [2004] NSWCSC 977 at [51] (White J); Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 at 598 (McPherson SPJ).
[48] Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201 at [56] (Campbell JA, Tobias JA agreeing).
This passage explains the essence of the power: it is to make any orders necessary to address any issues arising on account of the final orders determining the claim and which therefore remain within the court’s jurisdiction so engaged.
In South Australia, at the time when Mr Eckert made the interlocutory application, this power was the subject of 6 SCR 243, which provided, in part:
(1)The Court may, on application by a party, make any order necessary to give effect to a judgment.
(2) For example—
(a) the Court may order that accounts be taken or an inquiry conducted…
Orders 5 and 6 made by Hinton J were declaratory of Mr Roberts’s entitlement to recover damages from Mr Eckert for trespass and conversion, respectively. Order 7 was that the assessment of damages payable by Mr Eckert to Mr Roberts be conducted by a Master of the Court, and that the trial of all remaining questions as to the assessment of damages payable by Mr Eckert to Mr Roberts be remitted to a Master. It was this entitlement to an assessment of damages, manifestly falling within the jurisdiction established by Mr Roberts’s claim and presenting itself once the final declaration of entitlement had been made, that Mr Roberts purported to abandon. This was not part of the Court’s jurisdiction on account of any reservation of liberty to apply or some analogous process. It was raised by the pleaded claim.
The primary question is whether the claim on Mr Eckert’s subsequent interlocutory application fell within the jurisdiction of the Court as being necessary to finalise the matter. It is helpful to consider separately:
·the claim for an account of the $210,000 he paid during the period of trespass; and
·the claim for remuneration payable to him in respect of his labour on the vines on the land after 5 September 2015 and the expenses incurred in growing the grapes.
The application for an account of the payment of $210,000
The payment of $210,000 was comprised of:
·two payments of $45,000, made on 21 September 2015 and 29 March 2016 respectively, that is, during the period of the trespass. A previous payment of $38,000 in March 2015 had cleared the arrears for rent at that time, paid the rent for March and paid part of the April rent.[49] From April until the institution of the proceedings on 5 August 2015, Mr Eckert had again fallen into arrears. Some part of the first payment of $45,000 on 21 September 2015 would have accounted for those arrears. However, Hinton J found that no explanation had been given as to why the payments in September 2015 and March 2016 were each in the sum of $45,000;
·one payment of $40,000, made on 25 October 2016, also during the period of trespass, after Hinton J had reserved judgment but before he had delivered judgment; and
·two payments of $40,000, made on 30 March 2017 and 5 October 2017, also during the period of trespass, in compliance with the undertaking recorded in paragraph 10 of Hinton J’s orders on 3 February 2017.
[49] Roberts v Eckert [2016] SASC 197 at [284]-[285].
At the hearing of this appeal, senior counsel for Mr Eckert characterised these payments as having been made voluntarily by way of an occupation fee (a description that necessarily applied to the first three of these payments), and subsequently pursuant to the undertaking (the last two payments). In any event, they were clearly made on account of Mr Eckert’s continued occupation of the land. Mr Eckert had acknowledged before Nicholson J that Mr Roberts was entitled to damages for the period 5 September 2015 to 18 April 2018, but contended that the $210,000 paid amounted to considerably more than that entitlement.
Justice Nicholson observed that Mr Eckert had characterised this aspect of the claim as restitutionary. Senior counsel on the appeal accepted that Mr Eckert was asserting, in respect of these moneys, an independent cause of action of the nature of an action for moneys had and received, on the basis that there had been a payment for a purpose that had failed. That is notwithstanding that the interlocutory application before Nicholson J was expressed as seeking an inquiry and account into those moneys paid, such that there be determined a balance that was due and payable as between the parties.
Notwithstanding his acceptance that this component of the application asserted a separate cause of action, Mr Eckert maintained that the Court’s jurisdiction having been invoked by Mr Roberts, the payments made pursuant to the undertakings, at the very least, were matters falling properly within the jurisdiction of the Court as already invoked.
The first three payments were, clearly enough, made on the basis that Mr Eckert asserted an entitlement to occupy the land with a commensurate obligation to pay all mortgage payments payable by Mr Roberts on having purchased the land, as well as all outgoings such as rates and water charges. He had pleaded an agreement to this effect in his Defence and Counterclaim.[50]
[50] Defence at [11]; CAB 18.
The effect of Hinton J’s judgment on 20 December 2016 was that Mr Eckert had no such entitlement and no such commensurate obligation. While amenable to appeal, it was a final judgment with which the pleadings had merged. The critical orders for the purpose of the present analysis, entered on 3 February 2017, were simply dispositive of the counterclaim and otherwise declaratory:[51]
1. The counterclaim of the defendant Christopher Mark Eckert be dismissed.
…
4. The Lease of the Land by the plaintiff as lessor to the defendant as lessee pursuant to memorandum of lease commencing on 31 August 2010 (“the Lease”) was validly terminated by the plaintiff one month from the date of service upon the defendant of the statement of claim of the plaintiff filed on 5 August 2015 in this action.
[51] Roberts v Eckert [2016] SASC 197 at [295].
The further orders that Hinton J made, also on 3 February 2017, did not (and could not) stay those orders. They established a regime to preserve the status quo, pending Mr Eckert’s appeal. They did not change the fact that the counterclaim had merged with the judgment. In circumstances where Mr Eckert accepted, correctly, that his claim in respect of these first three amounts asserted a separate cause of action from that which had merged with the final judgment, the Court’s jurisdiction was not engaged in respect of any such claim.
The two further payments, made pursuant to the undertakings recorded in these orders, are a little more difficult to characterise. Mr Eckert submits that these payments were made ‘within’ the matters that had been invoked by Mr Roberts in bringing the claim. He submitted that the existence of the undertakings provided a ‘sufficient connection’ to the subject matter of the litigation. In consequence, his claim for an account of the two payments made pursuant to those undertakings remained within the jurisdiction as engaged by the claim.
He relied on two authorities to this end. In Caboolture Park Shopping Centre Pty Ltd (In liq) v White Industries (Qld) Pty Ltd (‘Caboolture’),[52] the respondent had obtained judgment on a cross-claim against the applicant, which judgment included an order for costs. The applicant then went into liquidation and the respondent applied for a supplemental costs order against the applicant’s solicitors. The effect of that order would have been to make the solicitors liable for those costs. The solicitors argued that once the proceedings had concluded, there was no jurisdiction to ‘reopen’ the case, given the terms of s 43 of the Federal Court of Australia Act 1976 (Cth), which conferred jurisdiction to award costs ‘in all proceedings before the Court’.
[52] (1993) 45 FCR 224.
That matter was complicated by the costs order being sought against third parties, who were solicitors. As to the jurisdiction to award costs ‘in all proceedings’, the Court observed that s 4 of the Act defined ‘proceeding’ as:[53]
…a proceeding in a Court, whether between the parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal;
[53] Caboolture Park Shopping Centre Pty Ltd (In liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 230 (Lee, Hill and Cooper JJ).
The Court held that there was nothing in this conferral of jurisdiction that limited it temporally to the delivery of final judgment:[54]
The context of the Act provides no indication that the words defining the grant of jurisdiction in s 43 of the Act have a temporal meaning which limits the jurisdiction conferred to a jurisdiction which terminates when a judgment has been pronounced and extracted in the proceeding that has invoked the jurisdiction. There is no cause for such a meaning to be implied. First, such a construction would provide less than the jurisdiction traditionally exercised by superior courts of record. Secondly, the jurisdiction conferred by s 43 is a separate jurisdiction dealing with the liability for the costs of proceedings conducted in the Court in the exercise of other jurisdiction of the Court: see s 26 of the Judiciary Act for the conferral of a similar jurisdiction on the High Court in respect of “matters” brought before that Court. The clear intent of Parliament is to provide sufficient jurisdiction and adequate powers to enable the Court to quiet the controversies exposed in the proceedings brought before it and to better exercise its jurisdiction. The grant of jurisdiction in s 43 of the Act in all proceedings before the Court is a jurisdiction that is invoked by the commencement of proceedings and the manner of exercise of the jurisdiction is governed by ss 22 and 23 and the common law.
[54] Caboolture Park Shopping Centre Pty Ltd (In liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 230 (Lee, Hill and Cooper JJ).

The jurisdiction of the Federal Court to hear the application for a supplemental costs order ultimately turned on the construction of the provisions that conferred the costs jurisdiction. The Court still considered it necessary to determine whether the fact that the order was sought after final judgment constituted a bar to it being made. It held that there was no such bar:[55]
The principle behind denying the right of a court to vary or alter a judgment regularly given and entered is the need for finality in litigation. The Court has adjudicated upon the facts of the claim brought by a plaintiff against a defendant, found for one side and entered the relevant judgment. Neither the facts nor the law are to be agitated again, save on appeal. But the issues involved where a claim is made against a solicitor for costs by a party to the litigation have not been determined by the judgment which has been entered. They remain yet to be resolved.
[55] Caboolture Park Shopping Centre Pty Ltd (In liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 235-236 (Lee, Hill and Cooper JJ).
The ‘connection’ that this costs claim had with the principal, and finalised, action was, however, supplied by the Act. This case does not supply any extended general principle of ‘sufficient connection’ that would allow an unsuccessful party to pursue, as a necessary incident of the merged claim, an account that is properly understood as a separate cause of action.
The second case Mr Eckert relied upon is Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd.[56] A judge had made final orders permanently restraining Energizer Australia from distributing or making certain representations about batteries. Subsequently, he made further orders that required Energizer Australia to remove certain batteries from display and to place stickers over certain representations on the batteries.
[56] (2008) 246 ALR 113.
The Full Court of the Federal Court, in applying Caboolture, explained that these subsequent orders, supplemental in nature, did not alter the effect of the previous, final orders and were properly to be seen as being incidental to, or in aid of, the enforcement of those orders.[57] They were necessary for the purpose of implementing and giving effect to the principal relief already pronounced.
[57] Remington Products Australia Pty Ltd v Energizer AustraliaPty Ltd (2008) 246 ALR 113 at [14] (Tamberlin, Jacobson and Edmonds JJ).
The Court also gave some attention to the quality of the connection required between a supplemental order sought and the principal relief given. The Court in Caboolture had used the language of necessity. On a review of the authorities, including Pelechowski v Registrar, Court of Appeal (NSW),[58] the Court in Remington concluded that rather than having to be essential to the working out or enforcement of the original, final orders, the touchstone was whether they were reasonably required for, or ‘legally ancillary’ to, the enforcement of the orders.[59] In that case, the actions of Energizer Australia following the pronouncement of final orders, ostensibly in compliance with the final orders, continued the mischief to which those orders had been directed. The supplemental orders were reasonably required to give effect to the orders originally pronounced.[60]
[58] (1999) 198 CLR 435 at [51] (Gaudron, Gummow and Callinan JJ).
[59] Remington Products Australia Pty Ltd v Energizer AustraliaPty Ltd (2008) 246 ALR 113 at [19] (Tamberlin, Jacobson and Edmonds JJ).
[60] Remington Products Australia Pty Ltd v Energizer AustraliaPty Ltd (2008) 246 ALR 113 at [22]-[26] (Tamberlin, Jacobson and Edmonds JJ).
There was some debate at the hearing of the present appeal as to whether Mr Eckert should be allowed to rely on a power of the Court to make a ‘supplemental order’, as opposed to what senior counsel for Mr Roberts contended was a narrower power in 6 SCR 243 to make ‘working out’ orders. The interlocutory application had relied only on 6 SCR 243. It is not necessary to determine the extent of any difference between the two descriptions of power. Mr Eckert’s submission does not withstand scrutiny on any view of the available power.
The undertakings were given, formally, following the pronouncement of orders on the claim and counterclaim. They formed the premise of further interlocutory orders, made on the same date, that facilitated the preparation for and listing of the appeal from Hinton J’s final orders. Indeed, the first undertaking given to this end was:
The appellant will prosecute the appeal herein expeditiously.
Rather than the undertakings that followed being somehow ‘within’ or ‘sufficiently connected to’ the claim brought by Mr Roberts and the counterclaim brought by Mr Eckert, both of which had been determined by final orders, they were merely part of the interlocutory framework for preparation of the appeal, in circumstances where Mr Eckert still did not vacate the land, notwithstanding the pronouncement of final judgment. The terms of the undertaking were explicit:
…such payments being characterised by the appellant as being made pursuant to and in respect of the Agreement alleged by the appellant as set out in the Fourth Defence and Counterclaim in the proceedings, and without prejudice to the right of the respondent to challenge the characterisation of such payments.
In other words, while the undertakings were sufficient to dissuade Mr Roberts from enforcing the judgment pending appeal, the two payments had no greater connection to the subject matter of the litigation than did the three payments prior to final judgment. That is, they were made as a continued assertion of Mr Eckert’s rights as pleaded in the counterclaim. The counterclaim had been dismissed in a final judgment and thereby merged with it. The only significance of the undertakings was to prevent enforcement of that final judgment pending appeal. Insofar as the subsequent application for an account extended to these further two payments, it raised no less separate a cause of action from the matters the subject of final judgment at trial (and then on appeal) than it did in respect of the first three payments.
I would dismiss the appeal insofar as it seeks an account of the five payments during the period of the trespass, including those made pursuant to the undertakings, totalling $210,000. To do so says nothing about Mr Eckert’s ability to pursue a claim in restitution by means of a new action, or any basis of resistance to such a claim that Mr Roberts might then invoke.
The application for an account of remuneration payable to Mr Eckert in respect of his labour and expenses in growing grapes on the land after 5 September 2015
Mr Eckert asserts no separate cause of action in respect of his labour and expenses in growing the grapes on the land during the period of trespass. Rather, he only seeks an allowance, to be set off against the damages payable to Mr Roberts, in respect of which he also, necessarily, seeks an assessment. He anticipates that once account is taken of Mr Roberts’s ‘self-help’, in retaining the proceeds of sale of the 2017 and 2018 vintages, the nett assessment would be in his favour.
I have set out Nicholson J’s treatment of this aspect of the application, above.[61] Mr Eckert’s Defence and Counterclaim did not assert any cause of action seeking compensation for his labour and expenses. To make such a claim would have been inconsistent with his resistance to Mr Roberts’s case in trespass and conversion. Rather, Mr Eckert’s starting point on the interlocutory application was that Hinton J had made an order for an assessment of damages, which order had arisen out of Mr Roberts’s claim. That assessment would have incorporated an account of Mr Eckert’s labour and expenses. The order for an assessment having been made, he submitted that it ‘does not lie within the respondents to unilaterally withdraw jurisdiction at that stage’. Put differently, it was a necessary incident of the orders that rights then flowed in favour of Mr Eckert.
[61] Roberts v Eckert [2020] SASC 27 at [60]-[61].
The difficulty with this submission is illustrated by the language used in its support. The language of a party being unable to ‘withdraw jurisdiction’ is problematic. As explained above, jurisdiction is the authority to decide justiciable controversies. It is comprised of subject matter jurisdiction and personal jurisdiction. It is dependent upon the making of a claim.
A claim or part of a claim can, in the ordinary course, be discontinued at any time. At the time that Nicholson J was seized of this matter, the ability of a plaintiff to do so was governed by 6 SCR 107. In the circumstances, permission of the Court was required.[62] Permission might be refused (or a notice of discontinuance struck out) where a withdrawal amounts to an abuse of process, that is, where it is done for a collateral or improper purpose or for a purpose for which the process was not intended.[63] The onus to establish that lies with the defendant. [64] Permission will otherwise generally be granted on terms that do not disadvantage the defendant. To that end, the Rules made provision for costs consequences on a discontinuance.[65] Similarly, the principle of finality will, in some circumstances, warrant that permission only be given on terms that prevent a plaintiff from litigating the same subject matter at a later time.[66]
[62] Supreme Court Civil Rules 2006 (SA) r 107(3).
[63] Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation [2000] SASC 345; 46 ATR 13 at [13] (Lander J, Williams and Wicks JJ agreeing).
[64] Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation [2000] SASC 345; 46 ATR 13 at [14] (Lander J, Williams and Wicks JJ agreeing).
[65] Supreme Court Civil Rules 2006 (SA) r 107(4).
[66] Pertsinidis v Australian Central Credit UnionLtd (2001) 80 SASR 76 at [95]-[97] (Williams J).
In the action tried before Hinton J, the primary, final relief Mr Roberts sought on the claim and obtained was a declaration that he was entitled to possession of the land. Justice Hinton reserved liberty to apply on the question of the time within which Mr Eckert was to give up possession and made a declaration of Mr Roberts’s entitlement to damages for trespass and conversion. His order that the damages be assessed by a Master was an exercise of power within the jurisdiction enlivened by the claim for damages, in the course of determining that claim. This order was not made on the counterclaim, which Hinton J dismissed.
The Court continued to have jurisdiction over disputes raised by Mr Roberts’s claim but which had not yet been determined. That extended to jurisdiction over the dispute whether it had jurisdiction to determine Mr Eckert’s interlocutory application. The task for Nicholson J was to identify the disputes over which jurisdiction was still retained and the powers of the Court that were consequently available.
To this end, as Nicholson J observed, Mr Eckert had neither pleaded nor proved that Mr Roberts was an accounting party. Neither had he pleaded a claim for labour and expenses.[67] The effect of this was that regardless of whether Hinton J had intended orders 5, 6 and 7 to ‘enure to [Mr Eckert’s] benefit’,[68] as Nicholson J described it, no such benefit was the subject of any claim made by Mr Eckert.
[67] Roberts v Eckert [2020] SASC 27 at [43]-[44], citing Hancock v Rinehart [2015] NSWSC 646 at [338] (Brereton J).
[68] Roberts v Eckert [2020] SASC 27.
Mr Roberts then withdrew the part of his claim that sought an assessment of damages. The effect of Mr Eckert’s submission is, however, that notwithstanding the (purported) withdrawal, and notwithstanding that he had neither pleaded nor proved a claim for labour and expenses, the Court nonetheless had power to determine his post-judgment interlocutory application as an incident of orders 5, 6 and 7. There remained a power to make supplementary orders of the kind contemplated in Caboolture and Remington, or a power to ‘work out’ the orders of Hinton J, as contemplated by 6 SCR 243. The concrete manifestation of this submission was either that Mr Roberts was prohibited from withdrawing this aspect of his claim at this stage, or that even if he was not, for him to do so had no effect on the benefit or right that Mr Eckert derived from the orders.
For the reasons given above, however, Mr Roberts was not precluded from withdrawing the claim. To do so was not an abuse of process; neither did Mr Eckert suggest it to be so. Whether or not that withdrawal might properly have been accompanied by other orders designed to prevent prejudice to Mr Eckert was not in issue.
Jurisdiction is raised on a claim; the question is then whether the Court nonetheless remained seized of a jurisdiction that permitted it to exercise powers on Mr Eckert’s post-judgment interlocutory application for an account. However, absent a claim by Mr Eckert for an account, the only possible power of the Court to order an account was that which might have existed within the Court’s jurisdiction raised by the claim for damages. On the withdrawing of that claim, from which Mr Roberts was not prohibited, the Court was no longer seized of that jurisdiction. That Mr Eckert perceived a benefit to him in the order for an assessment of damages is not to the point. Such a perceived benefit not being the subject of any claim of right, or incidental to any remaining claim of right, no jurisdiction remained within which the Court had power to determine its existence.
Consequently, assuming that an accounting could have proceeded under 6 SCR 243 (or otherwise) had Mr Roberts not withdrawn the claim for an assessment of damages, that withdrawal necessarily put an end to the matter. From the perspective of the Court’s authority to decide disputes, the labour and expenses of Mr Eckert during the period of the trespass assumed a character no different from that of the $210,000 Mr Eckert paid during that period. The withdrawal meant that it was not the subject of, or incidental to, any claim raising the jurisdiction of the Court. The Court was without power to determine whether Mr Eckert had an entitlement to be compensated.
Again, this says nothing about Mr Eckert’s ability to bring a separate claim on account of those matters, or what barriers might now be raised against him if he did.
Conclusion
For these reasons, in my view, Nicholson J was correct to dismiss Mr Eckert’s interlocutory application. Once Mr Roberts had withdrawn the claim for an assessment of damages, on no view did the Court have power to order an account in respect of the sums Mr Eckert paid during the period of trespass, or in respect of Mr Eckert’s labour and expenses on the grapes. I would dismiss the appeal.