O'Connor v Trustees of the Christian Brothers

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST

S ECI 2022 01369

BETWEEN:

JOHN O’CONNOR	Plaintiff
v
TRUSTEES OF THE CHRISTIAN BROTHERS	Defendant

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 October 2024
DATE OF RULING:	15 November 2024
CASE MAY BE CITED AS:	O’Connor v Trustees of the Christian Brothers
MEDIUM NEUTRAL CITATION:	[2024] VSC 708

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PRACTICE AND PROCEDURE – Application to set aside a deed pursuant to the Limitation of Actions Act 1958 ss 27QD and 27QE – Hearing by an Associate Judge under Supreme Court (General Civil Procedure) Rules 2015 r 77.05 – Extent of authority of an Associate Judge –Supreme Court Act 1986 ss 17(1A), 25(1)(b) – Supreme Court (General Civil Procedure) Rules 2015 rr 77.01, 77.02 – Whether referral order required.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Brett KC J Gordon	Arnold, Thomas and Becker Lawyers
For the Defendant	S Hay KC C Morshead	Carroll & O’Dea Lawyers

Contents

A.. Introduction

B.. Factual background

C.. Powers of an Associate Judge

D.. Submissions

D.1 The defendant
D.2 The plaintiff

E... Consideration

HER HONOUR:

A Introduction

These reasons answer two questions referred by Ierodiaconou AsJ on 22 October 2024 pursuant to r 77.04(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules). Her Honour was to hear an application by Mr John O’Connor (the plaintiff) on 23 October 2024 to set aside a settlement deed dated 15 January 2018 between the plaintiff and the Trustees of the Christian Brothers (the defendant) (the settlement deed). The two questions, raised by the defendant shortly prior to hearing, are:
(a)Does an Associate Judge have power, without a referral order, to hear an application to set aside a deed pursuant to ss 27QD and 27QE of the Limitation of Actions Act 1958 (Vic) (the Act)?
(b)Does a successful application to set aside a deed pursuant to ss 27QD and 27QE of the Act involve the grant of final or interlocutory relief?
There is no issue that the application to set aside the settlement deed was one that could be heard and determined by an Associate Judge on referral from a Judge under r 77.05 of the Rules. The issue is whether or not such an application, and the relief sought by it, is within the power of an Associate Judge absent a referral order.
For the reasons that follow, I have concluded that the answers to the above questions are:
(a)Yes, in the present circumstances, an Associate Judge does have power to hear an application to set aside a deed absent a referral order; and
(b)An order setting aside a deed under s 27QE of the Act is interlocutory relief.
The substantive hearing proceeded on 23 October 2024 with the parties’ consent on the basis that I would deliver these reasons before Ierodiaconou AsJ determined the matter, and if necessary would make a referral order.

B Factual background

The plaintiff alleges that in 1973, as a student at St Patrick’s College Ballarat, he was physically and sexually abused by Brother Edward Dowlan (Dowlan) and physically abused by other teachers. He claims damages, including exemplary damages in respect of injuries he sustained as a result of the abuse he suffered.[1]
[1]Plaintiff, ‘Amended Statement of Claim’, 30 January 2024.
The defendant pleads a prior claim for damages made by the plaintiff in May 2017 for unlawful sexual assault by Dowlan and physical assault by others in 1973. That claim was settled for a sum of $135,000 including legal costs and the deed of release signed. The defendant pleads reliance on the settlement deed as a legal bar to the present cause of action. Alternatively, the defendant pleads that the previous settlement sum is to be brought to account in respect of any present entitlement.[2]
[2]Defendant, ‘Amended Defence to the Amended Statement of Claim’, 2 September 2024, 9–10 [19]–[29].
Accordingly the plaintiff has made an application pursuant to ss 27QD and 27QE of the Act. Those provisions are:
27QD Application to court to set aside previously settled causes of action
(1) This section applies to an action referred to in section 27QA(2).
(2)    In a proceeding to which this section applies, application may be made to the court for the settlement agreement and any judgment or order giving effect to the settlement of the previously settled cause of action to be set aside.
(3)    A court other than the Supreme Court may not set aside a judgment or an order of another court.
27QE   Court's powers—previously settled causes of action
(1) On an application under section 27QD or otherwise in a proceeding on an action referred to in section 27QA(2), the court, if satisfied that it is just and reasonable to do so—
(a)    may make an order setting aside the settlement agreement and any judgment or order giving effect to the settlement of the previously settled cause of action, whether wholly or in part; and
(b)   may make any other order that it considers appropriate in the circumstances.
(2)    In hearing and determining any action to which this Division applies on a previously settled cause of action, the court, if satisfied that it is just and reasonable to do so—
(a)    when awarding damages in relation to the action, may take into account any consideration (whether monetary or non-monetary) paid, payable or given or to be given under—
(i)     a settlement agreement set aside under this section; or
(ii)   any other agreement related to the settlement that has been set aside under this section; and
(b)   when awarding costs in relation to the action, may take into account any amounts paid or payable as costs under—
(i)     a settlement agreement set aside under this section; or
(ii)   any other agreement related to the settlement that has been set aside under this section.
In this proceeding there is presently no order by a Judge referring the application to set aside the settlement deed for determination by an Associate Judge pursuant to r 77.05 of the Rules. On occasion applications of this nature have been determined by Judges, and on other occasions by Associate Judges with a referral order. As this application is listed without such an order, the question is raised as to the power of an Associate Judge to determine the application in those circumstances.

C Powers of an Associate Judge

Section 75A(1) of the Constitution Act 1975 (Cth) creates the two divisions of this court, namely the Court of Appeal and the Trial Division. Sub-section (4) provides that:
The Trial Division may be constituted by an Associate Judge in the case of a proceeding for which provision is made by an Act or enactment or by rules of court for the Court or the Trial Division to be so constituted.
Relevantly, the Supreme Court Act1986 (Vic) (the SCA) by s 17(1A) provides:
The Trial Division constituted by an Associate Judge may hear and determine all matters, whether civil or criminal, not required by or under this Act or any other Act or the Rules to be heard and determined —
(a)by the Court of Appeal; or
(b)by the Trial Division constituted by a Judge of the Court.
The SCA also provides that the Judges of the Court may make Rules of Court including, at s 25(1)(ah) with respect to:
the conduct of proceedings and parties to proceedings conducted in accordance with the Legal Identity of Defendants (Organisational Child Abuse) Act2018, including, but not limited to—
…
(iv)any other matter or thing necessary or required for the purposes of that Act or arising from proceedings conducted in accordance with that Act;
Order 77 of the Rules also deals with the power and authority of Associate Judges. Relevantly it provides:
77.01 Authority
(1) Subject to this Order, an Associate Judge, in addition to exercising the powers and authorities conferred by any other provision of these Rules, may, in any proceeding to which these Rules apply, give any judgment or make any order, including any judgment or order in the exercise of the inherent jurisdiction of the Court.
(2) Subject to this Order, an Associate Judge, in addition to exercising the powers and authorities conferred by any other provision of these Rules, may hear and determine—
(a)any application and exercise any powers and authorities under the following statutory provisions—
(i) the Administration and Probate Act 1958—
(A) Subdivision 3 of Division 7 of Part I; and
(B)   Part IV, if an order is sought under that Part by consent;
(ii) sections 3, 4, 5 and 6 of the Administrative Law Act 1978;
(iii) sections 126 and 143 of the Associations Incorporation Reform Act 2012;
(iiia) the Civil Procedure Act 2010;
(iiib) section 143 of the Confiscation Act 1997;
(iv) Divisions 1, 1A, 1B and 1C of Part I and section 42E of the Evidence (Miscellaneous Provisions) Act 1958;
(v) section 179 of the Guardianship and Administration Act 2019;
(vi) sections 5, 6, 7 and 13(1) of the Instruments Act 1958;
(vii) section 84 of the Property Law Act 1958 and Part IV of that Act;
(viii) Part 3.2 and Part 3.3 of Chapter 3 of the Relationships Act 2008;
(ix)     section 17(1), 18(3), 19(1), 25(1), 30(1), 33, 35(3), 39(1), 43, 44(1), 45(3), 57(1), 61, 67(1), 71, 72(1), 87(4), 105(4) or 106(1) of the Service and Execution of Process Act 1992 of the Commonwealth;
(x) sections 18, 22, 24, 32, 51A, 58, 59, 60, 76, 77 and 78 of the Supreme Court Act 1986 , and, if otherwise the Associate Judge would exercise jurisdiction under these Rules to give, or the plaintiff would be entitled, under these Rules to enter judgment for the possession of land, section 85 of that Act;
(xi) sections 48(1) and 63A(1)(a) and 63A(3) of the Trustee Act 1958, in respect of trusts entered into in consequence of an order of the Court made in respect of money held or to be held on behalf of a person under a disability;
(xii) section 3.4.33 of the Legal Profession Act 2004 as in force immediately before its repeal, as continued in operation by clause 18 of Schedule 4 to the Legal Profession Uniform Law Application Act 2014;
(xiii) section 134AB(30) and (31) of the Accident Compensation Act 1985;
(xiv) section 344(6) and (7) of the Workplace Injury Rehabilitation and Compensation Act 2013;
(b)an application under any Act for payment or transfer to any person of any money or securities in Court, including any interest;
(c)an application for or relating to the sale of property by auction or private contract, and for payment into court and investment of the purchase money;
(d)an application—
(i)for the appointment of a receiver by way of equitable execution;
(ii)for an injunction ancillary or incidental to equitable execution;
(iii)made under Rule 21.04(1) for judgment for an injunction;
(e)any proceeding for the recovery of land under Order 53;
(f)a trial of an undefended civil proceeding;
(g)any application to stay or dismiss a proceeding commenced by a law practice to recover legal costs where the application is brought on the ground that the proceeding has been commenced in contravention of section 194 of the Legal Profession Uniform Law (Victoria).
77.02 Limitations on authority
(1)    Subject to paragraph (2) and Rules 12.12, 22.08(1)(d), 22.22(c), 32.08(3) and 77.01(2)(b), (c), (d), (e) and (f)—
(a)the trial of a proceeding shall not be held before an Associate Judge; and
(b)an Associate Judge shall not give any judgment or make any order at the trial of a proceeding.
(2)    Except as provided by paragraph (3)(a), (c), (d) or (e), an Associate Judge may at the trial of a proceeding give judgment or make an order by consent of all parties.
(3)    An Associate Judge shall not have authority to hear and determine—
(a)any application which by these Rules or any Act is required to be heard only by a Judge of the Court or the Court of Appeal as the case requires;
…
None of the specifically conferred powers in r 77.01(2) of the Rules are relevant to this application. As such, the relevant power resides in s 17(1A) of the SCA and r 77.01(1) of the Rules unless a limitation applies, as expressed in the SCA or in r 77.02 as set out above.
Keogh J considered the powers of an Associate Judge in Goodenough v State of Victoria.[3] That case involved an application for an extension of time under s 27K of the Act made on summons. It was listed before an Associate Judge. On the morning of the hearing an order was made on the Court’s own motion referring the matter to the Associate Judge pursuant to r 77.05 of the Rules. The plaintiff put in issue the validity of the referral order and, if valid, made an application to set it aside. His Honour concluded that the referral was valid but unnecessary as the source of power of an Associate Judge was s 17(1A) of the SCA and this power:
is limited only to the extent that the SCA and any other Act or the Rules require that a matter be heard and determined by the Court of Appeal or by the Trial Division constituted by a Judge of the Court.
Giving the words used in s 17(1A) their plain and ordinary meaning leads to the conclusion that an Associate Judge has the jurisdiction to hear and determine a matter such as the limitations application unless such an application is otherwise required to be heard by a Judge of the Court.[4]
[3][2016] VSC 733.
[4]Ibid 7 [20]–[21].
His Honour accepted that the widely expressed source of power in s 17(1A) of the SCA takes primacy over the Rules, which are subordinate to the statutory provision. As such, his Honour concluded that an application for an extension of time under the Act was not a trial of a proceeding and so not caught by the prohibition in r 77.02(1) of the Rules as a matter to be heard by a Judge of the Court. Further, the power to hear that application was not otherwise limited by the Rules.[5]
[5]Ibid 8 [24].
In the present case, it was not argued that either the SCA or the Rules specified that the matter be heard by a Judge under r 77.02(3)(a). The question is whether an order made pursuant to s 27QE(1) of the Act is an order made at the trial of a proceeding and is therefore required to be made by a Judge.

D Submissions

D.1 The defendant

The defendant submitted that a decision as to whether or not to set aside a deed of release was not within the power of an Associate Judge conferred by s 17(1A) of the SCA or by ord 77 of the Rules. Rather, it was submitted that a referral from a Judge was required for the following reasons:
(a)Primacy is given to s 17(1A)(1) of the SCA. In accordance with sub-para (1)(b), the matter is one that must be heard by a Judge because, if it succeeds, it involves a final determination of the defendant’s rights. As a determination of rights accorded by the deed, it must be decided at trial and is to be distinguished from an extension of time application, which does not disturb any rights of the defendant and is clearly interlocutory. The defendant relied on Dodoro v Knighting (‘Dodoro’)[6] to distinguish the present application from the application under consideration there.
(b)An order setting aside a deed can only be disturbed by an appeal and therefore still amounts to a trial of that aspect of the proceeding.
(c)The effect of an order setting aside a deed is to disturb the legal rights and obligations of the parties which are contained in that settlement agreement. [7] It is a therefore a final order.
(d)One looks at the substance of the order sought not the form of the application. Whether on an application by summons (as here) or an application made pursuant to r 47.04, the order sought finally determines rights. Whether the orders are made at trial where they must be made by a Judge, or by using a procedure to determine the question before trial, does not change the substance of the orders sought.
(e)Rule 47.04 permits a ‘separate trial’ of questions, and is heard by a Judge, as occurred in WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (‘WCB’).[8] The Rules permit an issue that would ordinarily be an issue for trial to be brought forward and determined separately. It is therefore a trial of that issue.
(f)DZY v Trustees of the Christian Brothers[9] was heard and determined by an Associate Judge upon a referral order under r 77.05.[10]
(g)Applications to set aside a deed are akin to claims where a person has signed an agreement or contract who seeks an order setting aside the agreement arguing that they should not be bound by it because of conduct inducing them to enter into the agreement. An illustration of such a matter is, colloquially, a ‘no transaction’ case under the provisions of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (the ACL). Such an issue is a matter determined at trial.
[6](2004) 10 VR 277 (‘Dodoro’).
[7]Pearce v Corporation of the Society of the Missionaries of the Sacred Heart [2022] VSC 697, 19 [79]–[80] citing Roman Catholic Trusts Corporation for the Diocese of Sale v WCB [2020] VSCA 328 at 32 [97].
[8][2020] VSC 639.
[9][2023] VSC 124.
[10]Trustees of the Christian Brothers v DZY [2024] VSCA 73, 1 [5].

D.2 The plaintiff

Counsel for the plaintiff said that on the referred questions they appeared as contradictor rather than opponent. Counsel gave six reasons why an Associate Judge does have power to hear and determine an application under ss 27QD and 27QE of the Act without a referral order:
(a)Section 17(1A) of the SCA and r 77.01 of the Rules are broad powers with specific limitations, none of which are applicable to the present application.
(b)Dodoro confirmed that an order is interlocutory unless ‘it finally determine[s] the rights of the parties in a principal cause’.[11]
(c)Interlocutory orders can and often do determine rights in very practical ways, including temporary and permanent stays of a proceeding.
(d)Rule 47.04 of the Rules, despite its terminology of ‘separate trial of question’ allows determination of issues separately from the trial of a proceeding.
(e)The provisions of the Act engage the question of whether the Court can determine afresh that which has previously been determined or bargained for. The Court has always had a power to set aside agreements as a prelude to granting substantive relief.
(f)The provisions are not analogous to ACL claims as submitted by the defendant.
[11]Dodoro (n 6) 281 [17] citing Hall v Nominal Defendant (1966) 117 CLR 423 at 443 (Windeyer J) (‘Hall’).

E Consideration

On the first question I have come to the conclusion that an Associate Judge has power to hear an application to set aside a deed as a preliminary question either on application under s 27QD of the Act or on an application under r 47.04 of the Rules. On the second question, I have concluded that an order setting aside a prior deed is an interlocutory order notwithstanding the fact that it disturbs the legal rights and obligations previously agreed to by the parties. These are my reasons.
The power of an Associate Judge conferred by s 17(1A) of the SCA is a broad power, limited by specific exceptions. The only relevant exception is if a matter is required to be heard by a Judge of the Court, by either s 17(1A)(b) or by rr 77.02(1)(a) or (b). It was not suggested that the restrictions in r 77.02 were otherwise applicable. The jurisdiction of an Associate Judge may be broadened by a referral order from a Judge under r 77.05 in a particular matter.
The answer to the first question turns on whether, in deciding whether to set aside a settlement deed, the Court is hearing a trial of the proceeding on that issue. A settlement deed is a binding agreement that does alter the legal rights and obligations as have been agreed, and on occasion may have been given effect by court orders. An order setting aside a deed may be an issue remaining at the trial of a proceeding. This is clear by the wording of s 27QE of the Act which provides at sub-s (1) that the power to set aside a deed can be exercised on an application under s 27QD ‘or otherwise in a proceeding’. There are at least three ways the Court can determine whether to set aside a settlement deed or prior order:
(a)on application by the plaintiff under s 27QD of the Act;
(b)on application by either party for a separate question to be determined under r 47.04 of the Rules; or
(c)at trial.

Before turning to the various procedures by which the issue of setting aside a prior deed might come before the Court, it is necessary to address the second question, namely whether an order made under s 27QE of the Act grants final or interlocutory relief.
The distinction between final and interlocutory orders is well settled in principle but not always easy to identify in practice.
The test is set out in Hall v Nominal Defendant (‘Hall’) by Windeyer J:
In most cases the test that seems to be most satisfactory, and the one that accords most nearly with what has been said on the subject in this Court, is it seems to me to look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principal cause pending between them. It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation.[12]
[12]Hall (n 11) 443 (Windeyer J) with Taylor J agreeing at 439–40, Owen J agreeing at 447 and Barwick CJ dissenting at 430.
The High Court in Hall had to determine whether an order of the Full Court of the Supreme Court of Tasmania, which dismissed an order made extending time for the plaintiff to institute proceedings against the nominal defendant, was an interlocutory or final order. The distinction was of practical relevance as to whether the appeal was of right or required leave. In Hall, Windeyer J rejected the view that that an order is not final unless the ‘decision upon the application out of which it arises, but given in favour of the other party to the action would have determined the matter in dispute’.[13] His Honour said that such a view:
…cannot be regarded as of general application because an order in favour of one party to an application may finally determine the dispute between them whereas an order to the opposite effect would not. For example, an order setting aside a jury’s verdict and ordering a new trial is clearly interlocutory. But an order refusing a new trial is final… A grant of a new trial means that until the new trial be concluded and judgement entered thereupon there is no final judgment in the action, whereas a refusal of a new trial means that final judgment is entered in accordance with the postea at the trial. In that sense it may be correct to say that the question is resolved by looking not at the decision to grant or refuse a new trial but at the consequences of that decision upon the judgment to be entered in the action.[14]
[13]Ibid 443 (Windeyer J); a view also expressed by Brett LJ in Standard Discount Co v La Grange (1877) 3 CPD 67 at 72.
[14]Hall (n 11) 443 (Windeyer J).
In Hall there was no existing dispute between parties and no existing action. The relevant question was whether the plaintiff should be permitted to bring an action. On this basis, despite the practical effect of a refusal, the order granting or refusing leave was interlocutory.
In Dodoro the Court of Appeal considered whether an order refusing leave under s 93 of the Transport Accident Act 1986 (Vic) (the TAA) to commence a claim for damages was final or interlocutory. Interlocutory orders were said to fall into three broad relevant categories for the purpose of determining the character of the order in question. The three categories were:
(a)Where it is theoretically possible to make a fresh application for the same relief;
(b)Where no fresh application can be made but the order does not determine the rights of the parties in a principal cause which lies elsewhere; and
(c)Orders striking out, staying or dismissing a proceeding as frivolous, vexatious or an abuse of process or because it does not disclose a reasonable cause of action, or refusing leave to commence or proceed with such an action.[15]
[15] Dodoro (n 6) [18]–[20].
The application for leave to commence a proceeding was also described in Dodoro as a ‘preliminary step’ and not the principal cause. The observations were made in light of settled law that there is no cause of action until such time as one of the gateways in s 93 of the TAA is passed.[16] On the basis that one looks to the legal and not the practical effect of an order, Callaway JA with whom all members of the Court agreed said that the refusal of leave was an order within the second category above, determining only the rights of the parties as a preliminary step, and therefore interlocutory. His Honour stated:
It matters not, for the purpose of characterising the order as final or interlocutory, that the refusal of leave to bring proceedings may be of great importance to the parties.[17]
[16]Swannell v Farmer [1999] 1 VR 299.
[17]Dodoro (n 6) 284 [24] (Callaway JA) with Winneke P, Charles and Buchanan JJA agreeing and Eames JA dissenting on the question of leave but agreeing on the nature of the order refusing leave.
Section 27QA of the Act provides for a right of action on a previously barred or settled cause of action. Section 27QA(2) provides:
An action may be brought on a previously settled cause of action.
Accordingly, the plaintiff brings this action as of right, not as a matter preliminary to the relevant cause of action. However, the settlement deed signed by him is a defence to the claim unless set aside under s 27QE. In claims under s 27QA, the setting aside of a prior deed is in my view clearly interlocutory as it does not determine the rights of the parties in the principal cause between them. This is because, perhaps in distinction to many other applications to set aside agreements, any order under s 27QE is made in an action permitted by statute notwithstanding the prior settlement. The principal cause is one that contemplates re-opening the respective rights and obligations for further determination.
An order made by the Court under s 27QE of the Act is not quite analogous to the general power that a Court has to set aside an agreement or order obtained by fraud or by unconscionable conduct. In such cases often the conduct of the parties in entering the agreement forms part of the cause of action in the proceeding which must be established at trial. Here while the circumstances in which the deed is entered into are relevant to the application to set aside, they are not matters integral to the cause of action brought under s 27QA. In other circumstances an agreement might be set aside as a prelude to equitable relief or other relief.
The effect of an order under s 27QE revives a previous cause of action to facilitate a further determination of that cause of action where it is just and reasonable to do so. The determination permitted by s 27QA is the further determination of the rights of the parties in the principal cause.
The remaining provision of s 27QE setting out the powers of the Court reinforce my view that any order setting aside a prior settlement, whether in whole or in part, is interlocutory. Sub-section (1) deals with the power to order that a settlement agreement be set aside. That power is exercisable on an application under s 27QD or otherwise in a proceeding. By contrast sub-s (2), set out above at paragraph [7], provides powers exercisable at the hearing and determination of the action. As such, they could not, without a referral order or operation of r 77.02(2), be heard by an Associate Judge.
While it is true that the settlement deed pleaded in the defence, could be an issue determined at trial, s 27QD makes specific provision for such an application to be made prior to trial. The alternative use of r 47.04 for the determination of a preliminary question may also be utilised, as it was in WCB.
Order 47 of the Rules deals with the place and mode of trial. Rule 47.04 provides:
Separate trial of question
The Court may order that—
(a)any question in a proceeding be tried before, at or after the trial of the proceeding, and may state the question or give directions as to the manner in which it shall be stated;
(b)different questions be tried at different times or places or by different modes of trial.
Rule 47.04, although describing a trial of a separate question, provides a flexible rule for dealing with discrete legal or factual disputes either before, at or after trial.[18] A trial is generally a reference to the hearing of the claim for final relief or remedy before a Judge or Judge and jury.
[18]Jacobson v Ross [1995] 1 VR 337.
Rule 47.04 permits the identification of specific questions of law, mixed fact and law, or fact. One use of r 47.04 is to provide for a preliminary question before trial.[19] Other uses have included a change in mode of trial from a cause for determining liability and causation to a jury for determining damages.[20] The caution to be applied in ordering a separate trial of a question or issue in a proceeding by r 47.04 has often been repeated.[21]
[19]Wadley v Ron Finemore Bulk Haulage Pty Ltd [2013] VSC 5.
[20]Birti & Anor v SPI Electricity & Anor [2011] VSC 566, 8 [26].
[21]Murphy v Victoria (2014) 45 VR 119.
Despite the caution, the procedure is capable of being used with great advantage where the issue, and the basis upon which it falls to be decided, can be stated with specific particularity. A hearing on a single issue should only occur where the subject matter is capable of isolation and clear demarcation and where utility, economy and fairness to the parties are beyond question.[22]
[22]Tepko Pty Limited & Ors v Water Board (2001) 206 CLR 1 at [168]–[170] (Kirby and Callinan JJ); see also Dunstan v Simmie & Co Pty Ltd [1978] VR 669 (‘Dunstan’).
Where r 47.04 is used to identify preliminary questions, it follows that the determination of those questions are made in advance of an anticipated trial. It is a critical part of the decision to order a hearing of an issue prior to trial that the outcome will be ‘likely to end the litigation or substantially narrow the issues in dispute, or where there is a clear demarcation between that issues and the other issues in the case’.[23] When recently summarising the principles to apply in ordering a separate question prior to trial Derham AsJ said in Walters v Perton (No 3):[24]
As a general rule, it is inappropriate to order that a preliminary issue be isolated for determination unless the determination of the issue in favour of the plaintiff or the defendant will put an end to the action, or where there is a clear line of demarcation between issues and the determination of one issue in isolation from the other issues in the case is likely to save inconvenience and expense.[25]
[23]Vale v Daumeke [2015] VSC 342, 18 [31(b)] (Derham AsJ).
[24][2019] VSC 733.
[25]Ibid 23 [37(5)].
Despite the need for finality in respect of the particular question, a preliminary question under r 47.04 has been determined to be interlocutory in nature.[26] In Dunstan v Simmie & Co Pty Ltd, referred to by counsel for the plaintiff, the majority held that leave to appeal was required because:
An order made upon the determination of a question or issue ordered to be determined as a preliminary matter prior to trial is an interlocutory and not a final order.[27]
Their Honours did so, not because the practical effect of the order might be to put an end to the proceeding, but because:
The determination of such preliminary issues will not result in judgment in the strict sense, it will result in an order upon which, if the determination puts an end to the action, a party may move for judgment…A judgement, strictly speaking, is a decision obtained in an action. [28]
[26]Dunstan (n 22).
[27]Ibid 669.
[28]Ibid 670 (Young CJ and Jenkinson J); note McInerney J concurred on this issue but dissented as to the answers to the preliminary questions.
Even if the answer to the preliminary question under r 47.07 substantially disposes of the proceeding or renders a trial unnecessary, it is still necessary to grant or refuse final relief in the proceeding, and r 47.05 provides for judgments after determination of preliminary questions. Returning to the observation in Hall, the consequences are those of the ‘final determination of that action’ or ‘whether it puts to an end an existing dispute or action’, bearing in mind the character of the proceeding. Rule 47.05 supports the view that determination of a preliminary question may not itself bring about judgment on the proceeding, even if it has the practical effect of substantially disposing of the dispute.
There may be circumstances where a preliminary question, whatever the answer, finally determines the principal cause between the parties, both in practical effect and in law. In this case, both parties accepted that an order refusing to set aside the settlement deed would be interlocutory as, in practice, a plaintiff would not necessarily be barred from making a further application. The alternative outcome setting aside the deed would also not finally determine any liability to the plaintiff for damages or their quantum, it would only remove a defence raised in opposition to a cause of action on a previously settled claim.
Therefore, in my view, the proceeding listed before Ierodiaconou AsJ on 23 October 2024 was within power and did not require a referral order under r 77.05 of the Rules.

[2024] VSC 708

15 November 2024