Bruno v RJ & SM Fuller Family Partnership
[2020] VSC 133
•20 March 2020 (given ex tempore, revised)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2018 01002
| PAUL JAMES BRUNO | Plaintiff |
| v | |
| R.J. & S.M. FULLER FAMILY PARTNERSHIP | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 March 2020 |
DATE OF RULING: | 20 March 2020 (given ex tempore, revised) |
CASE MAY BE CITED AS: | Bruno v RJ & SM Fuller Family Partnership |
MEDIUM NEUTRAL CITATION: | [2020] VSC 133 |
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CIVIL PROCEDURE – Plaintiff’s application for reinstatement of proceedings – Proceedings settled and consent orders pronounced – Plaintiff claims he was bullied and coerced into settlement by his solicitors and counsel – Plaintiff claims that the defendant acted fraudulently and in breach of a duty of care owed to him – No evidence of illegality, misrepresentation, undue influence on part of defendant – Harvey v Phillips and Anor [1956] 95 CLR 235 – Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) [2018] HCA 12 – O’Keefe v Wyndham City Council [2010] VSC 394 – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | ||
| For the Defendant | Mr R. Stanley | Injury Disputes Practice Lawyers |
TABLE OF CONTENTS
Background.................................................................................................................................... 1
Evidence......................................................................................................................................... 2
Plaintiff’s submissions.................................................................................................................. 2
Defendant’s submissions............................................................................................................. 4
Analysis.......................................................................................................................................... 5
Conclusion.................................................................................................................................... 13
HER HONOUR:
This ruling concerns an application by the plaintiff to reinstate the proceeding and re-open his case. He wishes to proceed to trial. The proceeding was dismissed by consent orders and without adjudication in August 2019. The plaintiff’s application is opposed by the defendant.
Background
On 6 August 2019, the following orders were made by consent:
1.The Defendant pay the Plaintiff’s costs, including any reserved costs, on a standard basis to be taxed in default of agreement.
2.The proceeding is otherwise dismissed.
Following the consent orders, the plaintiff signed a release (‘release’).[1]
[1]Exhibit ‘JS-3’ to the affidavit of Jonathon Sest sworn on 6 March 2020 (‘the Sest affidavit’).
On 7 February 2020, the plaintiff filed an application (‘the summons’). The summons seeks:
– For the deed to be set aside to rerun trial;
– To be compensated accordingly to what I was entitled to under the Act;
–Would like my rights under the Compensation Act as they were taken from me;
– Was bullied into settlement;
– Case sabotaged;
– Misinformed of the settlement terms;
– Breech [sic] of settlement terms;
– Would like to have the duty of care with my claim I deserve.
On 14 February 2020, orders were made listing the application to re-open this day.
Paragraphs A-E of other matters provided the following.
A.By summons filed on 7 February 2020, Mr Bruno seeks to re-open this proceeding. He says that he never truly agreed to settlement of it, did not understand the deed of settlement which he signed, and that the legal costs that were agreed as part of the deed of settlement have not been paid. Mr Bruno says that he has received settlement monies disbursed from his lawyer to him. Mr Bruno says that he did not agree to the consent orders discontinuing the proceeding.
B.In his affidavits filed on 7 February 2020, and in oral submissions today, Mr Bruno made serious allegations against the legal practitioners acting for him at the time he signed a deed of settlement. He has complained to the Office of the Legal Commissioner (NSW) regarding them. This proceeding cannot be a vehicle to explore the allegations of unethical conduct that Mr Bruno makes against his lawyers because it is a personal injuries proceeding between him and RJ & SM Fuller Family Partnership.
C.As a matter of procedural fairness, Mr Bruno will be given an opportunity to make his application to re-open. I will list a date for this application. However, Mr Bruno will need to bear in mind that his former solicitors are not a respondent to this application.
D.The parties agree that the material filed by the defendant will include the deed of settlement with the monetary amounts redacted.
E.The summons filed on 7 February 2020 lists a range of dot point issues. For the reasons above, the issues in the application will be restricted to whether or not this proceeding should be re-opened.
Necessarily, the question of whether the plaintiff can re-open the proceeding involves a question of whether or not to reinstate the proceeding.
Evidence
The plaintiff’s application is supported by three affidavits, two sworn on 7 February 2020, and another sworn on 16 March 2020.
The defendant relies on the affidavit of Jonathon Sest, solicitor, sworn on 6 March 2020 (‘the Sest Affidavit’).
Plaintiff’s submissions
The plaintiff gave a chronology of proceedings in the Magistrates’ Court of Victoria, County Court of Victoria and this Court. These related to his claim for compensation in respect of a workplace injury. He made serious allegations, in the nature of misconduct and negligence, against the lawyers and counsel that he had engaged. By the time of the consent orders, he had engaged his third firm of solicitors, who are based in Sydney. He said he engaged them because a debt collector recommended them. The plaintiff said he owed money to the debt collector. His family live in fear of the debt collector. The plaintiff spoke about his desperate financial situation. The plaintiff said he was bullied into signing an irrevocable authority for his solicitor and did not understand it.
The plaintiff spoke of the pain he experiences and said that there has been a lack of medical treatment. He spoke about surveillance by giant drones and that the drones frighten his family and even his neighbours have referred to the drones. The physical and mental damage is the reason he keeps on fighting the case.
The plaintiff said he clearly wanted to run his trial. He was pushed into a negotiation at the start of the trial. He says his solicitor did not call witnesses as a tactic to persuade him to settle, such as not issuing a subpoena and not calling a doctor on the basis he was overseas. The plaintiff said he later found out the doctor was not overseas.
The plaintiff says that he was bullied into settlement. He was kept in a separate room and not involved in the negotiations with the defendant. This happened over a long period and he was broken. The plaintiff wants to negotiate. He says his lawyers did not put the offer to the defendant that he instructed them to put. The plaintiff says that he had no reason to compromise. The settlement amount was similar to the amount he had earlier rejected at mediation. There was no point in him settling after the mediation for the similar amount.
The plaintiff says he did not know what a consent order was. He did not consent to it. He believes he should be able to run his trial. His legal practitioners consented without his permission. He was not in Court at the time the consent order was made and had no idea anyone went to Court. The plaintiff says he was told about the consent order later. About a week after the consent order, his solicitors emailed him the terms of settlement. He did not want to sign it. They pushed him to sign it for a week and a half. The terms were not read to him by his solicitor. The plaintiff says that his lawyers told him if he did not then it would be legally enforceable by the defendant and he would be liable for an extreme amount of costs.
The plaintiff says that there was actual fraud by the defendant because of their intent to harm him in terms of drafting the terms of the settlement and consent order. The defendant breached its duty of care to him. He says that there was a conflict of interest where he was not looked at with care. The plaintiff says it was known by the defendant, at a directions hearing prior to the trial, that he did not want to mediate and they tried to stop him from running the trial by mediating. There was a conflict of interest by his own lawyers because his rights were not met. The defendant had a benefit in helping his solicitor succeed in settling. The defendant was involved in the settlement. The defendant was involved because its solicitors were corresponding with his lawyers.
The plaintiff says that he has strong evidence that his case should be run to trial and that he would have been better off financially if his case was to run.
Defendant’s submissions
Mr Sest deposes that on 5 August 2019 the parties attended a judicial mediation. The plaintiff attended the mediation with his solicitor and counsel. Although offers to settle the proceeding were exchanged between parties the matter did not resolve on the day. The following day the matter proceeded to trial and settled ‘at the door of the court’. Counsel informed the trial Judge of the settlement and requested consent orders for the defendant to pay the plaintiff’s costs and to otherwise dismiss the proceeding. The trial judge made the orders in accordance with the parties’ request. A release was prepared by the defendant’s solicitors, sent to the plaintiff’s solicitors and subsequently provided to the plaintiff. The plaintiff signed the release, which was witnessed by his domestic partner.
The plaintiff’s affidavit material identifies that he gave instructions, albeit unwillingly, to his counsel, causing the matter to be resolved in the way it was. Further, that he was persuaded into accepting the settlement terms by solicitors or a debt collector.
The defendant says that the evidence shows that there was a compromise made within the actual and apparent authority of the plaintiff through the legal practitioners that he had engaged. The plaintiff had given an authority to his solicitor and counsel. The defendant, quite properly, believed that through the acceptance of their offer, and through consent to the orders and the signing of the release, that the litigation was at an end.
The defendant submits that there is no evidence which can support the proposition that the defendant in any way procured a compromise agreement by fraud, distress, illegality, undue influence or abuse of confidence or the like. The plaintiff’s affidavit material clearly relates to conflict that he had and perceptions he had regarding the conduct of his legal practitioners. This is not a forum to determine whether a solicitor engaged by the plaintiff was improperly engaged, nor a forum to determine whether a debt collector was improperly engaged.
The defendant says that it is a high bar to establish fraud. There is entirely no evidence to suggest that the defendant engaged in fraud or in any other manner which would permit the setting aside of a consent order properly obtained. The sweeping submissions made by the plaintiff about the defendant’s conduct do not suggest the defendant engaged in fraud.
Analysis
I have read and considered the three affidavits deposed by the plaintiff and the Sest affidavit relied upon by the defendant.
I adopt the following principles.[2]
[2]Snowball v Capital Securities XVII Pty Ltd [2018] VSC 588 (J Dixon J) [34]-[35].
The starting position is that a consent order regularly made and entered cannot be recalled. The plaintiffs relied on an exception to this principle derived from Harvey v Phillips, and following authorities, to the effect that:
The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. The rule appears rather from positive statements of the grounds that suffice …
‘[I do not have] the slightest doubt that a consent order can be impeached, not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses in a more formal way than usual … To my mind the only question is whether the agreement on which the consent order was based can be invalidated or not. Of course if that agreement cannot be invalidated the consent order is good’: Huddersfield Banking Co Ltd v Henry Lister & Son Ltd (citations omitted).
Although Harvey was a case in which the orders of the court had not yet been perfected, subsequent decisions accept there are circumstances in which consent orders may be set aside, notwithstanding their perfection.
Courts may have regard to the circumstances surrounding the making of a consent order, particularly in circumstances where there is ambiguity in construing the orders.[3] Here, there is no such ambiguity.
[3]Shout Rocks Cafes Pty Ltd & Anor v City of Port Philip & ors [2018] VSC 120 [14]-[16] (per J Forrest J).
Here, the consent orders dismissing the proceeding were made in open Court and both parties were legally represented. Although the plaintiff says that he was not in Court at the time and did not understand what a consent order was, the fact is that he had engaged legal practitioners to represent him. They had authority to speak on his behalf. The plaintiff agrees that he signed an irrevocable authority[4] but says that he did not understand it.
[4]Exhibit ‘JS-7’ to the Sest affidavit.
This proceeding is a personal injuries one and the plaintiff’s complaints against his legal practitioners should not be determined in it.
The defendant does not have a duty of care to the plaintiff in respect of the manner in which litigation is run.
The issue is whether, in light of the serious allegations that the plaintiff has made against his legal practitioners, and that he says he did not truly consent or understand the terms of settlement, that the proceeding should be reinstated.
In Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed),[5] the High Court considered the equitable powers of a Court to set aside its own perfected judgments (including orders) in the context of solicitor misconduct and held:
The general power to set aside a judgment on the ground of fraud required actual fraud. The “essence of the action [was] fraud”. The general ground of fraud was not diluted to allow, for instance, the judgment to be set aside for misconduct, accident, surprise, or mistake. This point was made pellucidly in 1867 in Patch v Ward. In that case, as Lord Cairns LJ observed, the application was not brought on the basis of either category of the bill of review – either error of law or fresh evidence discovered since the decree. Rather, it was brought upon the basis that the decree was obtained by fraud. His Lordship explained that it was necessary that the fraud be “actual fraud ... the person chargeable with it ... acting in order to take an undue advantage of some other person for the purpose of actually and knowingly defrauding him”. Similarly, Sir John Rolt LJ, after observing that a particular ground of review in cases of foreclosure was inapplicable, remarked of the claim to set aside the order for fraud:
“I think, for the reasons which have been given by my learned brother, that the fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case, and obtaining that decree by that contrivance. Mere constructive fraud not originating in actual contrivance, but consisting of acts tending possibly to deceive or mislead without any such intention or contrivance, would probably not be sufficient – at all events I think could not, after such delay as has occurred in this case, be deemed sufficient – to set aside the order which has been made. What, therefore, the Appellant has to do is to satisfy the Court that the decree was obtained by the positive and actual fraud and contrivance of the party obtaining it.”
[5][2018] HCA 12 (per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) [55].
Pausing there, the plaintiff said that there was an intention by the defendant and his solicitors to harm him, and there was fraud in respect of the drafting of the terms of settlement and consent orders. In respect of the compromise and consent orders, there is no evidence here of actual fraud by the defendant. The plaintiff says he signed the terms of settlement after receiving them from his solicitor and discussing them with his partner. He says he did not understand them and felt pressured to do so by, amongst other factors, a debt collector from whom he had loaned money. He says the debt collector had recommended the solicitor representing him at the time and was pressuring him to sign the terms of settlement so that he could repay his debts. That is a matter between the plaintiff and the debt collector, and possibly his legal practitioner.
In Harvey v Phillips and Anor,[6] the High Court considered whether orders reflecting settlement of a medical negligence matter could be set aside on the basis that the plaintiff said she had never given her consent to settle. As with this case, the plaintiff’s complaint was against the conduct of her legal representatives. The High Court held that:
But in the case of a compromise which is made within the actual as well as apparent authority of counsel a court does not appear to possess a discretion to rescind it or set it aside. The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. The rule appears rather from positive statements of the grounds that suffice (cf. Halsbury’s Laws of England, vol. 26, 2nd ed., pp. 84, 85) ; but there is a dictum of Lindley L.J. which is distinct enough: “...nor have I the slightest doubt that a consent order can be impeached, not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses in a more formal way than usual .... To my mind the only question is whether the agreement on which the consent order was based can be invalidated or not. Of course if that agreement cannot be invalidated the consent order is good ” : Huddersfield Banking Co. Ltd. v. Henry Lister & Son Ltd.
The difficulty in the present case lies in the very unwilling and ephemeral character of the consent which the plaintiff was led to give. But it is enough if she expressed a real intention to consent, even if experience might have suggested that it was an attitude she was not likely to maintain. In the circumstances one might have expected that she would be asked to sign a written authority. But that was not done. However the finding of the Supreme Court, supported as it is by evidence, suffices to establish that she definitely did give her authority, however reluctant it may have been. It is impossible to regard the authority she thus gave as insufficient to support the compromise. The issue is one which must be considered from the defendants’ point of view as well as from hers. When the defendants accepted the compromise requiring them to pay £4,000 they believed that thereby they were putting an end to the litigation. They acted upon the statement made by her counsel that the compromise was made with the authority of the plaintiff. Once it appears that the plaintiff did in fact give an assent which had not been withdrawn up to the moment when the terms of settlement were signed, it can be nothing to the point to say afterwards to the defendants that it was the result of her real desires or her judgment being overborne by her advisers, whatever may have been the degree of moral pressure that she felt.
The appeal must therefore be dismissed.
[6][1956] 95 CLR 235 (per Dixon CJ, McTiernan J, Williams J, Webb J, Fullagar J).
In O’Keefe v Wyndham City Council,[7] there was an application by the plaintiff to set aside consent orders in a personal injury case. Some of the background facts were as follows:
[7][2010] VSC 394 (per Robson J).
The matter came on for hearing on Friday 30 April 2010. Mr Harrison appeared on behalf of the plaintiff’s former solicitors and Mrs O’Keeffe appeared in person. I was informed that Mrs O’Keeffe had terminated her solicitors’ retainer on 28 April 2010. On 29 April 2010, Mrs O’Keeffe had filed a document headed “Application for Orders” in the form of an affidavit. Mrs O’Keeffe says in the document that she deposes:
(a)That the settlement signed by the plaintiff on Friday 23 April 2010 between the parties is withdrawn by the plaintiff.
(b) The matter is to proceed as two weeks of allocated time remains.
(c) The matter is to proceed by judge alone.
Mrs O’Keeffe had also filed an affidavit sworn 28 April 2010. I will set out her evidence at length shortly. In substance, however, she complained that she had agreed to settle under pressure. She swore she did not have an opportunity to clearly think through any of the possible options. She swears that she felt threatened and intimidated by the settlement process and was immediately unhappy with what she felt to be a denial of a full and fair hearing of her case. Mrs O’Keeffe also relied on a supplementary affidavit of 29 April 2010. In that affidavit she said she now appreciated that she needed to ask the court for orders to have her signed settlement dated Friday 23 April 2010 set aside which her legal representative tried to tender on Friday 23 April 2010. She said she was asking the court to allow the matter to proceed and by judge alone. She referred to her earlier affidavit of 28 April 2010 “in which [she] formally tried to withdraw any consent to the settlement”. She swore that Counsel were pressing her to agree “under duress”. I therefore took her application to be an application that the consent order and terms of settlement be set aside and that the matter proceed by judge alone.
...
She says that given the above, she feels at a disadvantage, for she did not have an opportunity to clearly think through any other possible options. She says she felt threatened and intimidated by the settlement process and was immensely unhappy with what she felt to be a denial of a full and fair hearing of her case, which she says was many years in the making.[8]
[8]Ibid at [7] – [8], [48].
Harvey v Phillips and Anor was referred to in O’Keefe. The facts and application of legal principles in O’Keefe are illustrative.
I was referred to two cases. In Bailey v Marinoff the High Court of Australia held that there is no inherent power in a court to deal further with an appeal which has already been dismissed by formal order, in conformity with an order pronounced, where the order was entered before the application to vary it was made. The other case I was referred to is Harris v Caladine where the High Court of Australia dealt with the power of a Family Court to review a consent order made by a Registrar. Brennan J said that a court will only interfere with such an order on the same grounds as it would with any other contract, citing amongst other authorities, the High Court authority of Harvey v Phillips. He said that once an order is perfected it can only be set aside on a fresh action or on appeal.
In Harvey v Phillips [also referred to above], cited by Brennan J, the court, comprising Dixon CJ, McTiernan, Williams, Webb and Fullagar JJ, considered the circumstances where a compromise could be set aside. In that case the plaintiff bought an action for damages against executors of a surgeon in respect of injuries she attributed to an operation. The defendants offered ₤4,000 to settle the claim. The plaintiff’s counsel advised her to settle but the plaintiff rejected his advice. The trial judge saw the parties in chambers. He was told of the offer and advised the plaintiff to seriously consider it. She, nevertheless persisted in her refusal to accept the offer. Senior counsel at one stage left his brief with his solicitor and returned to chambers. Ultimately, after extreme pressure by friends, her solicitor and junior counsel she agreed to accept the sum offered by the defendant. The High Court accepted that she was overborne into agreeing under extreme pressure. They said:
From the foregoing facts it seems clear enough that in spite of her determination not to settle the action she was temporarily overborne by the extreme pressure exerted upon her by her counsel supported by her solicitor and perhaps others and was induced, when she understood that her counsel had refused to conduct her case and when Mr. Darby spoke gently to her, to express what proved a short-lived consent to accept £4,000 by way of compromise. There can be little doubt that the consent which she so expressed was to the knowledge of those present in opposition to her fixed desire and was given with a reluctance only too evident. But so far as the counsel and solicitors of the defendants knew, the plaintiff's counsel had his client's considered and definitive authority to accept the settlement. They were, of course, quite aware that for a long time the plaintiff had refused her consent to compromise the action and that the plaintiff's counsel was endeavouring to obtain her authority and was experiencing difficulty in doing so.
The settlement was announced in court and the judge authorized entry of judgment in accordance with the terms of settlement drawn up. Judgment had not in fact been signed or entered. The plaintiff applied to have the judgment set aside.
The High Court held that the case was not one where the defendant relied on the implied or apparent authority of counsel to settle. The court found that all parties understood that acceptance of the offer depended on the plaintiff’s express authority. The High Court said that if the judgment had been signed then it may be doubted whether it was open to the plaintiff to attack it by making an application to the Full Court in the action to set aside the judgment and the compromise.
As to the circumstances where a settlement agreement could be set aside, the High Court said:
But in the case of a compromise which is made within the actual as well as apparent authority of counsel a court does not appear to possess a discretion to rescind it or set it aside. The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void, or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.
The facts of this case demonstrate the extreme pressure the plaintiff was placed under to settle. Nevertheless, the High Court said that the matter had to be considered from the defendant’s point of view as well as the plaintiff’s. The Court said: [the paragraph cited above is then cited]
…
One can readily see the similarity between this case and that of Mrs O’Keeffe’s if Mrs O’Keeffe’s assertions are accepted. Mrs O’Keeffe had signed an authority to settle on the terms agreed. Thus in the words of the High Court, this was a compromise which was “made within the actual as well as apparent authority of counsel”. Even on her own version of events, there does not appear to be any basis to render the contract of settlement void or voidable or to entitle Mrs O’Keeffe to equitable relief as against the defendant.
There is no suggestion that the defendant procured the compromise agreement by fraud, duress, mistake, illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, undue influence, abuse of confidence or the like. In those circumstances, there appears to be no basis for setting aside the consent order even if Mrs O’Keeffe’s allegations of pressure, duress and intimidation by her own lawyers were made out, which they have not been.
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[The defendant’s counsel] contended that the settlement is binding as between the defendant and the plaintiff. He is undoubtedly right. There is no suggestion that [the plaintiff’s barristers] did not have actual authority to compromise the plaintiff’s claim and in those circumstances the compromise is binding. As indicated above, she signed an express authority for them to settle as they did. In Donellan v Watson, Handley JA of the New South Wales Court of Appeal set out the well recognised general principles applicable to settlements entered into by lawyers on their client’s behalf:
A solicitor retained to conduct litigation ordinarily has both implied and ostensible authority to bind his client to a compromise of those proceedings.
Any instruction from the client which restricts the solicitor's authority to compromise the proceedings will only affect the other party who is on notice of that restriction. The authority of counsel briefed in the cause to bind his client to a compromise of the litigation is governed by the same principles [citations omitted].
These are well understood principles. [The defendant’s counsel] referred me to Order 21.07 and Order 36.07 and the limitations on the Court’s power to set aside an order once made. In this case Mrs O’Keeffe’s affidavit in support of her application was filed in the Supreme Court on 28 April 2010. The order although pronounced on 23 April 2010 was not signed by me until 28 April 2010.[9]
[9]Ibid at [143] – [152].
In O’Keefe, Robson J dismissed the plaintiff’s application to set aside the orders.
The plaintiff submits that O’Keefe is completely different from his situation. He says there is a fine line between lawyers persuading or strongly advising a client and completely taking over their case. He says that his case was completely taken over by his lawyers whereas in the O’Keefe matter it appears that the plaintiff was being persuaded. The plaintiff says that his whole case was sabotaged and there were tactics used to bully him. He refers to adjournments being given on the day of trial and his lawyers using that time to bully him into settlement. Further, the impact on his mental and physical health was significant.
Whilst there are undoubtedly differences in the details here and in O’Keefe, and I make no finding about the plaintiff’s allegations of bullying by his legal practitioners, the legal principles in O’Keefe and Harvey are applicable to this application. The plaintiff’s legal practitioners informed the Court that the proceeding had been settled, and the proceeding was dismissed by consent. It was quite proper for the defendant to rely upon the representations by the legal practitioners for the plaintiff. Issues between the plaintiff and his legal practitioners should not be visited upon the defendant.
There is no evidence of “illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like” by the defendant. The plaintiff submits that the defendant knew of settlement offers made at mediation and afterwards, and that it made no sense that he would later settle when a similar amount of money was being offered. Even so, that does not fall into the category of “illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like”. Nor does the defendant’s legal practitioners negotiating directly with the plaintiff’s legal practitioners. Indeed, where a party is legally represented, it would be improper for a legal practitioner to deal directly with that party.[10] The plaintiff said that because the defendant was corresponding with his lawyers they were involved in his lawyers bullying and pressuring him to settle. I understand that is the conclusion the plaintiff may have reached but there is no evidence to draw any inference that the defendant or its legal practitioners engaged in improper behaviour in relation to the compromise reached and consent orders made.
[10]See, for instance, r 33 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 under the Legal Profession Uniform Law.
There is no evidence that the defendant has failed to comply with the terms of settlement. Indeed, it is common ground that the settlement monies have been paid to the plaintiff. The legal costs portion in cl 8 of the release is yet to be effected. However, there is no issue of non-compliance because cl 8 refers to payment of legal costs once they have been agreed or determined by the Victorian WorkCover Authority, neither of which has occurred. Correspondence is exhibited to the Sest affidavit regarding this.[11]
[11]Exhibit ‘JS-5’, ‘JS-6’ and ‘JS-7’ to the Sest affidavit.
Conclusion
Whilst I am sympathetic to the sad circumstances in which the plaintiff finds himself, being unwell and in a desperate financial situation, the legal principles are clear and binding. The proceeding should not be reinstated. I will make orders dismissing his application.
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