Cameron v Qantas Airways Limited

[2008] NSWCA 275

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Cameron v Qantas Airways Limited [2008] NSWCA 275

FILE NUMBER(S):
40161/08

HEARING DATE(S):
14 October 2008

JUDGMENT DATE:
14 October 2008

EX TEMPORE DATE:
14 October 2008

PARTIES:
Rita CAMERON  (Applicant) 
QANTAS AIRWAYS LIMITED  (Respondent)

JUDGMENT OF:
Hodgson JA Macfarlan JA    

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
6941/01

LOWER COURT JUDICIAL OFFICER:
McLoughlin DCJ

LOWER COURT DATE OF DECISION:
1 February 2008 (consent orders)

COUNSEL:
Applicant in person 
J CATSANOS  (Respondent) 

SOLICITORS:
HWL Ebsworth Lawyers  (Respondent)

CATCHWORDS:
JUDGMENT AND ORDERS – Consent order – Application for leave to appeal – Undue influence alleged – Need for separate proceedings. 

LEGISLATION CITED:
District Court Act s 127(2)(e)
Supreme Court Rules Pt 66A

CATEGORY:
Principal judgment

CASES CITED:
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691

TEXTS CITED:

DECISION:
(1)  Application for leave to appeal dismissed with costs. 
(2)  The court refers the applicant to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance for the purpose of giving advice in relation to the bringing of proceedings with a view to setting aside the consent orders.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40161/08

HODGSON JA
MACFARLAN JA

TUESDAY 14 OCTOBER 2008

Rita CAMERON v QANTAS AIRWAYS LIMITED

Judgment – on application for leave to appeal

1. HODGSON JA:  We are dealing here with an application for leave to appeal from a judgment given by consent in the District Court, pursuant to which the applicant obtained a verdict and judgment for a considerable sum of money, with each party paying their own costs.

2. In the grounds stated in her application, the applicant has indicated many respects in which she says she has been very badly treated by the respondent, and has also contended that she agreed to the settlement because it was forced on her:  that is, there seems to be an allegation of undue influence, certainly by her own lawyers and possibly also by the respondent’s lawyers.

3. Section 127(2)(e) of the District Court Act does provide that an appeal to the Supreme Court lies, with leave only, from an order made with the consent of the parties.  However, none of the matters raised by the applicant could justify the setting aside by an appellate court of the consent orders made in this case.  The one matter that might possibly justify setting aside the consent orders is the allegation that the consent was the result of undue influence, or perhaps other unfair conduct or pressure brought to bear on her.  However, if that allegation were to be pressed, it would have to be in proceedings brought before a single judge in a position to hear evidence and make a decision as to whether a claim that the settlement should be set aside is made out.  The need for proceedings of that kind in this sort of case is referred to in the case of Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691.

4. For those reasons, I would propose that the application for leave to appeal be dismissed. 

5. The applicant tells us that she is in contact with a solicitor who says he is able to assist her. However, in case that assistance is not forthcoming to the satisfaction of the applicant, I would propose to make a reference of the applicant to the Registrar under Pt 66A of the Supreme Court Rules.

6. MACFARLAN JA:  I agree with the presiding judge.

7. HODGSON JA:  For those reasons the court makes the following orders:

   (1)Application for leave to appeal dismissed with costs. 

   (2)The court refers the applicant to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance for the purpose of giving advice in relation to the bringing of proceedings with a view to setting aside the consent orders.

oOo

LAST UPDATED:
24 October 2008