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
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.
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.
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.
For those reasons, I would propose that the application for leave to appeal be dismissed.
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.
MACFARLAN JA: I agree with the presiding judge.
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
Details
AGLC
Cameron v Qantas Airways Limited [2008] NSWCA 275
Case
[2008] NSWCA 275
Decision Date
CaseChat Overview and Summary
The applicant, Mr. Cameron, sought leave to appeal against consent orders made in earlier proceedings between himself and Qantas Airways Limited. The core of Mr. Cameron's grievance was an allegation that he had been subjected to undue influence, which led him to agree to the consent orders. The application for leave to appeal was heard by Hodgson JA and Macfarlan JA of the Court of Appeal of New South Wales.
The primary legal issue before the Court of Appeal was whether Mr. Cameron had established a sufficient basis to grant him leave to appeal the consent orders. This required the court to consider whether there was a reasonably arguable case that the consent orders should be set aside due to the alleged undue influence. The court also had to determine the appropriate procedural avenue for Mr. Cameron to pursue his claim of undue influence.
The Court of Appeal reasoned that consent orders, by their nature, represent an agreement between the parties and are generally not subject to appeal. While acknowledging that consent orders can be set aside in certain circumstances, such as fraud or misrepresentation, the court found that the applicant had not demonstrated a sufficiently strong case of undue influence to warrant granting leave to appeal. Furthermore, the court determined that the proper mechanism for challenging consent orders on grounds like undue influence is typically through separate proceedings instituted for that specific purpose, rather than an appeal against the orders themselves.
Consequently, the Court of Appeal dismissed Mr. Cameron's application for leave to appeal with costs. In addition, the court made an order referring the applicant to the Registrar for referral to a barrister or solicitor on the pro bono panel to receive legal assistance and advice concerning the institution of proceedings to set aside the consent orders.
Orders
Orders of the court
(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.