Connor v Veitch

[2023] WASCA 186

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   CONNOR -v- VEITCH [2023] WASCA 186

CORAM:   MITCHELL JA

VAUGHAN JA

HEARD:   14 DECEMBER 2023

DELIVERED          :   14 DECEMBER 2023

PUBLISHED           :   14 DECEMBER 2023

FILE NO/S:   CACV 50 of 2023

BETWEEN:   DANIEL IGNATIUS CONNOR

Appellant

AND

JULIA ANN VEITCH

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   GETHING DCJ

Citation: VEITCH -v- CONNOR [2023] WADC 38

File Number            :   CIV 2118 of 2018

Catchwords:

Appeals - Practice and procedure - Where parties filed consent notice seeking orders to compromise the appeal following mediation - Where respondent subsequently requested court not to enter and extract orders in terms of the consent notice - Consent notice signed by respondent's solicitor with express actual authority - Lawfulness of the compromise not challenged

Legislation:

Nil

Result:

Orders to be entered and extracted in terms of the consent notice dated 30 November 2023

Category:    B

Representation:

Counsel:

Appellant	:	S F Popperwell
Respondent	:	K H M Wong

Solicitors:

Appellant	:	Popperwell & Co
Respondent	:	Soul Legal

Case(s) referred to in decision(s):

Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18; (1999) 161 ALR 79

Broadbent v Medical Board of Queensland [2010] QCA 352

Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235

Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323

Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150

Veitch v Connor [2023] WADC 38

Wintle v Stevedoring Industry Finance Committee [No 3] [2002] VSC 369

REASONS OF THE COURT:

Overview

1. This appeal came before the court on a registrar's notice to attend dated 8 December 2023 to consider whether orders should be entered and extracted in terms of a consent notice dated 30 November 2023.

2. After hearing from the parties the court determined that orders were to be entered and extracted in terms of the consent notice.  We said that we would provide written reasons for those orders.  These are our reasons for determining that orders were to be entered and extracted in terms of the consent notice dated 30 November 2023.

Background

1. The respondent, Ms Veitch, had eye surgery in 2011.  In November 2013 Ms Veitch instructed the appellant solicitor to investigate a claim against the eye surgeon and others.  In December 2013 the appellant, on Ms Veitch's instructions, commenced an action in the District Court against the surgeon and others asserting a claim in negligence in relation to the surgery.  That action was ultimately dismissed as a result of being on the District Court's Inactive Cases List for six continuous months.

2. In June 2018 Ms Veitch commenced a further action against the appellant seeking damages for the lost opportunity to pursue the claims the subject of the original action.

3. Ms Veitch's action against the appellant was tried in the District Court before Gething DCJ over eight days between April 2022 and March 2023.  The primary judge delivered written reasons upholding the action on 31 March 2023.[1]  The primary judge found that as a result of the appellant's negligence Ms Veitch lost the opportunity to pursue the claims the subject of the original action.  However, his Honour considered that the value of the opportunity was minimal.  The primary judge valued Ms Veitch's lost opportunity at $4,267.80 and entered judgment for Ms Veitch against the appellant in that amount.

   [1] Veitch v Connor [2023] WADC 38 (primary reasons).

4. The appellant filed an appeal notice on 19 April 2023.  Ms Veitch gave notice of a cross‑appeal shortly thereafter.  An appellant's case was filed.  While the respondent's answer and the respondent's case in the cross‑appeal were pending orders were made by the Court of Appeal registrar for the parties to attend mediation.  The referral to mediation followed a request by the parties that the appeal be referred to mediation.  An initial mediation occurred on 25 October 2023.  The mediation was then relisted for 30 November 2023.

5. Following the reconvened mediation on 30 November 2023 the parties filed a Form 10 consent notice, duly signed by their respective solicitors, dated 30 November 2023.  The consent notice consented to the following orders being made by the court:

   Upon the terms set out in the Confidential Schedule hereto and, save for the purposes of enforcing said terms with liberty to apply for such purpose, it is ordered that:

   1.The Appeal be dismissed.

   2.The Cross appeal be dismissed.

   3.There be no order as to costs of the appeal and cross appeal and all extant undischarged costs orders be and are hereby vacated.

6. It is not necessary to reproduce the confidential schedule.  It provided, in substance, for one party to pay the other party a certain amount by a certain time.  Insofar as compliance was required by a certain time it was necessary that this court's hearing and determination of the present issue be completed with a degree of urgency.

7. The consent notice was directed to Vaughan JA.  On Friday, 1 December 2023 his Honour approved the making of orders in terms of the consent notice and directed that final orders issue in accordance with the consent notice.  Ordinarily, final orders would have been extracted forthwith.  However, due to an absence in the Court of Appeal office arising from illness, final orders were not extracted immediately.  Instead, early in the morning of Monday, 4 December 2023, the Court of Appeal office received an email from Ms Veitch personally.  Ms Veitch stated:

   I am concerned with my settlement, can you please freeze the settlement as a matter of urgency.  I would like to request another mediation with the Register [sic] to state my concerns.

8. In the circumstances, the court did not proceed to extract and issue final orders in accordance with the consent notice.

9. Later on 4 December 2023 the Court of Appeal registrar wrote to the parties' legal representatives referring to the email received from Ms Veitch.  The parties were asked to confer and inform the court by no later than 4.00 pm on 6 December 2023 whether any party wished to make any application.  On 6 December 2023 the appellant filed a minute of proposed orders seeking that orders be entered and extracted in terms of the consent notice dated 30 November 2023.  The parties' legal representatives then attended a directions hearing on 7 December 2023 at which time the court made programming directions to facilitate it hearing and determining whether orders should be entered and extracted in terms of the consent notice dated 30 November 2023.

The affidavit evidence

1. In an affidavit sworn 8 December 2023 as to why orders should not be entered and extracted in terms of the consent notice, Ms Veitch referred to the fact of the mediation.  She said that the mediation went on for about four hours and that:

   … towards the end of it, I was left stressed, confused, and scared.  I felt that I had no option but to agree to resolve the dispute although I wasn't happy with it.

   I accordingly signed an authority that my lawyer prepared to allow her to agree to sign the consent order.

   I was not happy with the fact that from the sum which was offered, I was required to pay my lawyer [not reproduced] in legal costs.  I had already previous paid [not reproduced] in disbursements in relation to the trial, leaving me with only a small amount.  Further, I had borrowed the amount of [not reproduced] from my brother which I need to repay.

   The offer did not take into account and provide for my legal costs and disbursements, and I felt that was unfair.[2]

   [2] Affidavit of J A Veitch sworn 8 December 2023 pars 7 - 10.

2. Ms Veitch said that she had reflected on the injustice of the settlement.  Ms Veitch said she had suffered and had much trauma including major physical and mental stress.  Ms Veitch referred to her personal injuries, risk of developing further life‑threatening sequela and expected future surgery.  Ms Veitch criticised aspects of the District Court's judgment.  She expressed the hope that the Court of Appeal would look at the matter 'more seriously' and provide her with 'a fair and reasonable award'.[3]

   [3] Affidavit of J A Veitch sworn 8 December 2023 par 16.

The parties' submissions

1. Ms Veitch accepted that the consent notice was signed by her solicitors in accordance with her instructions.  However, Ms Veitch referred to her evidence that in giving instructions to agree to the compromise she was stressed, confused and scared - Ms Veitch felt she had no option but to agree to resolve the appeal.  Ms Veitch sought to emphasise that she had written to the Court of Appeal office seeking to undo the consent notice within two business days after the mediation due to her misgivings about agreeing to the terms of the compromise.

2. Ms Veitch said that it was significant that the orders in the consent notice had not yet been entered and extracted.  On Ms Veitch's behalf it was contended that if the court was to proceed with the making of the orders in the consent notice it would be doing so against the true position held by Ms Veitch.

3. The appellant said that the parties had been through a mediation process.  Following that the parties' legal representatives had executed terms of settlement.  There was no dispute about the authority of Ms Veitch's solicitor to sign the consent notice.

4. The appellant said that, in the circumstances, to the extent that there was a relevant discretion the court should not endorse a litigant arbitrarily withdrawing consent to settle once it had been given.  All the more so the court should be slow to sanction the withdrawal of a party's consent furnished through a court process which has a private and public interest function.

Disposition

1. In her written submissions Ms Veitch referred to the terms of O 43 of the Rules of the Supreme Court 1971 (WA). Order 43 is not the correct rule. The making of consent orders to finalise an appeal is governed by r 60 of the Supreme Court (Court of Appeal) Rules 2005 (WA). This relevantly provides:

   60.  Settling an appeal

   (1)The parties to an appeal may file a Form 10, modified as necessary, stating the final order that the parties consent to being made in the appeal.

   (2)When a consent notice is filed, a registrar must refer it to a single judge who may direct the registrar:

   (a)to issue a final order in accordance with the notice; or

   (b)to notify the parties that the judge will decide the final orders at a hearing.

2. Form 10 is the prescribed form for a consent notice.  Consent notices are provided for more generally in r 45.  The parties may consent to an interim or other order (r 45(1)).  An order in terms of that proposed by the consent notice may be made by a single judge (or, in some instances, a registrar) where it is just to do so (r 45(2) & r 45(3)).

3. The purpose or object of r 45 and r 60 is to save costs and court time by enabling parties to give effect to their agreements efficiently and simply. In providing a convenient procedural mechanism to give final effect to agreements by litigants these rules encourage the compromise of proceedings (or interlocutory issues arising in the course of proceedings). In that respect it is a well‑established rule of public policy that settlement of litigation is to be encouraged in the public interest.

4. It must, however, be remembered that in making a consent order the court exercises judicial power - it performs a public function that operates to bind the parties.[4]  Accordingly, even though the parties may consent to particular orders, the court may decline to make the orders.  For example, the parties, by consent, cannot confer power on the court to make orders which the court lacks power to make.[5]  Other considerations relevant to whether or not consent orders should be made are discussed by Ashley J (as his Honour was then) in Wintle v Stevedoring Industry Finance Committee [No 3].[6]

   [4] Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 [7].

   [5] Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150, 163.

   [6] Wintle v Stevedoring Industry Finance Committee [No 3] [2002] VSC 369 [15] - [23]. See also Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18; (1999) 161 ALR 79 [17] - [18].

5. These kinds of considerations do not militate against the making of orders in the terms proposed by the consent notice.  The orders proposed in the consent notice are self‑evidently within power.  And, on the face of the proposed orders, there is nothing that suggests that the court should decline to make orders in those terms as a matter of discretion (the discretion in this case having relevantly been exercised in any event when Vaughan JA directed the Court of Appeal registrar to issue final orders in accordance with the consent notice).  Counsel for Ms Veitch did not suggest to the contrary.  The basis on which Ms Veitch opposed orders being entered and extracted in terms of the consent notice was simply that she had recanted from the bargain reached following the mediation and no longer wished to end the litigation on the basis of the parties' compromise.

6. It was, in substance, a case where Ms Veitch had reconsidered her position and wished to withdraw her consent to the parties' compromise of the litigation.

7. Sometimes the court will be asked not to make orders in terms of (or not to extract and issue) a proposed order sought by consent on the basis that the party's lawyer exceeded his or her actual or implied authority in agreeing to the compromise.[7]  That is not the position in the present case.  Ms Veitch's own affidavit evidence unequivocally establishes that she authorised her solicitor to agree to the compromise and to sign the consent notice.  The present case is one where Ms Veitch's solicitor acted with express actual authority in signing the consent notice.

   [7] Alternatively, the court may be asked not to enforce the compromise or to set aside the compromise.

8. A similar situation to the present case arose in Harvey v Phillips (a unanimous decision of the High Court of Australia comprised of Dixon CJ, McTiernan, Williams, Webb & Fullagar JJ).[8]  There a claimant brought an action for damages.  Before trial various offers to settle were rejected by the claimant.  Later, after the trial had commenced, following 'extreme pressure' from her counsel supported by her solicitor (and perhaps others), the claimant was induced to accept a particular sum in compromise of her claim.  Senior counsel on each side then signed terms of settlement.  The trial judge authorised the entry of judgment in accordance with the terms of settlement.  Judgment was not in fact signed or entered.  The claimant said that she had never given her consent to settle and applied by motion to the Full Court to set aside the judgment.  It was found, however, that while it was given with a reluctance only too evident, there was in fact consent to the compromise on the part of the claimant.  The compromise followed the receipt of the claimant's express authority to accept the terms of the compromise.

   [8] Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235.

9. The High Court held that, in the circumstances, the court did not have any power (expressed by their Honours as 'a discretion') to intercept the formal entry of judgment or to set aside the compromise.[9]  The High Court stated:

   It is not a case of misapprehension or mistake made by counsel in consenting to an order or settlement.  It is not a case where the assistance of the court is sought or invoked to carry a compromise into effect which otherwise could not be enforced by the party relying upon it.  In such a case the assistance may be refused on grounds not necessarily sufficient to invalidate a simple contract.  It is not a case where a compromise has been agreed upon by counsel acting only in pursuance of his apparent or implied authority from his client but, owing to a mistake or misapprehension, in opposition to his client's instructions or in excess of some limitation that has been expressly placed on his authority.  In such a case, at all events until the judgment or order embodying the compromise has been perfected, an authority exists in the court to refuse to give effect to or act upon the compromise and perhaps to set it aside.[10] (citations omitted)

   [9] Harvey v Phillips (242).

   [10] Harvey v Phillips (242 - 243).

10. Accordingly, three situations were identified by the High Court where the court might in the exercise of its discretion refuse to give effect to or to act on a compromise.  Those situations were where:

    1.The party's legal representative was under a misapprehension or made a mistake in consenting to the order or compromise.

    2.The assistance of the court was required to enforce and carry into effect the compromise.

    3.The party's legal representative had acted outside his or her actual authority, express or implied, in agreeing to the compromise - in other words the legal representative had mere apparent authority and lacked actual authority.

11. The present case does not involve any of those three situations.  It is not contended that Ms Veitch's solicitor was under a misapprehension or made a mistake in signing the consent notice.  The assistance of the court is not required to enforce or carry the compromise into effect.  Rather, as with Harvey v Phillips itself, the present case is one where a judge has directed the registrar to issue a final order in accordance with the consent notice.  All that remains is the extraction and issue of the formal order.  Finally, Ms Veitch's solicitor was expressly authorised to sign the consent notice - this is a case where Ms Veitch's legal representative acted with actual authority.

12. In Harvey v Phillips the High Court went on to state:

    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.[11]

    [11] Harvey v Phillips (243 - 244).

13. In short, where the party's legal representative acts within his or her actual authority in entering into the compromise, the question becomes whether the agreement on which the consent notice is based can be invalidated in accordance with usual contractual or equitable principles.  It is not simply a matter of exercising a discretion to prevent injustice.  The discretion to decline to enforce a compromise does not arise where the party who seeks to impeach the compromise expressly authorised the compromise even if that authority was given after considerable equivocation and under pressure.  The party must instead establish some ground sufficient to render the compromise void or voidable or to entitle the party to equitable or other relief.[12]

    [12] Broadbent v Medical Board of Queensland [2010] QCA 352 [29].

14. Ms Veitch did not seek to challenge the lawfulness of the compromise.  It was not suggested that there was some ground on which the compromise was void or voidable or that Ms Veitch was otherwise entitled on the facts to be relieved from her bargain as a matter of law.  Having reflected on the terms of the settlement, and her dissatisfaction with it, Ms Veitch instead appealed to more general notions of justice and fairness.  That appeal must fail.  The case is relevantly indistinguishable from Harvey v Phillips.  In the circumstances of this case the court does not possess a discretion to intercept extraction and issue of final orders in accordance with the consent notice.  Nor does the court possess a discretion to set aside the compromise provided for in the consent notice.

1. If, contrary to our view, there was a relevant discretion to refuse the extraction and issue of orders in terms of the consent notice, we would not be minded to exercise the discretion in Ms Veitch's favour.

2. Counsel for Ms Veitch emphasised the prejudice that would be suffered by Ms Veitch if orders were extracted and issued.  In that respect Ms Veitch's cross‑appeal will not be determined on its merits.  But the issue is one which must be considered from the appellant's point of view as well as that of Ms Veitch.  Accepting, consistently with Ms Veitch's evidence, that she did so reluctantly and feeling stressed, confused and scared, it remains the position that Ms Veitch authorised her solicitor to agree to the compromise.  The appellant was entitled to consider that the terms of the consent notice were bringing an end to the litigation.  Where, as here, there is no disentitling conduct on the part of Ms Veitch's contractual counterparty - and Ms Veitch herself makes no complaint in that regard - the court should respect the compromise reached by the parties. That is all the more so where it is a compromise entered into following court mediation.  Moreover, were the matter to be resolved solely as an exercise of discretion, the public interest must be considered.  If the court too readily disregards compromises of litigation made following mediation the important object of promoting the settlement of litigation will be hindered.  The interests of justice, including the interests of the due administration of justice, will not be served by the court declining to extract and issue final orders in accordance with a consent notice following mediation simply because one litigant wishes to recant from the compromise having rethought his or her position.

3. Counsel for Ms Veitch disputed the proposition that refusal of the extraction and issue of final orders would be inconsistent with the due administration of justice. Counsel submitted that a favourable exercise of discretion, refusing the extraction and issue of final orders in this case, would not bring the administration of justice into disrepute. Counsel likened the present situation to one where advantage was being taken of a 'cooling off' period. The difficulty with that submission is that r 60 makes no provision for a cooling off period. Nor, in our view, should it be thought that the court will afford a litigant a cooling off period as a matter of course. The uncertainty that will arise as a consequence of a court endorsed de facto cooling off period will tend to impair the effectiveness of mediation as a means of litigants resolving their disputes by compromise.

4. We would, for these reasons, have declined to exercise any discretion to intercept extraction and issue of final orders in accordance with the consent notice if - contrary to our earlier conclusion - there was a relevant discretion to be exercised.

Conclusion and orders

1. For these reasons the court made orders that orders be entered and extracted forthwith in terms of the consent notice dated 30 November 2023.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

EM

Associate to the Honourable Justice Vaughan

14 DECEMBER 2023