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Connor v Veitch

Connor v Veitch

Case [2023] WASCA 186 14 December 2023

Appeal

Jurisdiction

Consent

Admissibility of Evidence

Specific Performance

Civil Litigation & Procedure

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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

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.
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

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.
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.
Ms Veitch's action against the appellant was tried in the District Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Connor v Veitch

Details

AGLC: Connor v Veitch [2023] WASCA 186
Case: [2023] WASCA 186
Decision Date

CaseChat Overview and Summary

In Connor v Veitch, the Court of Appeal of Western Australia was tasked with determining whether to enter and extract orders in accordance with a consent notice dated 30 November 2023, which had been signed by the solicitors of both parties following a mediation. The appellant, Daniel Ignatius Connor, had originally filed an appeal against a District Court judgment that awarded the respondent, Julia Ann Veitch, $4,267.80 in damages for lost opportunity due to the appellant's negligence. The consent notice proposed the dismissal of the appeal and cross-appeal, with no order as to costs and the vacating of existing costs orders. However, shortly after the consent notice was filed, Ms Veitch sought to withdraw her consent, citing stress, confusion, and a sense of being coerced during the mediation.

The legal issues before the court involved whether the court had discretion to refuse to enter and extract orders in accordance with the consent notice, given that it had already been approved by a single judge, and whether Ms Veitch's belated withdrawal of consent could be respected. The court examined the provisions of the Supreme Court (Court of Appeal) Rules 2005 (WA), which permit the making of consent orders to efficiently resolve disputes. The court found that the consent notice was signed by Ms Veitch's solicitor with express actual authority and that there was no evidence of misapprehension, mistake, or acting beyond authority. Furthermore, Ms Veitch did not challenge the lawfulness of the compromise itself, instead appealing to notions of justice and fairness.

The court held that once a party has expressly authorised a compromise, the court lacks the discretion to refuse to enforce it unless there is a legal basis to render the compromise void or voidable. The court emphasised the public policy in favour of encouraging settlement of litigation and the importance of respecting compromises made following mediation. The court concluded that refusing to enter and extract orders in accordance with the consent notice would not be consistent with the due administration of justice and would undermine the effectiveness of mediation as a dispute resolution process. Therefore, the court ordered that the orders be entered and extracted in terms of the consent notice dated 30 November 2023.

Orders