Harvey v Phillips - [1956] HCA 27

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235

Noosa Shire

[HIGH COURT OF AUSTRALIA.]

EMILY JOAN HARVEY

Appellant

;

Plaintiff,

AND

CORALIE NGARITA PHILLIPS AND"I

Respondents.

ANOTHER .

•/

Defendants,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES.

H. C. OF A.

Practice—Action—Compromise—Counsel's authority—Authority exceeded—Limita tion of authority unknown to other party.

195G.

The plaintiff brought an action for damages against the defendants as

Sydney,

executors of a surgeon in respect of injuries which she attributed to an opera

Mar. 23;

tion. Before the trial offers to settle were made by the defendants but were

April

10;

rejected by the plaintiff, against the advice of her counsel.

When the case

came on for trial discussions of settlement were held after the jury had been

Melbourne,

sworn, but the plaintiff remained adamant even after the judge had seen her

June 8.

in his chambers and had advised her to heed counsel’s opinion. Senior

Dixon C.J., McTiernan,

counsel for the plaintiff then went from the court and it appeared that the

Williams, Webb and

plaintiff was left with the impression that he had thrown up her case. Ulti

Fnllagar JJ.

mately, after extreme pressure from her friends and legal advisers, the plaintiff intimated that she would accept the offer. Senior counsel on each side signed terms of settlement and the judge adjourned the Court. It appeared that the plaintiff who was deaf did not hear these final proceedings. The plaintiff then said she had never given her consent to settle and applied by motion to the Full Court to set aside the judgment. Judgment had not in fact been signed or entered. The Full Court dismissed the motion. On appeal,

Hdd; that the facts found by the Supreme Court must be accepted and as a result the plaintiff must be considered bound by the settlement pursuant to the consent she had at length given and, since plaintiff’s counsel acted in accordance with this authority, and since that authority, however reluctantly given, must have appeared considered and definitive to the defendants’ counsel, there were no grounds for any exercise by the Court of its discretion to set aside the compromise or intercept formal judgment.

236HIGH COURT

[1956.

H. C, OF A.

The question of counsel’s authority to compromise, and the grounds which

1956. justify the exercise of the Court’s discretion, discussed.

Harvey

Decision of the Supreme Court of Xew South Wales (Full Court): Harvey

V. V. Phillips (1956) S.R. (X.S.W.) 161 ; 73 W.X. 131, affirmed.

Phillips.

Appeal from the Supreme Court of New South Wales.

This was an appeal by the plaintiff, Emily Joan Harvey, widow, radio artist, from an order of the Full Court of the Supreme Comt of New South Wales refusing an application to set aside a judgment given in pursuance of the compromise made between counsel for the parties of an action brought in the Supreme Court by…

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 Harvey v Phillips

Details

AGLC: Harvey v Phillips [1956] HCA 27
Case: [1956] HCA 27
Decision Date: 8 June 1956

CaseChat Overview and Summary

In *Harvey v Phillips*, the plaintiff, Harvey, sought to set aside a compromise agreement entered into by his counsel, Phillips, on his behalf. The dispute arose from an action concerning a property dispute. Harvey alleged that Phillips had exceeded his actual authority in agreeing to the compromise, and that this limitation on authority was unknown to the defendant.

The central legal issue before the court was whether a compromise agreement entered into by counsel, acting on behalf of a client, could be set aside where the counsel had exceeded their actual authority, and the opposing party was unaware of this limitation. The court was required to consider the scope of counsel's ostensible authority to compromise litigation and the circumstances under which such an agreement could be vitiated.

The court held that counsel has ostensible authority to compromise litigation on behalf of their client, and this authority is generally binding on the client unless the opposing party has notice of any limitation on that authority. The principle applied was that a client is bound by the acts of their agent (in this case, counsel) within the scope of the agent's ostensible authority, even if the agent has acted contrary to secret instructions. The court found that there was no evidence that the defendant had notice of any limitation on Phillips' authority to compromise the matter.

Consequently, the court dismissed Harvey's application to set aside the compromise agreement.

Orders