Robertson v Corporation of the City of Port Augusta

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
ROBERTSON & ANOR v CORPORATION OF THE CITY OF PORT AUGUSTA
[2023] SASC 70
Judgment of the Honourable Justice Hughes
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
EQUITY - SETTLEMENTS - RECTIFICATION, REVOCATION, RESCISSION AND CANCELLATION
The applicants brought judicial review proceedings in respect of a number of decisions made by the respondent over a period of years affecting their business and the land on which it was situated. The dispute between the parties led the applicants to withhold rates which in turn led to the respondent taking possession of, and selling, two of the applicants’ properties. The applicants applied for injunctive relief to avoid settlement on the sales (FDN 14). The respondent brought an application for summary judgment in relation to the judicial review proceedings, relying upon a settlement agreement executed by the parties in respect of earlier proceedings between them in the Magistrates Court (FDN 17). The settlement agreement required the applicants to discontinue all proceedings against the respondent and refrain from opposing reliance by the respondent on the agreement in the alternative. The two interlocutory applications (FDN 14 and FDN 17) were listed for hearing together, with the application for summary dismissal heard first. The applicants opposed the application for summary judgment, arguing that the settlement agreement should not be enforced on four grounds: lack of authority, fraud, lack of legal representation and duress.
Held, granting the respondent’s application and dismissing the proceedings:
1. The application was suitable for summary judgment because the Court was not required to look further than the agreement itself to consider the effect of its terms;
2. The applicants failed to establish that they had a reasonable prospect of establishing that the settlement agreement should be set aside for lack of authority, fraud, duress, or lack of legal advice;
3. There is no need for the Court to assess the prospects of the applicants proving the substantive contentions in their judicial review proceeding because the terms of the settlement agreement should be given effect; and
4. The applicants’ application for injunctive relief is not reached because the proceedings are summarily dismissed.
Uniform Civil Rules 2020 (SA) r 144, 199; Local Government Act 1999 (SA), referred to.
Robertson & Anor v Corporation of the City of Port Augusta [2023] SASC 41; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161; Roberts v Gippsland Agricultural and Earth Moving Contracting Co Pty Ltd [1956] VR 555; Seachange Management Pty Ltd & Anor v Pital Business Pty Ltd (2009) VSCA 139; Koutsouradis v Koutsouradis [1983] 2 VR 487; General Credits (Finance) Pty Ltd v Fenton Lake Pty Ltd [1985] 2 Qd R 6; Phillips v Walsh (1990) 20 NSWLR 206; Green v Rozen [1955] 1 WLR 741; McCallum v Country Residences Ltd [1965] 1 WLR 657; E F Phillips and Sons Ltd v Clarke [1970] Ch 322; McLaren v Schuit (1983) 33 SASR 139; Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510; Macteldir Pty Ltd v Dimovski (2005) 226 ALR 773; Davies v Nyland (1974) 10 SASR 76; Chernabaeff v Bellum P/L [1987] SASC 395; Needlework Warehouse Pty Ltd v Chansonette Pty Ltd [2005] FCA 1525; Atkins v iiNet Pty Ltd [2019] SASC 83; Harvey v Phillips (1956) 95 CLR 235; Universe Tankships of Monrovia v International Transport Workers Federation [1983] 1 AC 366; Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, considered.

ROBERTSON & ANOR v CORPORATION OF THE CITY OF PORT AUGUSTA
[2023] SASC 70
Civil: Application

HUGHES J: On 19 April 2023 I summarily dismissed proceedings brought by Mr Robertson and Ms Jones, on the application of the City of Port Augusta Council. These are my reasons for making that order.
The applicants in proceedings CIV-23-003052 are Mr Robertson and Ms Jones. The respondent is the City of Port Augusta. The applicants are unrepresented.
The dispute between the parties is long-standing and relates to the applicants’ attempts to start a nursery business near Port Augusta, the naming of a road, various planning decisions made by the respondent affecting the applicants’ home and business, the applicants’ failure to pay council rates, and the respondent’s legal action to recover rates by the sale of two of the applicants’ properties. The applicants consider that they have at all times been entitled to withhold payment of rates.
The dispute led to proceedings in the Magistrates Court in Corporation of the City of Port Augusta v Robertson & Jones action ELCCI-18-9327. Those proceedings started as a claim for recovery of rates by the respondent. A counter-claim by the applicants claiming damages against the respondent was joined. The respondent withdrew its claim without conceding liability.
The applicants were represented by a legal practitioner at this point in the proceedings. The applicants’ counter-claim alleged negligence and breaches of statutory duties and sought compensation for “business losses as a result of the [Council] changing the name and lot numbering of the road on which the Applicants’ property is located”, and financial losses associated with the Council’s failure to advise the applicants that they would need to provide an accessible toilet at the property, failure of Council members to disclose a conflict of interest when considering the applicants’ development proposal, arising from the fact that the Council had an interest in the Arid Plains Botanic Shop, and business losses associated with the Council’s failure to maintain a road by which the applicants’ business is accessed.
The counter-claim was the subject of an interlocutory decision dated 28 May 2021 by which a Magistrate struck out the counter-claim insofar as it was based on the allegation regarding the business’ address and the accessible toilet advice allegation, but granted leave for amendments to the pleadings to be made in relation to these grounds. The Magistrate granted summary judgment against the applicants in relation to the conflict of interest allegation and road maintenance issue but again granted leave for an alternative pleading on the road maintenance issue to be pleaded.
At some point thereafter, the applicants ceased to be legally represented and attempted to file various amended pleadings. Very close to the trial that was scheduled for 27 March 2023, they learned that their proposed amendments had been refused.
The applicants then commenced the present action in the Supreme Court. They brought the Supreme Court proceedings because they formed the view that they would not be able to achieve all of the orders that they wanted through the counter-claim action in the Magistrates Court. The Supreme Court proceedings seek judicial review of various decisions allegedly made by the respondent’s Chief Executive Officer in relation to road naming and road opening and closing in respect of a road or roads abutting the applicants’ property, and sought urgent injunctive relief to prevent their properties being sold by the Council for non-payment of rates under the provisions of the Local Government Act 1999.
Insofar as they were identified with any precision, many of the impugned decisions were alleged to have occurred several years ago, such that the applicants are required to establish an entitlement to an extension of time. That issue has not been reached.
Soon after filing these proceedings, the applicants made an interlocutory application seeking, in the meantime, to prevent the sale of two of their properties by the respondent. The injunctive relief was refused by Stein J on 22 March 2023.[1]
[1]Robertson & Anor v Corporation of the City of Port Augusta [2023] SASC 41.
This ruling concerns two applications in action CIV-23-003052
After receiving Stein J’s ruling, the applicants filed a further interlocutory application dated 6 April 2023, FDN 14. In that application, the following orders are sought:
1.Void the Certificates of titles currently held by the Respondents under s 184 of the Local Government Act, for 6 Miller Avenue, Port Augusta and Lot 10 DP85779, Port Paterson, and return title to the Applicants, in accordance with section 69(a) and (f) of the Real Property Act 1886 under sections 17 and 29(1) of the Supreme Court Act 1935.
2.Prohibit the pending settlement of the 24 March sale of 6 Miller Avenue, Port Augusta by the Respondent to a third party under section 69(f) of the Real Property Act under sections 17 and 29(1) of the Supreme Court Act 1935.
3.Compel the Respondent to consider the remission of rates on the basis of the Applicants hardship and, in recognisance of the behaviour of the Respondent’s employees and the effect that has had on the financial position of the Applicants in accordance with section 182(1)(b) of the Local Government Act under sections 17 and 29(1) of the Supreme Court Act 1935.
4.Upon resolution of all Judicial Orders, adjourn further proceedings CIV-23-003052 for future mention, to allow the Applicants and Respondent the opportunity to engage in meaningful negotiations in the absence of biased persons and to allow the Applicants to seek legal advice and prepare if necessary to take action against the wrongdoers identified in this application, under sections 26, 27, 28 and 46 of the Supreme Court Act 1935.
5.Any other orders the Courts see fit to make.
It was supported by an affidavit of Mr Robertson dated 5 April 2023 and a document entitled “Summary of Argument” dated 14 April 2023.
It was evident that orders 1 and 2 sought urgent relief as the applicants’ properties had been sold and the applicants were seeking to avoid settlement on the sales occurring.
The respondent filed FDN 17 dated 11 April 2023 which was supported by an affidavit of the respondent’s solicitor, Mr Bubner, affirmed on 11 April 2023.
It sought the following orders:
1.The action is dismissed.
2.Costs of this application in favour of the respondent.
3.Any further orders this honourable Court deems fit.
In short, the respondent contended that the parties have executed a settlement agreement under which the applicants agreed to discontinue these proceedings, but did not do so, and that the respondent has therefore applied for dismissal as foreshadowed in the settlement agreement, enlivening an obligation on the part of the applicants not to oppose the application. The respondent submitted that the Court should find that the settlement agreement has legal effect and give it operation insofar as these particular provisions concerning these proceedings apply.
FDN 17 to be decided first
At a directions hearing on 14 April 2023, I foreshadowed that I was inclined to hear the parties on the respondent’s application for dismissal but also to address, if required, the urgent aspect of the applicants’ application, namely what I understand to be a further application for an injunction preventing the respondent from effecting settlement. In light of the obvious potential consequences upon the purchaser, I directed that the Council supply the Court with the purchaser’s details and that the Registry serve upon the purchaser a copy of the applicants’ application and notice of the following week’s argument so that he or she may appear if he or she wished to make a submission. A purchaser then expressed an interest and participated as an observer by phone in the hearing of the interlocutory applications.
Application for summary dismissal – the law
FDN 17 is an application for summary dismissal of the action brought under Rule 199 of the Uniform Civil Rules 2020 (UCR).
The respondent seeks a summary dismissal of the applicants’ action based on the content of a settlement agreement entered into by the parties on 27 March 2023.
The settlement agreement referred to in FDN 17 is exhibited to Mr Bubner’s affidavit,[2] and is an agreement executed by the parties on the first day of trial in the Magistrates Court proceeding. The affidavit was read into the transcript without objection. Taking into account the applicants’ unrepresented status, it was appropriate for some latitude to be given, as it was, for the applicants to make submissions about the settlement agreement and its legal effect, even though this was not raised when it was tendered.
[2]Affidavit of Alexander Johnathon Bubner filed 11 April 2023, exhibit AJSB1.
The primary purpose of the settlement agreement was evidently to bring a close to the Magistrates Court proceedings on what was scheduled to be the first day of trial. Following execution of the settlement agreement, the trial did not proceed and the Magistrate recorded the fact that the parties had reached a compromise. Each party bore its own costs.
However, the settlement agreement recorded other agreements between the parties. Relevant to the respondent’s application, it contains the following clauses:
H. Roberston & Jones commenced legal proceedings in the Supreme Court of South Australia by way of action number CIV-23-003052 relating to a range of matters including but not limited to the Council’s process of recovering council rates, conflict of interest on the part of the Council’s CEO, and naming and addressing of roads which are located near the Property (Supreme Court Proceedings).
…
L. Without any admission as to liability and/or quantum, Robertson & Jones and Council agree to settle all claims relating to the Business, the Property, the Allegations, the Magistrates Court Proceedings and the Supreme Court Proceedings.
…
THE PARTIES AGREE AS FOLLOWS
2.1 the Magistrates Court Proceedings and the Supreme Court Proceedings will be dismissed by consent orders to that effect with no order as to costs;
2.2 Robertson & Jones will at their own cost do all things necessary to effect the dismissals referenced in the immediately preceding paragraph as soon as practicable within 7 days of execution of this settlement agreement, including the execution of documents in both proceedings consenting to such orders and the Council will do all things necessary to consent to the dismissals on the terms set out in this Settlement Agreement.
…
3. In the event of a failure by Robertson & Jones to comply with clause 2.2, Council may produce this Agreement to either or both of the Supreme Court of South Australia and the Magistrates Court of South Australia in support of an application for dismissal of the claims therein in which case Robertson & Jones agree that they will take no steps to oppose orders for the dismissal of the Magistrates Court Proceedings or the Supreme Court Proceedings.
When the agreement was entered into, the respondent already had a costs order in its favour in respect of two heads of claim in the Magistrates Court proceedings that had been dismissed.[3]
[3]Reasons for Decision of Magistrate Hodder dated 28 May 2021.
Of central importance in the respondent’s application, clause 2.2 of the settlement agreement provides that the applicants will discontinue the judicial review proceedings. Clause 3 provides that in the event that 2.2 is not complied with, the applicants will not oppose orders for the dismissal of the Supreme Court proceedings.
Mr Bubner’s affidavit deposed to an email exchange between the parties which indicates that, in the days following the settlement agreement being executed, the applicants may have intended to discontinue the Supreme Court proceedings. Mr Robertson emailed Mr Bubner and asked what he (Mr Robertson) had to do to effect the discontinuance. However, that did not eventuate. Rather, the applicants filed FDN 14 which, amongst other things, seeks to substantially amend the judicial review proceedings.
The respondent submitted that the applicants did not inform it that they contended that the agreement is invalid, or illegal, or that the applicants seek to have it set aside. In those circumstances, the respondent submitted that the Court should be cautious about entertaining any belated application to set aside as it would require the Court to make an enquiry into allegations in relation to the settlement agreement. To do so, Mr Bullock submitted on behalf of the respondent, would have the effect of undermining the respondent’s considered commercial decision to forgo an outcome in the Magistrates Court in relation to which it was confident that it would have achieved a successful outcome including as to costs.
The respondent submitted that the Court should accept the settlement agreement as a legally binding enforceable document, and should give operation to its content by acceding to the application to dismiss the proceedings in accordance with its terms.
When may summary judgment be entered to give effect to a settlement agreement?
Rule 144 of the UCR states:
144.2—Summary judgment
(1) The Court may, on application by a party, give summary judgment in favour of an applicant—
(a)     on a claim if there is no reasonable basis for defending the claim;
(b)     on a cause of action in a claim if there is no reasonable basis for defending the cause of action; or
(c)     on a separate issue that arises in a claim if there is no reasonable basis for contesting that issue.
(2) The Court may, on application by a party, give summary judgment against an applicant—
(a)     on a claim if there is no reasonable basis for prosecuting the claim;
(b)     on a cause of action in a claim if there is no reasonable basis for prosecuting the cause of action; or
(c)     on a separate issue that arises in a claim if there is no reasonable basis for prosecuting the applicant’s contention on that issue.
(3) An application for summary judgment must be made by filing an interlocutory application and supporting affidavit in accordance with rule 102.1.
In respect of summary judgment, Doyle J in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd said:[4]
59. By way of summary of the approach articulated in Spencer v Commonwealth, it can be said that the power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. However, beyond these very general guidelines, the Court should focus upon the words used in the rules and avoid applying any judicial gloss.
60. Related to the requirement that the Court undertake a “practical” assessment is the notion that the Court should not embark upon a ‘mini trial’ of the claim. Rather, the claim should be assessed in a summary manner, while being cognisant of the incomplete nature of the evidence upon which the Court’s decision must be based. Adversarial argument may assist, and indeed may result in the emergence of a sufficiently clear answer to a complex issue that summary judgment is appropriate. On the other hand, the need for prolonged argument may be indicative of a reasonable basis for the claim.
(footnotes omitted)
[4][2020] SASC 161 (28 August 2020).
In this case, the application for summary dismissal is based on the respondent’s contention that the applicants’ judicial review proceedings have no prospect of success because the settlement agreement would be successfully pleaded by the respondent as an absolute bar to the making of the orders they seek.

In other words, there is no need for the Court to assess the prospects of the applicants proving the assertions within their judicial review proceeding because the terms of the settlement agreement defeat their claim. Further, the respondent submitted that the Court should reach such a conclusion, and could safely do so, by way of a summary judgment.
Mr Bullock, on behalf of the Council, directed the Court to a line of authority relevant to an application for summary dismissal based on a settlement agreement, commencing with Roberts v Gippsland Agricultural and Earth Moving Contracting Co Pty Ltd[5] and summarised in Seachange Management Pty Ltd & Anor v Pital Business Pty Ltd as follows:[6]
[5][1956] VR 555.
[6](2009) VSCA 139 at [33]-[40].
(i) The summary enforcement jurisdiction
33.We start with the scope of the Roberts jurisdiction. As Smith J explained in Roberts,[7] the jurisdiction summarily to enforce the compromise of a proceeding originated in Chancery. According to the practice which there obtained, the court would ordinarily leave a party to proceed by separate bill if the agreement sought to be enforced involved matters extraneous to the original suit. Generally speaking, that was considered to be the case if the agreement dealt with property as to which no question was raised in the suit, or if the agreement provided for things to be done which were beyond the range of what the court could order in the suit.
[7][1956] VLR 555.
34.With the passage of the Judicature Acts, courts exercising both legal and equitable jurisdiction were enabled to deploy the summary jurisdiction more freely, with the result that it ceased to be fatal to the summary enforcement of a compromise that it may have involved some matters extraneous to the proceeding or some parties who were not parties to the proceeding. Consequently, it is no longer necessarily inimical to summary enforcement of a compromise that the original cause of action has been superseded by a new and different agreement, or that the applicant for judgment is seeking to enforce obligations that are new or different from those in issue in the proceeding.
35.But there are still limits to the extent to which obligations provided for in a compromise agreement may differ from those in issue in the proceeding and yet be summarily enforced. There are also limits to the extent to which an agreement providing for extraneous obligations may summarily be enforced, unless the extraneous obligations are in nature self-executing or have already been discharged.[8] Importantly, it is implicit in the following passages of Smith J’s judgment in Roberts that it is not possible – or at least it may be inappropriate – summarily to enforce an obligation which is mutually dependent upon or otherwise affected by another executory obligation:
[8][1956] VLR 555, 567.
Upon that view the agreement of compromise clearly included obligations extraneous to the action; but except for the undertakings of the parties to bear their own costs, and the appellant’s undertaking relating to her counterclaims in the other two actions, those extraneous obligations had all been discharged by performance; and in my view the inclusion of those which had not been so discharged did not afford an answer, under the Judicature Act system, to the claim for summary enforcement. They were obligations of such a nature that they might properly be regarded as being in substance self-executing; and the existence of the clause in the said instrument whereby the appellant undertook to consent to judgment supported the view that to enforce separately the obligation to pay money would be in accordance with justice.
…
… Efron and McLeod were parties to such written agreement. But even if they were, their obligations under it, other than their obligation to bear their own costs, had been discharged by performance, and they had no rights outstanding under it beyond a right to require that the appellant should bear her own costs of the various proceedings and should not take any proceedings in respect of the subject matter of her counterclaims … [9]
36.The same sort of restriction is evident in the observations of Tadgell J in Koutsouradis v Koutsouradis:[10]
As Smith J said:[11] “In deciding whether justice can be done under the summary procedure the Court, of course, needs to consider a variety of matters involving questions of degree. These, I think, must include the extent to which extraneous matters are involved, how substantial are the questions to be determined, to what extent questions of credibility are likely to arise, and whether pleadings and discovery may be desirable.”
The fact that in the present case the agreement of compromise provided for possible action to be taken by the plaintiff's former solicitor pursuant to an undertaking by him is no doubt to be considered in deciding whether the agreement should be summarily enforced in the action. Having taken it into account, I am of opinion that it is a matter of no consequence in this case. It is first to be noticed that the present motion does not seek to enforce anything against the plaintiff's former solicitor. That would not necessarily mean that the rest of the agreement should be summarily enforced. If, being material to the agreement as a whole, the undertaking might be the subject of some future attempt to enforce it against the solicitor, the expedient course could well be not to enforce part only of the agreement now. But that is far from the case. Counsel for the defendants indicated in argument that they waived any right ever to enforce anything against the plaintiff's former solicitor. Even apart from any such concession, and assuming without deciding that there was an enforceable undertaking by the plaintiff's former solicitor, I should think it clear that nothing could now or hereafter be enforced against him by the defendants. They tendered payment of the whole of the settlement moneys to the plaintiff's new solicitors and (as I would assume) are still willing and anxious to pay them to those solicitors pursuant to the judgment now sought. In the light of that I do not see how the defendants could possibly claim to enforce any undertaking by the plaintiff's former solicitor to deal with any part of the settlement moneys in accordance with the undertaking. Any such undertaking has, in order words, become a dead letter. Being a practical irrelevancy to the compromise, it should not in my opinion stand in the way of its enforcement. The plaintiff's second alternative submission therefore fails.[12]
37.In General Credits (Finance) Pty Ltd v Fenton Lake Pty Ltd,[13] McPherson J referred to difficulties in the way of summary enforcement of an agreement involving extraneous matters. He noted that, although some such agreements may be summarily enforced, the court will reject an application for summary enforcement unless clearly satisfied that justice can be done. His Honour adopted the view expressed in Roberts that it is a question of degree requiring consideration of the extent to which extraneous matters are involved, how substantial are the questions of credibility likely to arise and whether pleadings and discovery may become desirable.
38.So too in Phillips v Walsh,[14] McLelland J concluded that summary enforcement is not appropriate in cases involving substantial matters beyond the ambit of the proceedings as originally constituted:
I have considered whether any justification for the plaintiff's application can be found in the authorities which deal with the power of the court to enforce on motion in existing proceedings an agreement compromising those proceedings: see Green v Rozen;[15] Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd;[16] McCallum v Country Residences Ltd;[17] E F Phillips and Sons Ltd v Clarke;[18] McLaren v Schuit;[19] General Credits (Finance) Pty Ltd v Fenton Lake Pty Ltd[20] and Darling Downs Investments Pty Ltd v Ellwood.[21]
These authorities present a confusing picture and since the matter was not dealt with in an argument before me, I do not propose to attempt any extended analysis of them. It is sufficient for present purposes to say that, although there is some arguable support for the proposition (although it is far from clear) that the Court might on motion in the present proceedings enforce a particular term of the agreement between the parties noted in the order of 16 June 1989 which came within the ambit of the proceedings as originally constituted, it would not be proper to do so where substantial matters are involved beyond the ambit of the proceedings as originally constituted, or where, in the interests of justice, disposition of the matter on summary application is inappropriate.[22]
39.Counsel for the appellants also referred to the decision of Allsop J in Macteldir Pty Ltd v Dimovski,[23] which was principally concerned with the scope of federal jurisdiction. Its relevance for present purposes is that it followed after a decision of the Full Court of the Federal Court that undertakings to desist from infringement of copyright, given to the court pursuant to an agreement for the compromise of a proceeding for infringement of copyright, fell within the categories of cases said by Smith J in Roberts to require a separate proceeding for their enforcement.
40.In summary, therefore, the net effect of the authorities to this point seems to be that, although the power summarily to enforce a compromise is discretionary and is wider now than once was the case, it is not to be invoked unless the court is ‘clearly satisfied that justice can be done’; and whether justice can be done is a question of degree. Consistently with the equitable origins of the power, one must weigh among other competing considerations the extent to which enforcement would involve extraneous matters, how substantial the questions to be determined as a precursor to enforcement may be, and procedural considerations like the desirability of pleadings and discovery and substantial cross-examination.
[9][1956] VLR 555, 567.
[10][1983] 2 VR 487, 495.
[11][1956] VLR 555, 564.
[12]Citations adapted; emphasis added.
[13][1985] 2 Qd R 6.
[14](1990) 20 NSWLR 206.
[15][1955] 1 WLR 741; [1955] 2 All ER 797.
[16][1956] VLR 555; [1957] ALR 71.
[17][1965] 1 WLR 657; [1965] 2 All ER 264.
[18][1970] Ch 322.
[19](1983) 33 SASR 139.
[20][1985] 2 Qd R6.
[21](1988) 18 FCR 510; 80 ALR 203.
[22](1990) 20 NSWLR 206, 210 (citations added as footnotes).
[23](2005) 226 ALR 773.
The respondent submitted that, consistent with the reasoning set out above, the Court’s power to summarily enforce a compromise of an action is discretionary and should not be invoked unless the Court is clearly satisfied that justice can be done. One relevant factor is the extent to which the application entails determination of matters extraneous to the proceedings. Mr Bullock submitted that this was not the case in relation to the Council’s application. He submitted that the enforcement required the Court to go no further than the settlement agreement itself.
He submitted that there was no danger in a summary determination of the application. Its substantive determination would entail little more than the production of the affidavit that had been filed, containing the settlement agreement. The settlement agreement provides for the applicants to discontinue these judicial review proceedings or to refrain from opposing an application for dismissal of them. The Court need go no further than the settlement agreement and the court record to determine the respondent’s application.
Consistent with that submission, many of the authorities that canvas the enforcement of terms extraneous to the compromised proceedings are of limited relevance to this matter. The South Australian cases of Davies v Nyland,[24] McLaren v Schuit[25] and Chernabaeff v Bellum P/L[26] consider circumstances in which a party who has compromised a proceeding seeks to continue to have it adjudicated, leading to consideration of whether the compromise could be said to operate as a bar to contesting the action by virtue of the concessions the compromise implies.
[24](1974) 10 SASR 76 at 89-90 (Wells J).
[25](1983) 33 SASR 139 (White J).
[26][1987] SASC 395 (Millhouse J).
The enforcement of the settlement agreement, or part thereof, does not need to be undertaken in a separate proceeding but be sought within the proceeding that is compromised.[27] Consistent with this, the enforcement can be sought within another action referred to in the settlement agreement, as has occurred here.
[27]Needlework Warehouse Pty Ltd v Chansonette Pty Ltd [2005] FCA 1525 (Lindgren J).
The applicants’ response to FDN 17
For the most part, it was Mr Robertson who spoke on behalf of the applicants.
The applicants opposed the application for summary dismissal. They submitted that the settlement agreement should not be enforced. They relied on the following grounds: lack of authority, fraud, duress, and a lack of legal advice.
Lack of authority
The settlement agreement was signed by Ms Heaft. Evidently, the applicants believed that she was an employee of the Council. However, upon learning that she was not, Mr Robertson asserted that Ms Heaft signed the agreement on the instructions of the Chief Executive Officer. He also asserted that the actions in selling the properties were being progressed on the instructions of the Chief Executive Officer, not the elected members.
The applicants contended that the Council, being the elected Members, did not authorise or instruct on the legal proceedings. Therefore, the settlement agreement is not legally binding.
A further contention was that the Chief Executive Officer of the Council had been instructing the lawyers and making the decisions about the proceedings, and he should not have done so because he has a conflict of interest that was not disclosed to the Council.
The conflict of interest arose from the fact that the applicants had complained about the Chief Executive Officer and he had a personal interest in ending the litigation. The complaints concerned the applicants’ allegations that the Chief Executive Officer had falsified the public road register. The applicants believed that the elected members were never informed about the allegations or made a decision about them.
In relation to authority, Mr Bullock informed the Court that Wallmans Lawyers were acting on the instructions of the Local Government Mutual Liability Scheme of which the Council is a member. The scheme had rights under subrogation from the Council in respect of the proceedings. The person who executed the settlement agreement was an employee of the scheme. In addition to denying the allegations, the respondent submitted that there was no evidence upon which the Court could find that there was a lack of authority to enter into the settlement agreement.
Mr Robertson submitted that, irrespective of whether Ms Heaft was an employee of the scheme or the Council, she received instructions from the Chief Executive Officer and not the elected members, and the lack of authority argument still had force.
When examined, the applicants’ arguments as to authority were in fact an extension of their second argument regarding fraud. The applicants did not assert that Ms Heaft was not authorised under the mutual liability scheme to settle the proceedings in the sense of a lack of a proper delegation. Or, if that allegation was made, nothing was advanced to support that proposition. The attack was on the truth of the instructions given by the Chief Executive Officer as to the factual circumstances underlying the dispute.
However, even if the instructions entailed false statements (and the respondent denied this and the applicants did not establish it), there was no proper attack on authority of Ms Heaft, exercising rights under the mutual liability scheme, to settle the disputes between the parties. Mr Robertson also claimed that the insurer did not have standing because the Chief Executive Officer had “submitted false documents”. There was simply nothing advanced that would lead the Court to conclude that the applicants had an arguable case in that regard.
Fraud
The applicants’ contention was that after entering into the settlement agreement, they reached the view that the settlement agreement was “fraudulent”.
The fraud arose, they argued, by virtue of the actions of the respondent’s Chief Executive Officer. Those actions included decisions and communications regarding the naming of a road adjoining the applicants’ property, the subsequent decisions and communications about the road opening and closing, and about the applicants’ complaints. As a result of the wrongful decisions and communications about the road-naming, the Chief Executive Officer made further wrongful decisions and communications to ‘cover up’ the earlier decisions, including failing to bring to the elected councillors’ attention the actions he had taken and the complaints made about the process by the applicants, and by instructing on and controlling the rates recovery proceedings and all subsequent legal proceedings between the parties.
It was the applicants’ contention that the Chief Executive Officer denied the Council – referring to the body of elected members – access to information regarding these matters, which affected the legality of the decisions he made. It was not clear whether the applicants submitted that this illegality arose from a failure to properly delegate, or the failure of the Chief Executive Officer to declare a conflict which then made it inappropriate for him to act as delegate of the collective body, or both.
The applicants contended that the Chief Executive Officer instructed the legal representatives and the person who executed the agreement on behalf of the Council and his fraud transferred to their actions.
It can be seen that the applicant’s contention about fraud is merely an extension of one aspect of the substantive dispute. The applicants were advancing this submission well before the settlement agreement was executed. Mr Robertson informed the Court that he had put the Council’s lawyers on notice of the alleged fraud prior to the settlement.
Nevertheless, Mr Robertson conceded that at the time they signed the agreement, he and Ms Jones did not think it was unlawful. However, after executing the settlement agreement, the Council’s lawyers requested that they give up possession of the properties. Mr Robertson said, “that caused me to go and look deeper and I had a look more further at the fraud side of it and I think now I can prove it.” At this point in the hearing, Ms Jones asked to speak and made the following submission:
“It wasn’t until I got home and started to read and research settlement agreements that I found out that, well, fraud can’t be covered up with a settlement agreement. So we would like to present our evidence of the fraud so that you can see where we’re coming from and understand that we’re not being malicious, we’re not being vindictive, we’re not bad people, you know, we have excellent credit ratings, we’re good people, we’re good business people and we are very community-minded, we just want to be treated fairly.”
The applicants’ position as to fraud, it seemed, was that they acquired a new understanding that the fraud that they maintained underpinned their claim in the Magistrates Court undermined the legality of the settlement agreement. They formed the view that the settlement was brought about by an inability to prove a fraud that could subsequently be established to have occurred. This led them to the conclusion that the agreement could be set aside, and although they made no application for this to occur, they asked that the Court deny the respondent’s application to dismiss the judicial review proceedings on that basis.

I reject the contention that the applicants have established that they have an arguable case that they should succeed in an application to set aside the settlement agreement by virtue of fraud, or to resist the respondent’s application for summary judgment on that basis. Firstly, the applicants were on notice of the alleged fraud well before executing the settlement agreement. In fact, the fraud was at the heart of their claims against the respondent. They could not be said to have discovered it after the settlement agreement was entered into. Secondly, they presented no case as to why they are better positioned to prove the alleged fraud after the settlement agreement, than they were when they agreed to give up the allegations in exchange for a finalising of the Magistrates Court proceedings with no adverse costs order. Having read the various affidavits provided by the applicants in support of their judicial review, there is nothing that can be identified that evidence has become available since the settlement agreement was executed, that might assist them to establish that the alleged fraud should now be relied upon by this Court to consider an application to set aside the agreement, or to decline to enforce it.
Duress
Mr Robertson used the word “duress” on a number of occasions when describing the reasons he was advancing in support of the contention that the Court should not grant the respondent’s application.
“Duress” has a particular meaning in the context of the validity of contractual arrangements. In Atkins v iiNet Pty Ltd,[28] this Court considered an appeal from a decision of a Magistrate who refused to set aside a settlement agreement. In that case, the applicant issued proceedings against the respondent for failing to supply certain services, and during a mediation process the parties entered into a settlement agreement. That agreement included a term by which “neither party is to take out any further litigation regarding this matter”. The respondent paid the applicant a sum of money pursuant to the agreement. The applicant subsequently applied to the Magistrates Court for an order striking out or setting aside the settlement agreement. That was refused in circumstances similar to those described by Mr Robertson and Ms Jones: a feeling of wanting to conclude the proceedings which was later regretted. The refusal was upheld on appeal.
[28][2019] SASC 83 (24 May 2019).
The Court said:
22.The High Court in Harvey v Phillips said that a settlement order is similar to a contract which cannot be set aside unless there are grounds on which it can be said to be void for example illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake or undue influence. In other words, a party to a settlement agreement cannot ask the Court to set aside the agreement because they have had a change of mind or because of they are of the view that they did not get a good enough deal.
…
25.In Universe Tankships Inc of Monrovia v International Transport Workers Federation, Lord Scarman explained that there are two elements of duress: “(1) pressure amounting to compulsion of the will of the victim; and (2) the illegitimacy of the pressure exerted”. The development of the law of duress encompasses threatened or actual unlawful conduct:
The vagueness inherent in the terms “economic duress” and “illegitimate pressure” can be avoided by treating the concept of “duress” as limited to threatened or actual unlawful conduct. The threat or conduct in question need not be directed to the person or property of the victim, narrowly identified, but can be to the legitimate commercial and financial interests of the party. Secondly, if the conduct or threat is not unlawful, the resulting agreement may nevertheless be set aside where the weaker party establishes undue influence (actual or presumptive) or unconscionable conduct based on an unconscientious taking advantage of his or her special disability or special disadvantage, in the sense identified in Commercial Bank of Australia Ltd v Amadio.
It will suffice to consider whether any pressure was exerted on Mr Atkins illegitimately.
26.Mediations can be stressful encounters, especially for unrepresented litigants, but that is not sufficient to amount to duress. Any time pressure which Mr Atkins may have perceived is also not enough to amount to duress at law.
Mr Robertson advised the Court he and his wife were under enormous strain on the day of the Magistrates Court trial when they entered into the agreement. This strain arose from being unrepresented, having significant financial implications flow from a potential loss at trial, the stress of the business that they intended to build having failed, and the impending sale of their two properties including their principal place of residence. Mr Robertson was in “a peculiar frame of mind”.
They experienced additional stress because they realised on the day of trial that their proposed amendments to their Magistrates Court proceedings had not been accepted. They concluded that if they signed the agreement, it would “appease the Chief Executive Officer” and he would “back off” on selling their principal place of residence.
They did not assert that the respondent’s lawyers had acted improperly on the day of the trial. He said that there was “undue influence” by the Chief Executive Officer, but not by the lawyers. The Chief Executive Officer was not present at the trial.
Mr Robertson later said that he signed the document because they wanted to get it over with. Mr Robertson said:
“… we went out at lunch to get legal advice on how to go ahead with the Magistrates Court or that because I didn’t know what to say to the judge other than that. When we came back from there, we told Mr Bullock and Mr Bubner that we were going to go in and accept whatever the judge was going to do with us and I’m afraid that I got confused when I went back in there and, while I was confused, Mr Bullock and Mr Bubner gave me an out and said ‘How about we take some time and go back and see if we can write the settlement?’, and we just wanted to get out of there.”
I accept that the occasion was extremely stressful for the applicants. They knew that much of their claim had been struck out and that the proposed amendments to their pleadings had not been accepted, and they were facing the prospect of a four-day trial in which they bore the onus of proving a factually-complex set of circumstances over many years and bringing those factual circumstances within recognised legal principles. They had been informed that if they lost the case, there may be a costs order against them. According to Mr Robertson, they already had a $100,000 debt in legal fees.
However, nothing that they contended established duress in the sense that is required to set aside a settlement agreement.
Lack of legal advice
Mr Robertson also contended that they were not legally represented and that he had made mistakes in trying to run the matters as if he were legally trained. The Magistrate delayed the commencement of the trial to allow the applicants to seek advice. This was directed at helping them to run the trial rather than to settle it. He said that the proceedings were complex and that no one was willing to help. They returned to Court and attempted to commence the trial, but quickly floundered.
Mr Robertson said that it was in that context that they agreed to consider a settlement proposal that afternoon. He said that they did not understand the agreement. However, he also submitted that it was a proposal that was the same or similar to one that they had been offered the previous September to settle the Magistrates Court proceedings when they were represented by a lawyer.
I am not satisfied that they have an arguable case that the fact that they lacked legal representation is a basis on which they should not be required to comply with the settlement agreement. It was similar to one that they had seen before. They knew that the Magistrate was amenable to an adjournment to secure legal advice; it had happened earlier that day. In any event, they considered that they might secure several benefits from the agreement; they would avoid the trial and the potential adverse costs order if they lost, and they might be able to negotiate on the sale of their property. Most importantly, they initially started to take steps towards discontinuing the judicial review proceedings in accordance with the agreement, though they ultimately did not do so.
Conclusion
The applicants’ circumstances excite some sympathy. They wanted to start a business but it has not thrived. They perceive the respondent, and in particular, its Chief Executive Officer, to be responsible. They believed that they were entitled to withhold rates during their dispute. They executed a settlement agreement on the first day of a trial in the Magistrates Court. The agreement included an undertaking on their part to bring to an end, or not to resist the ending of, these proceedings. I have not been satisfied that these proceedings should be allowed to continue. The respondent’s application is justified.
The effect of the grant of the respondent’s application, including an order as to costs, was that the proceedings are finalised. The applicants’ application FDN 14 which sought an injunction against settlement was therefore not reached. Therefore, it was not necessary to consider whether the purchaser of one of the properties from the Council, who was an observer during the proceedings, should be heard.

[2023] SASC 70

19 April 2023