Shields, I.J.M. v Australia & New Zealand Banking Group Ltd

[1994] FCA 431

JUDGMENT No. .-..... .... 431 9+ -J,.,,-,,

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN r

Appellants

AND a

-

Reepondent

CORAnr Neaves, Burchett and Hill JJ.
PLACE: Sydney

DATE : 3 Harch 1994

THE the appeal be diemieeed with coete.

m	8	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN :

Appellants

AND :

Gwusawm

Respondent

CORAn: Neaves, Burchett and Hill JJ.
PLACE: Sydney

DATE : 3 March 1994

In an action brought by the appellants on 21 September

1992 against the reepondent, in reliance upon ss. 52, 52A and

53 of the -8	Act 1974, the reepondent on 28
October 1992 filed an amended cross-claim seeking judgment for	$110,277.82 plus interest under a mortgage, and an order for
possession of the land to which the mortgage related. It is unnecessary to recount all the vicissitudes of the pleadings. However, on 22 December 1992, Morling J. granted the respondent leave to enter judgment upon the amended cross- claim, while noting an undertaking that execution would not be insued before 8 February 1993. The undertaking was to enable the claims under the m d e P a c e s Act to proceed, without ubarrassment, to a hearing on that day.
On 8 February 1993, the claims did not proceed. Inmtead, counmel for the appellants handed up to Horling J. short minutes of order. to be made by consent. The mhort minute.
ware migned by counsel for the appellants and by counsel for the respondent, and were dated 8 February 1993. The appellant. were both in Court. By the contemplated orderm, their amended application was to be dismisbed with costs, and judgment was to be entered for the respondent (am cross-

(	claimant) for $139,829.37, and for possession of the land in question; but orders were also to be made giving the appellants, upon terms, a stay of six months in respect of the judgment against them. Morling J. made orders accordingly.
The matter did not rest there. On 4 June 1993 (following abortive attemptm, made on 3 and 17 May 1993, to institute an application), the appellantm filed a notice of motion to met aside the orders made by Horling J. on 8 February 1993, inter alia, on the ground that they had not both consented to the
(-
Wilcox J. on 20 July, 1993, when it was dismissed with costs.
mettlement of their case, and for further relief including "Damage.: Eight Million Dollars". This motion came before
From that order, the appellants bring the prement appeal.

Although the appeal came before us in this way, the

appellant.' mupplementary notice of appeal purports to appeal also from the orders made by Morling J. on 22 December 1992 and 8 February 1993. Time for appealing against those orders, quite apart from any other difficulties, has long expired. If applications for extensions of time were taken out, we would not be prepared to extend time. The appellantet real caee ie for the setting aside of the eettlement reached on 8 February 1993 and of the ordera made pureuant to it, which they sought to achieve by the motion before Wilcox J. It ie to their appeal against the diemissal of that motion that we turn.

Wilcox J. heard evidence from both the appellants, who were cross-examined. They declined to call evidence from the	c
solicitor and couneel instructed by them on and prior to 8 February 1993, and objected to the respondent calling them, on the ground of legal profeeeional privilege. Ae the evidence was not, in the event, adduced, it is unneceeeary to say anything about the ieeue of waiver of the privilege, which waa not argued before us. The decisive queetion wae the reality or otheruiae of the appellants' aeeent to the eettlement announced in Court on 8 February 1993. That day wan a Monday.
On the preceding Friday, Ur Shields had conferred with	(
counael, and diecusaed settlement. Afterwards, he told hie
wife he had agreed to a comprorniee. She. objected. Then, on	the Monday morning, there was a further conference with
counsel and solicitor, when both Mr and Ure Shielde were shown a copy of the proposed ehort minutes of ordere. On her own evidence, s Shielde read the document and asked whether there was anything elee which could be done, but on being told there was not, she said no more. At the time, ehe accepted the advice ehe wae given, however reluctantly. Both appellants then attended Court with their counsel and molicitor, and observed the making of the orders.
Wilcox J. expressly rejected evidence from Mr Shields that he did not understand the settlement, and that he needed more time to do so. His Honour was conecious of Mr Shields's diffic-llties in reading, caused by lack of education, but he regarded him as intelligent, a view with which we agree.

Finally, Wilcox J. said:

"I have to conclude that this is not a case where

judgment was entered without consent."

He had had an opportunity to observe the witnesses, and we do not think we can disagree with that finding. On the material in the appeal book, we could only reach the same conclusion.

Since the matter was settled, there can be no point in dimcusming the questions it would have raised had it proceeded	to a full hearing. Nor, in the circumstances, is it necessary
to consider the authorities on which the respondent relied at the hearing of the appeal.

The appeal is dismissed with costs.

I certify that this and the preceding three (3)

pages are a true copy of the Reasons for Judgment

herein of the Court.

umociatet &,+.p	5 '&A
Date: 3 Hatch 1994

The Appellants appeared in person.

Counsel for the Reapondent:	G. Blake
Solicitors for the Respondent:	Messrs Norton Smith G CO.
Date of hearing:	28 February 1994