Case: Harvey v Phillips (1956) 95 CLR 235
Outcome: cited
In Harvey v Phillips (1956) 95 CLR 235 the High Court was concerned with a consent judgment in a personal injuries claim. The plaintiff sought to set aside the judgment on the ground that counsel appearing for her was not authorised to compromise the action. The High Court (Dixon CJ, McTiernan, Williams, Webb and Fullagar JJ) held that, on the facts as found by the Supreme Court, the plaintiff had given her authority to her counsel to settle "however reluctant it may have been" (at 244). Earlier (at 242-243) their Honours had said that in the circumstances of the case it was not one where the court possessed a discretion to set aside the compromise. Instances of cases where there was such a discretion were: &#8226; Misapprehension or mistake by counsel in consenting to an order or settlement; &#8226; Where the assistance of the Court is invoked to carry into effect a compromise which otherwise could not be enforced; &#8226; Where counsel, owing to mistake or misapprehension, has acted in opposition to the client's instructions. Their Honours went on to say that where a compromise was made within the actual as well as the apparent authority of counsel there was no discretion to set the resulting order aside. It could only be set aside upon a ground which would suffice to render a 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" (at 243-244). 8 The central thrust of Mr Bristow's proposed appeal is an allegation of duress in the conduct of the mediation. As Harvey v Phillips holds, a consent order can be set aside if the agreement pursuant to which it was made is invalidated on the ground of, inter alia, duress. A fortiori, if the order is not a consent order in the true sense but one in which there is a discretion in the Court to set it aside (the second Harvey v Phillips category see [7] above), then proof of duress would be a ground for exercising that discretion. In the present case, however, as will appear, an arguable case of duress has not been established. 9 The sequence of events was as follows. On 12 December 2007 ASIC commenced the proceeding seeking interlocutory and final relief. The originating process was returnable on 5 February 2008. On that date Mr Bristow appeared and was represented by senior and junior counsel. Goldberg J made orders including setting down the application for interlocutory relief for hearing on 14 February and referring the proceeding to a Registrar for mediation to commence on or before 13 February. 10 On 14 February Mr Bristow was again represented by the same senior and junior counsel. During that hearing senior counsel on behalf of Mr Bristow sought an extension of the timetable for the conduct of the proceeding. He said that there was a large volume of material to respond to and that his clients would be "away on a holiday between 6 and 14 March". His Honour remarked, "Well, it's a matter for your clients to work out the priorities, I suppose". 11 His Honour made orders which included a direction that Mr Bristow and the other defendants serve any material in reply by 11 March and that the proceeding be set down for hearing on 22 April with an estimate of five days. His Honour noted that the material relied on by ASIC had been in the possession of the defendants since about the middle of the previous December. 12 The mediation did not commence until 21 February. It reconvened on 28 February and 20 March. Mr Bristow participated in the mediation and was again represented by the same senior and junior counsel. The mediation was conducted by the Victoria District Registrar of the Court, Ms Sia Lagos. On 20 March the parties arrived at a settlement. 13 Although there had been no halt order on the directions for the filing of material, Mr Bristow and the other defendants did not file any material in reply by 11 March as directed. On 14 March ASIC wrote to Mr Bristow's solicitors regarding this failure to comply with the directions. In the letter ASIC pointed out that Mr Bristow had not sought an extension of time for filing any affidavit material and that ASIC would not consent to any adjournment of the trial of the proceeding listed for 22 April. There was no response to that letter. 14 The matter came on again on 27 March before Goldberg J when the orders the subject of the present application were made. At this hearing, Mr Bristow was represented by the junior counsel who had appeared at the earlier hearings and at the mediation.