3.35: Judgment or order by agreement
9.2: Preparation of judgments and orders
9.6: Effective date of judgments and orders

Case Summary

The Parties believed they had arrived at a settlement during a Judicial Dispute Resolution (JDR) session. The Respondent’s Trial counsel subsequently drafted an Order and sent it to the Appellant’s counsel.

However, as a result of communication difficulties and vacation time, there was some delay in relaying the Order to the Appellant for comment. The Respondent’s Trial counsel sent a letter to the JDR Justice invoking Rule 9.2(2)(c), asking the Court to sign and enter the Consent Order as drafted as there had been no request for changes. The Court did so. After reviewing the draft Order the Appellant proposed some changes, however, the Order was already in the hands of the Court. When these circumstances were explained to the Justice he declined to set aside or open up the Order. The Appellant appealed the Order.

The Court found that the Order was clearly irregular and should not have been signed by the JDR Justice. Rule 9.2 “only applies to orders and judgments that are ‘pronounced’”. An Order that is pronounced is effective from the moment of pronouncement (Rule 9.6). A Consent Order, such as the one at issue in this case is not pronounced, it is created through the Parties’ agreement and specifically dealt with by Rule 3.35. In this case, an Order lacking the endorsement of counsel for the Appellant (there were only two parties to the litigation) should not have been characterised as a “Consent” Order.

Rule 9.2(2)(c) authorises “a type of ex parte procedure”, requiring counsel to make full disclosure of the relevant circumstances to the Justice. The Court held that the JDR Justice had not been provided with a full explanation of the circumstances. Moreover, the process followed in the Court below jeopardised the integrity of the JDR process and the process for entering Orders. The Court of Appeal allowed the Appeal and set aside the Order.

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