Parties settle appeals as often as they settle trials. The Supreme Court will make the orders the parties agree, but it is a court, not a rubber stamp: it must have the power to make the order, and the order must be clear enough to enforce.
Two kinds of consent order
| Kind | Examples | Who makes it |
|---|---|---|
| Procedural | Extending time for the index or appeal book; adjourning a call over, directions hearing or hearing; directions for submissions; a stay on agreed terms; leave to withdraw | The Duty Judge or a single Judge in chambers, or the Court at a directions hearing or status conference |
| Dispositive | Appeal allowed by consent and judgment set aside; appeal dismissed by consent; National Court judgment varied to an agreed sum; matter remitted by consent for rehearing; costs orders | The full Court, usually on the papers or at a short listed hearing |
Procedural consent orders
(1) Proceedings in a Directions Hearing or Status Conference shall not be adjourned generally, even by consent. (2) If parties require time to consider their position or negotiate a settlement, the proceedings may, with the approval of the Duty Judge, be adjourned for a comparatively lengthy period, but always to a fixed date with liberty to restore the matter to either the Call over List or Directions Hearing or Status Conference, within that time. (3) A substantive hearing of a matter shall not be adjourned unless sufficient cause is shown to the Court, by the party applying for an adjournment.
The practice is to file a Form 4 application headed “by consent”, with the proposed orders typed out and endorsed “consented to” and signed by each party’s lawyer, and a short affidavit explaining the reason if the order extends time or vacates a date. The Registrar places it before the Duty Judge under Order 13 Rule 2, who may make the order in chambers, or the parties hand up the signed terms at the next directions hearing under Rule 8. Consent does not guarantee the order: Rule 13 shows that the Court will not adjourn generally even by consent, will adjourn only to a fixed date, and will not vacate a fixed hearing without sufficient cause shown on affidavit three clear days before. Where the Rules prescribe no procedure for what the parties want, Order 11 Rule 9 lets them apply to a Judge for directions. See how to make an application in the Supreme Court and the Duty Judge.
Consent orders that end the appeal
On the hearing of an appeal, the Supreme Court shall inquire into the matter and may (b) affirm, reverse or modify the judgement; or (c) give such judgement as ought to have been given in the first instance; or (d) remit the case in whole or in part for further hearing; or (e) order a new trial.
An order disposing of an appeal is a judgment of the Supreme Court, and the parties cannot agree the Court into making one it could not make after a hearing. The terms must therefore fit section 16: allow the appeal and set aside or vary the judgment, dismiss the appeal, or remit. The Court will not, for example, by consent enter judgment against a person who was not a party below, or make declarations about matters outside the appeal. Where the settlement includes terms that are not orders, such as payment by instalments or a confidentiality clause, the practice is to record them in a schedule to the order, with the appeal dismissed or allowed on those terms and liberty to apply. File the signed terms with a Form 4 application; the Registrar lists it before a bench, often at the monthly call over, and the Court makes the orders on the papers if it is satisfied.
The simpler alternative: discontinuance
Where the settlement is simply that the appellant will not go on, no order is needed. The appellant files and serves a notice of discontinuance under Order 7 Rule 20, and the appeal is abandoned on filing. Rule 22 makes the appellant liable for the respondent’s costs unless the parties agree otherwise, so the settlement should say who pays. Applications and reviews are withdrawn under Order 11 Rules 29 to 30, which need leave once an appearance has been filed.
Costs
Say what happens to costs, both of the appeal and in the National Court. Silence means the Court decides under its general discretion in Order 12, and the usual order on discontinuance or withdrawal, under Order 7 Rule 22 and Order 11 Rule 30(2), is costs against the party who withdraws. “Each party to bear its own costs” is the standard neutral term. See who pays the costs of an appeal.
A consent order cannot be appealed
An appeal does not lie from an order of the National Court made by consent, and a consent order of the Supreme Court is final under Constitution section 155(2). A party who wants out of a consent order must show that the consent was not real, through fraud, mistake or lack of authority, and apply to set it aside in the court that made it. Sign only what you mean. See appealing a consent order and getting a sealed copy of an order.
Sources
- Supreme Court Rules 2012 — O 7 rr 20–22; O 11 rr 9, 29–30; O 12 rr 4, 22; O 13 rr 2, 8, 13; Form 4
- Supreme Court Act (Chapter 37) — ss 14(2), 16
- Constitution — s 155(2)
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.