ReSolution | Nov 2017 10
The Supreme Court held that parties must comply with the dispute resolution provision and processes in a contract even if compliance is not a condition precedent to commencing litigation.
considered that this had also left him at a disadvantage. He felt that the mediator had pressured him to continue the process. Further, he felt it was not appropriate that there was no "face to face" contact between him and the other mediating party.
Ultimately, Mr Matsen claimed that he had only signed the short minutes of order to enable him to leave the mediation and the Federal Court building.
When can a consent order be set aside?
Justice Perry considered the relevant principles for setting aside or varying orders, being rule 39.05 of the Federal Court Rules 2011 (Cth), as well as the threshold set by the High Court in Harvey v Phillips (1956) 95 CLR 235.
Rule 39.05 lists the circumstances in which the Court can vary or set aside a consent order after it has been entered, including where there was an error arising from an accidental slip or omission, or the party in whose favour it was made in consents to changing the order. None of the circumstances applied to the present case.
The threshold in Harvey v Phillips provides that a consent order is similar to a contract: it must not be set aside unless there is some basis on which it can be said to be void, such as misrepresentation, undue influence, or mistake. A party cannot seek to have a consent order set aside merely because of a change of heart, or a perceived bad bargain.
How did the Court address the application?
Justice Perry considered the facts and found that, although the mediation may not have met Mr Matsen's expectations, there was no basis on which to set aside the consent order. Her Honour noted that it was neither unusual nor inappropriate for a mediation to have no "face to face" contact between the parties. Further, there was no medical evidence that Mr Matsen had been too unwell to consent.
Justice Perry observed that Mr Matsen's allegation of being physically detained and pressured by the Registrar was, at its highest, an argument that Mr Matsen had only settled the dispute and signed the short minutes of order under duress from the Registrar. Her Honour stressed the seriousness of this allegation, and noted that it would need to be proved to the standard of "reasonable satisfaction".
Justice Perry pointed to the "inherent unlikelihood" of the allegations, particularly given that the Registrar was an independent officer of the Court with no vested interest in the outcome of the mediation. Her Honour observed that Mr Matsen's complaints likely related to his subjective feelings given the subject-matter of the dispute, rather than the existence of any improper conduct. The Registrar's attempts to encourage Mr Matsen to resolve the issues at the mediation, rather than proceed to litigation, might have been perceived as pressuring him to consent to the orders, but they were not improper.
Ultimately, Justice Perry found that it was not necessary to determine the allegation of duress. Her Honour held that, even if Mr Matsen had felt pressured during the mediation in March, he subsequently agreed to the consent orders being made in July. He also obtained legal advice in the period following the mediation and before the consent orders were made. Mr Matsen did not allege to the contrary during the hearing of his application.
Settlement remorse...
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