Foote v Dixon [2013] ACTCA 25 | Case summary | Zoe

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Foote v Dixon [2013] ACTCA 25 | Case summary | Zoe

The orders were requisitioned, with the parties being referred to recent authorities (mentioned at [14] below) dealing with the circumstances in which a court should make consent orders allowing an appeal.
The matter was then mentioned twice before Penfold J. At the first mention, on 13 March 2013, Penfold J made orders for the filing of written submissions in support of the making of the consent orders, with particular reference to the arguable appellable error or errors relied on by the parties to justify the upholding of the appeal.
Submissions were accordingly filed. The respondent’s submissions rejected the proposition that any arguable appellable error needed to be identified, and declined to identify any such error.
At the next mention before Penfold J, on 18 April 2013, it emerged that there had been developments in the nature of the orders sought and the extent to which there was consent by both parties.
The parties confirmed that, as well as the order allowing the appeal, they still sought an order for the matter to be remitted to a trial judge for a further hearing and decision. However, counsel advised that the agreement between the parties was that once the matter was remitted to a trial judge, the proceedings would be terminated. That is, there was no genuine intention to have a further trial and, in particular, no intention to use further court resources rehearing the matter.
The appellant also sought an order setting aside the findings of the trial judge, but the respondent did not consent to that order.
Counsel declined an offer to list the matter for an oral hearing, involving senior counsel, of the question whether the orders sought could properly be made by consent, indicating that if the Court was not minded to make the orders on the basis of the written submissions and the information provided and submissions made before Penfold J, then the parties would seek a listing for the hearing of the appeal.
During the mention on 18 April, submissions were made by counsel for the appellant to the effect that the matter was an inter partes matter involving only private rights. In that context, counsel said she was instructed that the Medical Board of the ACT, which had earlier been conducting an inquiry into a complaint made by the respondent about the appellant (mentioned in Dr Andrew Foote v Michael Somes, Warren Johnson, Dr Catherine Sansum acting as Professional Standards Panel and Medical Board of the ACT and ACT Human Rights Commission [2012] ACTSC 63 (16 May 2012)), was not awaiting any findings or judgment in relation to the current proceedings in order to complete its inquiry. Counsel at one point indicated that she would obtain instructions about whether an appropriate affidavit could be provided, but the matter was not raised again during the mention.
On 7 June 2013 Penfold J on behalf of the Court refused to make consent orders in the terms sought, and indicated that the Court would provide reasons later. These are our reasons. Consideration
Allowing an appeal by consent if the respondent concedes error is not uncommon. However, the Federal Court has in recent years addressed the question of the correct test which must be satisfied to enable the Court to set aside a prior decision by consent. Authorities concerning setting aside judgments
Such issue has been considered by the Federal Court of Australia in the three recent decisions of Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy and Another (2008) 166 FCR 64 (Telstra), Citigroup Pty Ltd v Mason (2008) 171 FCR 96 (Citigroup) and Commonwealth Bank of Australia v Walker (2012) 289 ALR 674 (Walker).
In Telstra, the Full Court found at [51] that the Court must be satisfied that there was an appealable error in the first judgment as a condition of the exercise of its power to allow an appeal by consent. The Full Court at [54] found that: there is sufficient basis for the existence of error by his Honour [the primary judge] to enliven the power of the Court to allow this appeal.
In Citigroup, the Full Court of the Federal Court stated at [6] in relation to the Telstra decision: it is not clear whether this indicates that the Full Court concluded there was error or only that there was, and it was sufficient that there be, arguable error.
Whilst the Full Court in Citigroup made consent orders allowing an appeal on the basis that the parties agreed that there were arguable appealable errors in the prior decision, their Honours considered at [8] that there was a basis for concluding that Telstra was “plainly wrong”. The criticisms by the Full Court in Citigroup of Telstra are contained at [8] - [16]. It is significant that the thrust of these criticisms is directed toward any requirement for the parties to show actual error. This is highlighted by their Honours’ conclusion at [15]: Some of these problems are particularly acute in litigation that can truly be characterised as inter partes litigation, that is, where one party is asserting a legal right and seeking a remedy against another party and nothing more. The approach in Telstra may substantially inhibit parties reaching agreement and requesting a Full Court to give effect to their agreement in an appeal by making consent orders. Even if it does not inhibit parties in reaching settlement, it requires them to undertake, in some cases probably, at additional expense, the burden of establishing appellable error. We accept there may be classes of cases heard in the appellate jurisdiction where it is appropriate for the parties to explain or justify the outcome to which they have agreed, as there are in relation to some classes of cases in the Court's original jurisdiction. However, we find it difficult to accept that, as a matter of principle of general application, parties to an appeal must be required to justify their settlement (by demonstrating error) as a condition precedent to the exercise of a power in the appellate jurisdiction to make consent orders. (citations omitted)
In Walker, the Full Court of the Federal Court was again asked to determine an application to allow an appeal by consent. As the Full Court was not explicitly asked to depart from Telstra, the criticisms in Citigroup were not considered in detail, and the law relating to the requirements for having an appeal allowed by consent was not finally resolved: see [6]. However Perram J, with whom Rares and Flick JJ agreed, observed at [4] that the Full Court’s statement in Telstra at [51] (set out at [15] above): needs to be understood in the context of their later statement at [52]-[54], which appears to proceed on the basis that demonstration of an arguable appealable error is all that is required.
The Full Court in Walker proceeded to apply the test of an “arguable appealable error”.
Such approach avoids the criticisms by the Full Court in Citigroup of the requirement imposed in Telstra, namely that actual error must be shown in order to enliven the Court’s power to set aside a judgment by consent. In contrast to requiring actual error to be shown, the test of “arguable appealable error” is not so burdensome on the parties as to engage the criticisms set out in Citigroup in their full force. Further, it ensures that the Court is not merely treated as a “rubber stamp” as would be the case if an appeal were allowed solely upon the consensual request of the parties: see GW v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247 at [7]. Accordingly, the test of whether an arguable appealable error exists in the primary judgment is the test that this Court adopts.
The existence of arguable appealable error in the present application was disputed by the respondent. In these circumstances, it is impossible for the parties to maintain that the application to set aside the primary judge’s decision is made by consent. As such, the application must be dismissed. Forum shopping and use of court resources
The Court also notes that this application raises a question in addition to the issues considered in Telstra, Citigroup and Walker; namely, on the face of the consent orders, the parties sought, in addition to the appeal being allowed, that the matter be re-litigated before another judge. That question raises competing aspects of public policy.
The parties have already had the benefit of a hearing before a single judge of this Court. In the interests of finality of litigation, not to mention the protection of publicly-funded and scarce judicial resources, they should be bound by that decision, unless a Court overturns the decision or is satisfied that arguable appealable error warrants it being set aside. Conversely, the Court acknowledges that the litigation appears to be inter partes litigation, the result of which would not affect the public generally.
There was also a concern about the Court being asked to become involved in what might be seen as a colourable transaction. The impact of the current application on the finality of litigation and the husbanding of resources may not in fact give rise to substantive concerns, given the parties’ advice that they do not in fact intend to pursue the new trial that they have asked the Court to order. However, those concerns could only be disregarded on the basis that the Court was being asked to make an order that the parties did not intend to take effect. This seemed to us to be an abuse of the Court’s role. As well, if the Court did make such an order, the Court would be put in a very difficult position if the current agreement between the parties subsequently broke down and there was an attempt to pursue the new trial that had been ordered. Conclusions
We came to the view that, even if we had found that the decision should be set aside, acquiescing in the parties’ request to refer the matter to another judge for rehearing would judicially condone “forum shopping”, set an undesirable precedent as to the use of court resources, and potentially place the Court in a very invidious position if the parties’ agreement broke down. Had the parties merely sought to withdraw the appeal on terms not to be disclosed, the Court would have entered orders to that effect by consent. However the Court did not consider it appropriate to make orders by consent setting aside the decision of the primary judge and ordering a rehearing where no arguable error had been shown in the primary judge’s decision. New Court of Appeal listing
As mentioned at [10] above, the parties indicated that if the Court was not willing to make the orders sought, then the matter should be listed for a hearing of the appeal. We considered, having regard to the issues canvassed in this matter, that the appeal should be heard by a differently constituted Court of Appeal, and will so order. Orders
Accordingly, on 7 June 2013, we made several orders. The first group of orders were that the application be dismissed with each party to pay its own costs, but that leave be granted to the parties to make any further application to the Court for a period of 21 days. The second group of orders were that the proceeding be listed for a hearing as a contested appeal, before a differently constituted Court of Appeal, subject to the 21 day period referred to in one of the first orders, and that the parties had liberty to apply to the Registrar for such a listing.