32 Mr McVey has deposed that he was unaware that State Trustees proposed entering an agreement with St Vincent's for the dismissal of the proceedings. He contends that he would not have agreed to that course had he been consulted and he also contends that the action taken was not in his best interests. The agreement, he therefore submits, was void or voidable by virtue of the several breaches of s.49.
33 In support of his contention as to the failure of compliance with s.49 Mr McVey sought to tender the transcript of proceedings conducted on 19 July 2004 before a Senior Member of VCAT in the Guardianship List. On that day the applicant successfully sought the revocation of the limited administration order made at VCAT on 8 June 2004. A solicitor representing State Trustees appeared at the hearing. Mr McVey has sought to rely on that material before us as fresh evidence on the appeal. That application is opposed by counsel for St Vincent's, but it seems to us to constitute fresh evidence and we will admit it on this application[9].
34 It must first be said that State Trustees is not a party before us and no submissions have been made on its behalf in answer to the assertion of Mr McVey that s.49 was not complied with. The transcript of the VCAT proceeding records, however, that the solicitor for State Trustees stated in the hearing that she had consulted with Mr McVey on 15 June, and that she had also considered a legal opinion provided by counsel engaged on behalf of Mr McVey through PILCH. Furthermore, the solicitor for State Trustees asserted that it had indeed acted in the best interests of the applicant when agreeing to the settlement of the proceedings, in that he was saved from incurring substantial legal costs on an action which had no prospects of success.
35 Mr McVey contends that State Trustees' lawyers could not have reached an informed opinion as to the prospects of success of his action since they did not have before them essential medico-legal and other evidence. That, of course, assumes that any such material would have emerged had the applicant been granted further time in which to procure it.
36 In support of his submissions, Mr McVey has sought to rely on a large volume of material, comprising affidavits and exhibits, which was not before the judge below. He applied to have that material treated as fresh evidence on the appeal, pursuant to r.64.22(3). In the course of argument Mr McVey accepted that much of that material was related to the question of negligence in the performance of the CT scan and to the prospects of success of an application under s.23A, rather than to the circumstances surrounding the entry of the consent judgment. For reasons later discussed, that material has no relevance to the present application.
37 The Court deferred making a ruling on the admissibility of the material for the purpose of this application for leave to appeal out of time, but, having regard to the fact that Mr McVey is unrepresented, we advised the parties that we would examine all of the material in order to assess whether it raised any matters relevant to Mr McVey's contention that the consent order ought be overturned. The Court indicated that it would rule later on the admissibility of the material.
Challenge to a perfected consent order
38 As earlier noted, Mr Clements submitted that the judgment could not be set aside on appeal as it derived from a compromise agreement between the parties. Counsel acknowledged that there may be some circumstances where the agreement itself could be invalidated, thus enabling the setting aside of an order based on the agreement, but denied that there was any basis for such a challenge in this case. The applicant contended that the agreement can be set aside by virtue of State Trustees having exceeded its power under the Act.
39 Before considering those competing arguments as to the validity of the compromise agreement it is appropriate to consider the bases at common law whereby an order based on a consent agreement might be set aside. As to that question a further issue arises - one which was not argued by Mr Clements - by virtue of the fact that the County Court order in this case was not only based on a consent agreement but had also been perfected.
40 The order made by Judge Shelton has been perfected, that is, it has been authenticated and entered into the records of the County Court. As a general rule, the public interest in there being finality of litigation decrees that, once perfected, a judgment entered upon a consent agreement can not be set aside: Bailey v. Marinoff[10]. In Permanent Trustee Co (Canberra) Ltd v. Stocks & Holdings (Canberra) Pty Ltd[11] Brennan, J. noted that there may be exceptions to that general rule, namely, ". . . those which are founded upon the inherent jurisdiction of the court to ensure that its procedures do not effect injustice; those which are authorized by statute and those which override the general rule in order to give relief where the judgment is obtained by fraud or by an agreement which is void or voidable". Mr McVey would contend that his case falls into one or more of those categories.
41 Save for limited purposes, it may be doubted that a judge of the County Court, an inferior statutory court, would have power to set aside a perfected judgment of that court[12]. The only remedy would be by way of appeal to the Court of Appeal, and that is the course the applicant has attempted to pursue. An appellate court has power "to strike off the fetters" which might restrain an inferior court from setting aside a judgment entered pursuant to a consent agreement[13].
42 The question, then, is whether the applicant's appeal would have any reasonable prospects of succeeding on any of the exceptional grounds identified by Brennan, J. If it has then, absent other disqualifying factors, leave to appeal out of time should be granted. Plainly, an appeal could not succeed on the basis of the material that was before the judge, and Mr McVey does not contend otherwise. He acknowledges that the order made by the judge was regular and was based on the signed consent agreement filed with the court.
43 The issue before us is whether there is an arguable case that the judgment ought be set aside as falling within one of the exceptions to the finality of a perfected judgment, entered by consent. As earlier noted, in Permanent Trustee Co (Canberra) Ltd v. Stocks & Holdings (Canberra) Ltd, Brennan, J. identified three categories of exception. I take Mr McVey to contend that his situation falls within all three categories, although he identifies the same factor under each heading, namely, that the agreement was entered without statutory authority, because State Trustees failed to comply with s.49 of the Act. The non-compliance was said to be twofold: State Trustees failed to act in his best interests, and it failed to consult him as to its intention to reach a compromise with St Vincent's.
Was the consent agreement void or voidable?
44 In support of his arguments Mr McVey referred the court to a number of authorities concerned with situations where it was contended that a compromise agreement reached between respective counsel had been entered in excess of counsel's authority or contrary to specific instructions given by a party. In my view, none of those authorities provide guidance for Mr McVey's situation. In the first place, and with one exception, each was an instance where a judge or appellate court was asked to set aside a compromise agreement at a time before judgment had been entered and perfected pursuant to the agreement, and the right of a court to set aside a compromise agreement which had been entered under a mistake by counsel for one party and before judgment had been perfected is not in doubt: see Hickman v. Berens[14]. In Neale v. Gordon Lennox[15] the House of Lords held that the power to set aside a compromise agreement which had been entered by counsel contrary to his authority derived from the court's "general authority over justice between the parties"[16]. Lord Lindlay noted[17] that if the court learned before the order had been drawn up that the agreement had been reached by counsel without consent of one party then the court would refuse to draw up the order.
45 In Shepherd v. Robinson[18], cited by Mr McVey, the judgment had not been drawn up when application was made to set the order aside on the basis that counsel had acted contrary to his authority. Bankes, L.J. held[19] that where counsel had apparent authority to compromise an action, and the other party had no notice of any limitation on authority, the client would be bound by such agreement, but that where application was made "before the consent order has been drawn up and perfected" then the consent of the client to the compromise may be withdrawn and the order will not be perfected where the court is satisfied that it was entered with want of authority[20].
46 The leading Australian case on the question is Harvey v. Phillips[21]. That was a case in which a party complained that although she had authorised her counsel to agree to a consent agreement compromising the action she had done so under duress. The party applied to the judge who made the consent order to set aside the judgment and upon his refusal applied for such relief by motion to the Full Court, which dismissed the application. In fact, judgment had not been entered, but no point was taken as to that before the High Court. On appeal the High Court held[22]: