Determination
23It is perhaps convenient first to set out rr 36.1, 36.1A, 36.11 and 36.12 of the UCPR.
"36.1 General relief
(cf SCR Part 40, rule 1; DCR Part 31, rule 8; LCR Part 26, rule 1)
At any stage of proceedings, the court may give such judgment, or make such order, as the nature of the case requires, whether or not a claim for relief extending to that judgment or order is included in any originating process or notice of motion.
36.1A Consent orders
(1) The court may give judgment, or order that judgment be entered, in the terms of an agreement between parties in relation to proceedings between them.
(2) Unless the court, for special reasons, otherwise orders, the court must refuse to give judgment, or order that judgment be entered, in terms that restrict, or purport to restrict, any disclosure of the terms of the judgment or order.
(3) Subrule (2) does not limit the effect of any agreement between the parties that contains provisions that restrict the parties, or purport to restrict the parties, from disclosing the terms of the agreement or of the judgment or order.
...
36.11 Entry of judgments and orders
(cf SCR Part 41, rule 11)
(1) Any judgment or order of the court is to be entered.
(2) Unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court's computerised court record system.
(2A) If the court directs that a judgment or order be entered forthwith, the judgment or order is taken to be entered:
(a) when a document embodying the judgment or order is signed and sealed by a registrar, or
(b) when the judgment or order is recorded as referred to in subrule (2), whichever first occurs.
(3) In this rule, a reference to a judgment or order of the court includes a reference to any judgment, order, determination, decree, adjudication or award that has been filed or registered in the court, or of which a certificate has been filed or registered in the court, as referred to in section 133 (2) of the Civil Procedure Act 2005.
(4) This rule does not limit the operation of rule 36.10.
36.12 Registrar to furnish copies of judgments and other documents
(cf SCR Part 41, rule 15; DCR Part 31, rule 16; LCR Part 26, rule 7)
(1) Unless the court orders otherwise, on payment of the fee prescribed by the regulations under the Civil Procedure Act 2005, the registrar must:
(a) furnish a sealed copy of any judgment or order that has been entered in the proceedings to any person who applies for such a copy, or
(b) seal a document provided by the person that, in the opinion of the registrar, accurately sets out the terms of the judgment or order.
(1A) A document sealed by a registrar in accordance with subrule (1) (b) is taken to be a sealed copy of the relevant judgment or order.
(2) Unless the court orders otherwise, on payment of the fee prescribed by the regulations under the Civil Procedure Act 2005, the registrar:
(a) must furnish to any party to any proceedings, and
(b) may furnish to any other person appearing to have a sufficient interest in the proceedings,
a copy of any pleading or other document that has been filed in the proceedings.
(3) Despite subrules (1) and (2), the registrar must not furnish a copy of an adoption order made in proceedings under the Adoption Act 2000 to any person, except the plaintiff in those proceedings, unless the court orders otherwise."
24It is necessary to ascertain what in law occurred on 16 December 2008. It appears to be clear what happened, factually. A Registrar dated and stamped, but did not sign, the terms of settlement and an entry was made on the District Court file and in the computerised records of the Court in the fashion I have set out. It is also clear that at no time was there an entry into the Court's record system of the full terms of the terms of settlement. It remains to be determined, therefore, whether the terms of settlement have been entered in the sense of the entry of a judgment or order.
25As stated above, r 36.1A provides that the court may give judgment or order that judgment be entered in terms of an agreement between the parties. There appears no reason why the terms of settlement do not fall within that description. By the terms of the document, the parties have not made clear the status of the four paragraphs. In content and text, paragraphs 1 and 4 appear to be by way of judgment or order. (I leave to one side the obvious difficulty with paragraph 4 under r 36.1A(2).) The parties did not state that paragraphs 2 and 3 were qualifying agreements. All four paragraphs were part of the document titled "terms of settlement", which was filed. In argument, Mr de Robbillard for Ms Mills submitted that paragraphs 2 and 3 were paragraphs which qualified the nature of the verdict and judgment provided for in paragraph 1. Therefore, it was submitted, there was an implied limitation on the verdict and judgment in paragraph 1 by the contents of paragraphs 2 and 3 such that, upon the default by Ms Mills on any two monthly instalments, the only enforcement remedy was leave to issue a writ of execution forthwith. Thus the applicant argued that paragraphs 2 and 3 were more than a mere agreement of the parties providing for qualification contractually, inter se, of the effects of verdict and judgment in paragraph 1.
26I will return to the proper meaning of the terms of settlement in due course. Whatever the document's meaning, was it entered into the computerised court record system? The answer to this question is, no. The entry in the computerised court record system did not amount to what is contemplated by Pt 36, r 36.11(2) of the UCPR. What needs to be recorded in the court's computerised record system is the judgment or order. Given that the only document that had been filed and that the parties had sought the Court to deal with was the document entitled "terms of settlement", for that agreement to be the basis of the Court's judgment for the purposes of r 36.1A, there must have been a recording of the judgment or order, in its terms. It can be accepted that the Court would not make a judgment or order in terms of paragraph 4. But the parties, by filing the document, have requested it (or such of it that lawfully can be made) to be made as a record of the Court. This would require for entry under r 36.11(2) the recording of the judgment or orders in the terms of settlement.
27The proper construction of r 36.11 is, it seems to me, that unless a court orders otherwise for r 36.11(2) or unless a court directs, in the manner set out in r 36.11(2A), entry under the Rules is not effected otherwise than by recording in the court's computerised court record system contemplated by r 36.11(2). Recording the orders means just that: setting them out. There is no recording of the orders if all that is stated is that some orders exist. It would undermine the integrity of a computerised record system to have mere references to pieces of paper in files treated as a recording of the judgment or order in the computerised record system. In my view, that is not what the rule means. To the extent that the record in the computerised system might be seen as some form of incorporation by reference, it does not record the judgment or orders. One cannot even ascertain the amount of the judgment in order 1. One can put the two together, by looking at the file, but that is not adequate.
28In Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; 75 NSWLR 462 Basten JA (with whom Giles JA and Ipp JA agreed) noted that entry of judgment and orders now occurs in the computerised court record system. It was unnecessary in that case to deal with the question of whether this was the only method of entry (subject to any direction of the court under r 36.11(2) or (2A)). In my view, however, this must follow. If it were otherwise and the "paper" entry of an order was entry (absent any order otherwise for sub-rule (2) or direction contemplated by sub-rule (2A)), there would be entry at one date and then, if, but only if, the judgment or order were to be recorded in the court's computerised record system there would be another and later date for the entry of the order by reason of the phrase "taken to be entered".
29The UCPR was not promulgated against the background of a well-entrenched practice in all courts of settlement and entry of orders. The practice and rules for entry were quite different in the Supreme Court and the District Court under the previous Supreme Court Rules 1970 (NSW) (Pt 41) and the previous District Court Rules 1973 (NSW) (Pt 31), the latter not providing for perfection of orders by way of entry.
30The previous District Court Rules provided in Pt 31, rr 14 and 15:
"14 Judicial notice of order
(1) In any proceedings, the Court may take judicial notice of any order of ... the Court in the proceedings.
(2) In any proceedings, the Court may be informed of an order of ... the Court in the proceedings by (amongst other things) reference to a note made:
(a) by the Judge making the order ... or by his Associate or by any other proper officer, or
(b) by the registrar making the order ...
15 Form of judgment or order
(1) A form of judgment, and a form of order for signature by the registrar, shall when filed be sealed with the seal of the Court.
(2) Except where otherwise provided by the rules or required by the Court, it shall not be necessary to file a form of judgment or order unless application is made for a certified copy thereof."
31In Palmer v Clarke (1989) 19 NSWLR 158 at 168 Kirby P, who gave the principal judgment, said:
"Under Pt 31, r 15 of the District Court Rules it is not ordinarily necessary for a party to file a form of judgment or orders. It takes effect from the moment it is pronounced. Rights and obligations then attach to it. Execution may, unless stayed, be levied."
32UCPR, r 36.11 in its original form in Sch 7 to the CPA provided:
"(1) Any judgment or order of the court is to be entered.
(2) Unless the court orders otherwise, a judgment or order is taken to be entered:
(a) in the case of a court that uses a computerised court record system, when it is recorded in that system, or
(b) in any other case, when it is recorded, in accordance with the practice of the court, as having been entered."
Sub-rule (2) preserved the former practice in the District Court. This was changed by the amendment to r 36.11(2) by the Uniform Civil Procedure Rules (Amendment No 23) 2008 (NSW), which brought it into its present form. The effect of the new sub-rule (2) on the District Court, which had no other system for the entry of orders, was to make entry on the computer record the only way orders could be entered. That amendment was made on 3 November 2008 and gazetted on 7 November 2008, shortly before the terms of settlement were signed. It seems that the parties and the District Court followed the earlier practice, although in view of s 133 and the new sub-rule it was inappropriate and indeed dangerous to do so.
33The UCPR are uniform rules. They exist and were made in an era of growing computerisation. The rule (r 36.11) makes ample room for flexibility for methods of entry by the initial qualification in both sub-rules (2) and (2A). If neither of those qualifications is made, entry is by recording the orders in the computerised record system of the court. Here, there has been no recording of the orders in the terms of settlement for the purposes of rr 36.11 and 36.1A.
34For these reasons the orders in the document of 25 November 2008, filed on 27 November 2008 and stamped with a seal by the Registrar on 16 December 2008 have not been entered.
35It is necessary therefore to turn to the document bearing the date of 29 April 2010. The "judgment/order" dated 29 April purports to be a sealed copy of a judgment or order entered on 16 December 2008. For the reasons I have already given no judgment or order was entered on 16 December 2008 and therefore this document is not a copy of it, because such judgment or order does not exist as entered.
36Rule 36.12(1A) says that a document sealed by a Registrar in accordance with sub-rule (1)(b) is taken to be a copy of the relevant judgment or order. This cannot be conclusive if, in all the circumstances, it has been demonstrated that there is no judgment or order that has been entered.
37Further, the document is inaccurate, insofar as it seeks to set out the terms of settlement. It reflects an interpretation of the document of November 2008 that the only judgment is in paragraph 1 and that paragraphs 2 and 3 are instalment orders (otherwise than as provided for in the CPA, s 107 and the UCPR, Pt 37). It is to be noted, however, that an instalment agreement under Pt 37, r 37.1A has no effect unless the signature of each person executing it is witnessed by a Registrar or other officer of the court or by a solicitor or barrister, unless the signatures (which was not the case here) were of a solicitor or barrister.
38Rule 36.12(1) provides that the Registrar must (a) furnish a sealed "copy" of any judgment or order that has been entered or (b) must seal a document provided by a person that in the opinion of the Registrar accurately sets out the terms of the judgment or order. It is not clear whether (a) or (b) was undertaken here. In either case, the document does not reflect the terms of settlement. Nor has any judgment or order been entered. Thus the document is not a "copy" of the orders that have been entered. If anything was purported to be entered on 16 December 2008, it was the existence of terms of settlement. If the Registrar acted under r 36.12(1)(b), the document does not accurately set out the terms of the judgment or order. The judgment or order in r 36.12(1)(b) is the same judgment or order referred to in r 36.12(1)(a), that is one "that has been entered". This has not occurred.
39In my view, the learned primary judge was wrong to conclude that anything had been entered. Her Honour was also wrong to conclude that the April 2010 document was a copy of a judgment or order that had been entered.
40Section 133 of the CPA is in the following terms:
" Judgments and orders unenforceable until entered
(1) A judgment or order of the court may not be enforced until it has been entered in accordance with the uniform rules.
(2) This section extends to:
(a) any judgment, order, determination or decree of a court, and
(b) any adjudication or award of a person having authority to make an adjudication or award, that may be filed or registered in the court, or of which a certificate may be filed or registered in the court, under any other Act or law.
(3) In subsection (2), law includes:
(a) a law of the Commonwealth, and
(b) a law of another State or Territory, and
(c) in relation to the Supreme Court, a law of a foreign country."
41Since there has been no entry, there is no order that could be enforced: the CPA, s 133. Ms King and Futhem were attempting to enforce orders that have not been entered, and the applicant is entitled to an order preventing that.
42That does not mean, however, that Futhem is without remedy. Futhem drafted the terms of settlement. There now appears to be a significant dispute as to the meaning of the terms and the proper form of order to be entered consequent upon the terms of settlement being filed. The District Court has control of its own proceedings. No final order has been entered disposing of them. To the extent that there is a lack of clarity in the terms of settlement, that can be resolved by the District Court construing the terms of settlement. Were they proposed orders (paragraphs 1 and 4) with a side agreement (paragraphs 2 and 3)? Or were they a body of composite orders (paragraphs 1-4)? There is much to be said for assuming that the former was the case. However, this Court does not have the surrounding material to construe the orders. Nor is the application or the appeal the proper place for that process.
43Section 73 of the CPA is in the following terms:
" Power of court to determine questions about compromises and settlements
(1) In any proceedings, the court:
(a) has and may exercise jurisdiction to determine any question in dispute between the parties to the proceedings as to whether, and on what terms, the proceedings have been compromised or settled between them, and
(b) may make such orders as it considers appropriate to give effect to any such determination.
(2) This section does not limit the jurisdiction that the court may otherwise have in relation to the determination of any such question."
Given that the parties are in dispute about the nature of the compromise and the consequences of the settlement, it is for the District Court to resolve that dispute by reference to the background facts and the documents in question, in order to identify the appropriate orders and to provide for their entry.
44That gives rise to the question as to the proper relief in this Court.
45In the light of the above reasons, the proper order to give effect to the CPA, s 133 is to restrain the respondent seeking to enforce either the terms of settlement dated 16 December 2008 and sealed with a stamp of the District Court of New South Wales and the document dated 29 April 2010 purporting to be a copy of entered orders, until such time as orders are entered pursuant to the terms of settlement signed by the parties on 25 November 2008 and filed with the District Court of New South Wales on 27 November 2008. I would remit the matter to the District Court for resolution of the present dispute as to the effect of the compromise and as to the proper form of order to be entered pursuant thereto.
46As to costs, the applicant has been successful in the application and appeal and should have her costs of the appeal.
47The resolution of this matter is far from satisfactory. The unsatisfactory nature of the position has been brought about, in substance, by the unsatisfactory form of the terms of settlement. The document so entitled does not make clear which paragraphs are orders and which, if any, of the paragraphs are side agreements. The parties did not attend to the preparation of a minute of order. Further, the District Court did not comply with r 36.11.
48The orders of a court are official acts of the judicial branch of government. The court should ensure that its records are both accurate and made in a timely way. Parties should be familiar with the Rules. Should some flexibility from the operation of r 36.11 be required, an order of the court or a direction of the court should be made in accordance with r 36.11(2) or (2A).
49The orders I would make are:
- Application for leave to appeal granted.
- Notice of appeal to be filed within 14 days.
- Appeal allowed.
- Orders of the District Court made on 26 May 2011 be set aside and in lieu thereof restrain the plaintiff from seeking to enforce the terms of settlement dated 16 December 2008 or the purported orders of the Court recorded in the document of 29 April 2010 and order that the plaintiff pay the defendant's costs of the notice of motion of 15 June 2010.
- Remit the matter to the District Court for resolution of the question as to the proper form of orders to be entered consequent upon the compromise as evidenced by the terms of settlement dated 25 November 2008 and filed with the District Court on 27 November 2008.
- Respondent pay the appellant's costs of the application for leave to appeal and the appeal.
- The respondent should have a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise qualified.
50BEAZLEY JA: I agree with Allsop P.
51HANDLEY AJA: I agree with Allsop P.