Proctor : May 2019
36 PROCTOR | May 2019 Consent orders and judgments in state and federal courts Parties frequently reach agreement on interlocutory or final orders to be made in a proceeding. This article deals with the practice that should be adopted by practitioners to obtain court orders to reflect their agreement. This article does not deal with the special rules for consent orders in appeals and costs assessments which differ, at least in the state courts,1 to the general position set out below. Also, in the Federal Court and Federal Circuit Court there are different rules for consent orders in family and property settlement matters2 and appeals from tribunals such as the Administrative Appeals Tribunal,3 which are also beyond the scope of this article. State courts The most relevant rules in the Uniform Civil Procedure Rules 1999 (UCPR) are rules 30(6) and 464, which deal with consent adjournments, and rule 666, which deals with other consent orders and judgments. Consent adjournment of registrar The simplest consent order is the consent adjournment. Rule 30(6) UCPR applies to proceedings commenced by originating applications, and rule 464 UCPR applies to all applications, including applications in a proceeding. These rules provide that, if the parties consent to an adjournment of the hearing of an application, the registrar can move the hearing to another date. The rules do not appear to accommodate ancillary orders such as costs orders. The approved form for adjourning applications commenced by originating application is a Form 11.4 There is no specific approved form for adjournments of an application in a proceeding, and in those circumstances the procedure below should be adopted. There is also a specific form if the parties want to consent to refer the matter to an alternative dispute resolution process such as mediation.5 In those circumstances, Form 34 should be used. Consent orders of registrar Where there is no specific rule, and no specific form, the parties should execute a Form 59A Request for Consent Order of Registrar. The usual practice is to set out the order the parties want the court to make in Form 59. That document is generally exchanged in an editable form, such as a Microsoft Word format, so that if the party receiving the proposal wants to suggest changes this can be done quickly. Once the form of order is agreed, both solicitors execute Form 59A, which attaches the agreed Form 59. Either the same form or (more usually) counterparts are signed. Those counterparts are then compiled and filed in the court. The manner of filing of the request and the supporting material that is required is set out in practice directions in each court.6 In each court, the practice directions say that the parties should file Form 59A, together with two copies of the proposed order. The parties should supply two copies of the order in addition to the copy that is physically affixed to each Form 59A. It may be necessary to file an affidavit if some further factual prerequisite exists for the making of the relevant order. However, in the case of discretionary directions of a purely procedural nature, the consents themselves will usually be sufficient. If no hearing is set down in the near future, the parties can simply file the Form 59A, or the counterparts if they were executed separately. However, when the matter is listed for hearing, the process is more complex. The registries generally insist on receiving original signed Form 59A requests for consent orders, before consent orders are sealed. There does not appear to be a mandate in the UCPR for the registrar to hold original signed copies. Indeed, there is no requirement in the UCPR for signatures. All that Rule 666 requires, in order for the registrar’s jurisdiction to be enlivened, is that “the parties consent in writing”7 to the order and that the “consents must be filed in the registry”. 8 However, documents can only be filed electronically if that method “is approved by the principal registrar of the court in which the document is to be filed”. 9 Requests for consent orders are not approved to be filed electronically. 10 Therefore, the document must be filed personally or by post. 11 To alleviate this, the registrars of the state courts will generally receive electronic or facsimile copies of Form 59A and attached Form 59, and will (if the orders are acceptable) vacate or adjourn dates as required, but generally will not seal the order until the originals are filed. If the parties have reached agreement before a hearing and want to avoid an appearance, they should call the relevant registry, confirm the best email address for the submission of consent orders, then (with the other party’s consent) email the collated Form 59A requests and the orders to the relevant address, copying in the other parties. The email should request confirmation whether the orders will be made without the need for an appearance and should say that the parties intend to file original consent orders in due course. Parties should never assume an appearance is no longer necessary until they are given this advice by the court. The parties should take care to note the limitations on the registrar’s discretion. In each court, the practice direction sets out the types of matters for which a registrar will not make a consent order. These include things like interlocutory injunctions, which require undertakings to be given in open court. There is a statement in each practice direction that the registrar will not make an order which they “would not routinely make without submission, authorities or detailed evidence or explanation”. 12 For example, adding parties to a proceeding will generally be referred to a judge. Final orders Rule 666 empowers the registrar to enter judgment. Form 59A can still be used to evidence the consent of the parties, however the Form 59 that is usually attached to requests for orders on interlocutory applications should be replaced with a Form 58, which is more appropriate for final orders and judgments. The same process set out above in respect of filing original requests applies.