Skrijel v Mengler and Ors

[2002] VSCA 55

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Practice and Procedure
2. › Pleadings
3. › Amendment of statement of claim
4. › Successive attempts to re-plead
5. › Consent orders for re-pleading on agreed basis
6. › Subsequent application to restore omitted claim
7. › Whether plaintiff bound by agreement reached by counsel
1. Practice and Procedure
2. › Consent orders
3. › Power of court after perfection of consent order
4. › Whether court may go behind agreement made by counsel with ostensible authority
5. › Whether agreement void or voidable
6. › Categories of exception to functus officio rule
1. Practice and Procedure
2. › Appeal
3. › Leave to appeal
4. › Extension of time
5. › Whether arguable error demonstrated
6. › Whether counsel acted without or contrary to instructions
7. › Whether case reasonably open on the affidavits
1. Practice and Procedure
2. › Barristers and solicitors
3. › Authority of counsel
4. › Ostensible authority to compromise
5. › Whether counsel acted contrary to express instructions
6. › Sufficiency of evidence to establish lack of actual authority

Quick Take

A party seeking to set aside a consent order on the basis that counsel acted without or contrary to instructions must adduce clear and credible evidence of express instructions that were disobeyed; evidence showing merely that counsel acted in a way not anticipated by the client is insufficient. The question whether a court can go behind counsel's ostensible authority to examine actual authority after a consent order has been perfected was left open.