Most litigation ends by agreement. A consent order records that agreement in a form the Court has made and that can be enforced.
No appeal
An appeal does not lie from an order of the National Court made by consent of the parties.
PacLII carries the Supreme Court Act (Chapter 37) as a downloadable document rather than as browsable text. Section 14 is set out in full in Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1; SC853, from which this wording is taken.
A party who agrees to an order and later regrets it has no appeal. The remaining possibilities are an application to set aside or vary in the National Court — and note the limit in Order 12 Rule 8(4), which excludes orders that determine a claim for relief or a question arising on a claim for relief — or a fresh proceeding attacking the agreement itself on grounds such as fraud, mistake or duress.
So read the draft before you consent. In particular, be sure that what is recorded is what was actually agreed, and that nothing has been left out.
Consent in the Rules
| Provision | What consent achieves |
|---|---|
| O 1 r 15(3) | The period to serve, file or amend any pleading may be extended by consent without an order |
| O 8 r 61(1)(b) | Discontinuance before judgment, with the consent of all other parties; the notice must bear the consent of each consenting party — r 64(2) |
| O 8 r 62(2) | Withdrawal of an admission requires consent or leave |
| O 11 r 13 | An examiner may examine an additional person with the written consent of each party |
| O 11 r 6(4) | A summons may be served at the solicitor’s address with the consent of the solicitor |
| O 10 r 22 | Parties may, with leave, agree that on a question being decided in a specified sense, a specified judgment or order shall be made |
| Listings Rules r 6(2) | The other party may endorse the Notice to Set Down agreeing the matter is ready |
| Motions Rules r 18(3) | A motion may be adjourned by consent using the form in Schedule A |
| O 16 r 8(2) | An application for an order dismissing judicial review proceedings by consent may go before any Judge |
Several matters need the Court’s approval whatever the parties agree. The clearest is a settlement affecting a disabled person: under Order 5 Rules 28 and 29, the Court may approve or disapprove a compromise, and a disapproved agreement is not binding. A settlement of a child’s claim without approval binds nobody.
Similarly, Order 10 Rule 22 requires the leave of the Court before the parties may agree the consequence of a decided question.
What a consent order should contain
- What each party is to do, and by when. Under Order 12 Rule 4, an order requiring an act shall specify the time, and failing that the time is 14 days after service of the minute.
- Costs — agreed sum, party-party taxation, or each party bearing its own. Silence invites a later dispute.
- Interest, if any — see interest on a judgment.
- The fate of the proceeding — judgment, discontinuance, dismissal, or a stay on terms.
- Any undertaking as to damages given earlier — say expressly whether it is released.
- Existing interlocutory orders — injunctions, freezing orders, orders for preservation of property. Say whether they are discharged.
- Money in Court — under Order 8 Rule 78, money is not paid out except by order in seven situations, including where the plaintiff is a disabled person.
Terms that go beyond what the Court could order — confidentiality covenants, future commercial arrangements, apologies — are better recorded in a deed of settlement, with the consent order dealing only with the proceeding.
The distinction matters on enforcement. Breach of an order is enforceable under Order 13, and disobedience of an order requiring an act may be contempt. Breach of a contractual term is a fresh cause of action requiring fresh proceedings.
Procedure
By minute lodged with the Registrar. Under Order 12 Division 2, a party may lodge a draft minute; the Registrar may settle the draft without an appointment where the terms are agreed. The minute is then sealed with the seal of the Court on entry, and certified copies may be obtained on payment of the prescribed fee.
In Court. The parties appear and the terms are handed up and pronounced — usual at a mention or directions hearing, where consent orders on the checklist matters are routinely made.
Whichever route, make sure the minute is signed by or on behalf of each consenting party, and that the person signing has authority.
Where a matter has been referred to mediation under the Alternative Dispute Resolution Rules 2022, a settlement reached there is ordinarily brought back to the Court to be made an order. See what happens if mediation succeeds.
Whether the parties have attempted out of court settlement is itself a checklist item the Court considers at the mention.
Sources
- National Court Rules 1983 — O 1 r 15; O 5 rr 28–30; O 8 rr 61, 62, 64, 78; O 10 rr 9A, 22; O 11 rr 6, 13; O 12 rr 4, 8, Div 2; O 13; O 16 r 8; Motions Rules r 18
- Supreme Court Act (Chapter 37) — s 14(2)
- Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1; SC853
- Alternative Dispute Resolution Rules 2022
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.