' z , ot a | | CATCHWORDS i "Q PRACTICE AND PROCEDURE - jurisdiction of Federal Court to enforce summarily a compromise of a proceeding under the Trade Practices Act 1974 Federal Court of Australia Act 1976 ss. 22, 32. Trade Practices Act 1974 ROBERT ELLWOOD V. DARLING STMENTS PTY.LTD. QLD. NO. G10 OF 1985 SPENDER J. BRISBANE 23 JUNE 1987. seen eae se Spt rater aigee ae at aoe J pave er IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISTON we ee BETWEEN : ROBERT ELLWOOD Applicant DARLING DOWNS INVESTMENTS PTY. LTD. Respondent MINUTE OF ORDER QLD. G10 of 1985 JUDGE MAKING ORDER : DATE OF ORDER: WHERE MADE: SPENDER J. 23 JUNE 1987 BRISBANE THE COURT ORDERS THAT: Judgment be given for the applicant against the respondent in the sum of $57,500.00; the respondent to pay the costs of the motion to be taxed. NOTE: Settlement and Entry of Orders is dealt with in Order 36 of the Federal Court Rules. ae nae SO re en nS re ee ee . t o.oo Pr eT ere eee * . . t 7) hd IN THE FEDERAL COURT OF AUSTRALTA QLD. G10 of 1985 QUEENSLAND DISTRICT REGISTRY GENERAL DIVISTON DATE OF HEARING: DATE JUDGMENT DELIVERED : BETWEEN : ROBERT ELLWOOD Applicant AND: DARLING DOWNS INVESTMENTS PTY. LTD. Respondent 1 APRIL 1987 23 JUNE 1987 COUNSEL : for the applicant Mr. R. Oliver instructed by Elliott Stubbs & Bonutto for the respondent Mr. A.J.H. Morris instructed by Hawthorn Cuppaidge & Badgery T. MACDERMOTT ASSOCIATE TO SPENDER J. vr ane BATT --e ty TT a eT IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QLD. G10 of 1985 GENERAL DIVISTON BETWEEN ; ROBERT ELLWOOD Applicant DARLING DOWNS INVESTMENTS PTY. LTD. Respondent SPENDER J. BRISBANE 23 JUNE 1987. REASONS FOR JUDGMENT This Notice of Motion raises a short and important question, namely, does the Federal Court of Australia have jurisdiction to give effect toa settlement agreed to by the parties to proceedings in this Court under the Trade Practices Act 1974? Or, expressing the question in somewhat wider terms, if parties to a Federal Court proceeding settle the matter on terms which are not complied with, is the non-defaulting party obliged to sue on the settlement agreement in the appropriate common law court? The question falls for determination in this way. ape rae eo ee my eee A ye te Ge [elosederbate-auanenmeemeatee aerate epee tow cee ny ween en een ere ee nee ee ape ~ = -- woowore 2. An application was filed in the Federal Court on 18 March 1985 by the present applicant. That applicant sought, on the grounds appearing in the accompanying Statement of Claim:- (i) An order declaring the whole of the Contracts of Sale made between the applicant as purchaser and the respondent as vendor dated 21 January 1985, 25 January 1985, and 30 January 1985 respectively, to be void ad initio; (ii) An order that the respondent pay to the applicant the amount of loss or damage suffered by the applicant, including the sum of $68,000.00, which loss or damage resulted from the respondent's misleading or deceptive conduct; (iii) costs. On 8 October 1986, Pincus J. gave leave to the applicant to amend the Statement of Claim and leave to the respondent to make any necessary amendments to the Defence. He also ordered, inter alia, that the applicant's interrogatories be answered on or before 22 October 1986. The Amended Statement of Claim asserted that, in breach of s.52 of the Trade Practices Act 1974, the respondent corporation, in trade or commerce, induced the applicant to enter into the contracts for the purchase of three blocks of land for sums totalling $68,000.00, by the making of representations including the provision of bitumen roads, water, power, the nature of timber on the lands, and other features to be associated with it. It is asserted in the Amended Statement of Claim that the applicant repudiated the contracts on 22 February 1985 and seeks damages for the loss or damage suffered, including the return of the $68,000.00 advanced by way of purchase price for the three blocks of land. qoreereg toe o toe - ~e- Se eiaieeieed Eran ee om an ~ ae Sr oe ee - ey 3. The answers to interrogatories ordered by Pincus J. to be delivered by 22 October 1986 were not delivered, but there was correspondence between the solicitors concerning the disposition of the Federal Court application. On 5 November 1986, the applicant's solicitors wrote to the respondent's solicitors in these terms:- "We refer to the above matter and in particular to recent telephone discussions with your Mr. Channell. We confirm that your client is prepared to recommend to the Board, settlement on the basis of payment to our client of a total of $75,000.00. On our instructions, this conter-offer (sic) is unacceptable. Instead, we propose settlement in the sum of $77,500.00 in full and final satisfaction of our client's claim, payment to be made within seven days. We look forward to receiving your response to the above within seven (7) days." On 8 December 1986, the respondent's solicitors wrote, saying in part:- "We have now received instructions from our client to reject your client's offer of settlement. We will now take steps to answer the interrogatories as a matter of urgency to allow the matter to proceed." On 31 December 1986, the respondent's solicitors wrote, saying inter alia:- yoo we ate ee Le Fe ee ee eee 4 Fi f "We refer to the abovementioned matter and to our recent telephone conversations with your Ms Reynolds. We confirm that we have firm instructions from our client to offer to pay your client an amount of $77,500.00 'all up', the payment to be made on or before the 8th February, 1987. You have responded by stating that your client seeks payment of $20,000.00 by the 5th January, 1987 and the balance by 5th February, 1987. We have written to our client recommending part payment prior to the end of February. The writer will be ahsent from the office until Monday, 5th January, 1987 and we expect to receive our client's instructions on or after that date. Quite frankly, with respect, the offer we are making on our client's behalf to your client is more than reasonable. Should your client reject the offer and make an application to the Court, we reserve the right to produce this letter to the Court on the issue of costs." On 15 January 1987, the applicant's solicitors wrote to respondent's solicitors in these terms:- "We refer to the above matter and confirm that our client has instructed us to accept the offer proposed by you, namely: a. Payment of the sum of $20,000.00 on or before the 23rd January, 1987; b. Payment of the balance of $57,500.00 on or before the 28th February, 1987. We look forward to receiving the Deed of Settlement for our perusal as soon as possible." On 27 January 1987, the respondent's solicitors wrote saying:- the wee ngee <n tree + te. ° hoa te boas ats 5. "We refer to our discussions with your Ms Reynolds in this matter and enclose cheque in the sum of $20,000.00. Please acknowledge receipt." On 28 January 1987, the applicant's solicitors wrote:- "Thank you for your letter dated 27th January, 1987 and enclosed cheque. We note that the Deed of Agreement has not yet been prepared and look forward to receiving same as soon as possible." The matter was mentioned before Mr. Justice Pincus on 10 February 1987, and both the applicant and the respondent were represented by solicitors. His Honour said, after hearing the parties:- "TJ will note that the matter has been settled, and adjourn the application to the registrar." On 20 February 1987, the solicitors for the respondent wrote the solicitors for the applicant in these terms:- "We refer to the abovementioned matter. As requested, enclosed please find Deed of Settlement in duplicate. Would you please have your client sign and date the Deed of Settlement where indicated. We will then forward it to our client for signing and will request our client to arrange for the balance of $57,500.00 to be available on 28th February, 1987." ifow SR et te ern rs fee ren i mee yr eee ea f ' By . roe my so . ' - Va ate rr a 4 7 ho whee ee 6. On 2 March 1987, the applicant's solicitors wrote in these terms:- "Please find enclosed Deed of Settlement, in duplicate, duly signed by our client. Upon execution by your client, would you kindly forward a copy to us. We note that we have not yet received the balance settlement monies and look forward to receiving same without further delay. On 11 March 1987, they again wrote in these terms:- "We refer to the above matter and note that we did not receive any further communication from you regarding payment of the balance of settlement funds of $57,500.00 which was due to be paid on 28th February, 1987. Our client has now instructed us to take action in relation to the compromise reached between the parties. We shall commence such action if the monies owing are not paid to our trust account by bank cheque or your trust account cheque by 5.00 pm on Friday, 13th March 1987. Our client is not prepared to consider any further proposals for payment of the monies owing." Finally, the solicitors for the respondent wrote on 13 March to the solicitors for the applicant in these terms:- "We refer to your letters of llth and 12th March, 1987. We would point out that our clients do not agree that there is any legally enforceable composition entered into with your client in that any settlement is subject to a Deed of Settlement. The Deed of Settlement has not been signed by our clients nor returned to client on his behalf." te ae pe wo seers awe ope "hn Le - te uv Te eee iw eae 7. The Deed of Settlement prepared by the solicitors for « the respondent has been signed by the applicant and witnessed by me eae eee ene. a Justice of the Peace, but has not been executed by the respondent. It says in part:- SMe ery ere gros, "Cc. It has been agreed between the parties that in settlement of their differences and to avoid the costs and expense of litigation that the Second Party pay to the First Party the sum of SEVENTY-SEVEN THOUSAND FIVE HUNDRED DOLLARS ($77,500.00) inclusive of legal costs and interest in full and final settlement of the First Party's claim against the Second Party. ST ee pernigee " ne Lott THIS DEED WITNESSES :- 1. The Second Party hereby agrees to pay to the First Party at Brisbane the sum of SEVENTY-SEVEN THOUSAND FIVE HUNDRED DOLLARS ($77,500.00) on the following basis:- Le (a) Payment of the sum of §20,000.00 on or before the 23rd January, 1987. (b) Payment of the balance of $57,500.00 on or before the 28th February, 1987. 2. The First and Second Parties will each pay 4! their own costs of and incidental to the re preparation, execution and stamping of this Deed. - 3. That neither the First or Second Party to Ls this Deed shall publish, cause to be published or , in any way allow to be published these terms of settlement." '. On 26 March 1987, the applicant filed a Notice of Motion ' seeking orders:- l. That the applicant do have judgment in this action against the respondent for the sum of $57,500.00; 2. The respondent do pay the costs of and incidental to this Motion to be taxed. bq atte Counsel for the applicant contended that it is competent for the Federal Court to make the orders sought in the Notice of Motion. The primary basis of this power was said to be 5.22 of the Federal Court of Australia Act 1976, whichis in these terms:- "The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him in the matter, so that, ag far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided." It was further submitted on behalf of the applicant, though it must be said with some reluctance, that this Court has jurisdiction in its accrued jurisdiction to grant the relief sought or, alternatively, has jurisdiction under the associated jurisdiction conferred by s.32 of the Federal Court of Australia Act 1976. Section 32 provides:- "(1) To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked." The respondent makes two principal submissions. It says that there is at least an issue as to whether in fact the Federal Court proceedings were validly compromised so as to require a hearing on that disputed question and, secondly, and more importantly, submits that, on the assumption that the matter was the subject of a legally enforceable agreement of compromise, the qooar - omer sr — - wae Tv. ry Sallie ilier sale atiedtantdatieed tenet ._— oF 9. Federal Court cause of action was extinguished and replaced by a right to sue on the compromise agreement and, that right being contractual in nature, the Federal Court has no jurisdiction to entertain such a clain. As to the first and factual claim, it is clear that, if there is jurisdiction for the summary enforcement of an agreement compromising the application in the Federal Court by motion in those proceedings, it should only be exercised where the Court is clearly satisfied that justice can be done under the summary procedure: Salt v. Cooper (1880) 16C.D. 544; Roberts v. Gippsland Agriculture and Earthmoving Contracting Co.Pty.Ltd. (1956) V.L.R. 555; and General Credits (Finance) Pty.Limited v. Fenton Lake Pty.Ltd. (1985) 2 Qd.R. 6. As Smith J. observed in Roberts Vv. Gippsland Agricultural and Barth Moving Contracting Co.Pty.Ltd. (supra), at p.564:- "In deciding whether justice can be done under the summary procedure the Court, of course, needs to consider a variety of matters involving questions of degree. These, I think, must include the extent to which extraneous matters are involved, how substantial are the questions to be determined, to what extent questions of credibility are likely to arise, and whether pleadings and discovery may be desirable." ! We gee eee ns ia (ial etedhotenieendinmnnaremm nena aeentd Srna ee os er 10. Here it is suggested that there is a disputed question of fact, namely whether execution of the Deed of Settlement was a condition precedent to the formation of a binding contract and, for that reason, it would be inappropriate for the Federal Court to exercise its summary powers. In Fancourt v. Mercantile Credits Ltd. (1983) 154 C.L.R. 87 at p. 99, Mason, Murphy, Wilson, Deane and Dawson JU. say in their joint judgment:- "The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: see Clarke v. Union Bank of Australia Ltd. (1917) 23 C.L.R. 5; Jones v. Stone £1894] A.C. 122; Jacobs v. Booth's Distillery Co. (1901) 85 L.T. 262. In our view, it is not possible to say without doubt, on the whole of the material, that there is no question to be tried concerning the payment of the deposits by the appellants. The facts which are established are inconclusive, but the respondent, as well as the appellants, was ina position to establish conclusively the payment of the deposits if that fact could be established and, given the opportunity, it did not do so. That leaves, we think, a question to be tried and, although the appellants have not succeeded in positively establishing a defence, they should not in the circumstances be debarred from defending the action." In my view however, whether execution of the Deed of Settlement was a condition precedent to the formation of a binding contract is not a factual matter as can be deposed to, but rather is a question to be answered by reference to what were the dealings between the parties. te Wee aor rnb oe e 8 - . aoe a [ee ee row ee ed Br , oe te atm oe ' ' "ap ot 1l. Subject to the question of jurisdiction, it seems to me on the material presently before me that it cannot seriously he argued that there was no concluded agreement to settle the Federal Court proceedings. I turn now to the question of the jurisdiction of the Federal Court to erforce an agreement compromising an action, by motion in the Federal Court proceedings. Section 22 deals with power and not with jurisdiction. Gibbs J., as he then was, observed in Philip Morris Inc. v. Adam P. Brown Male Fashions Pty.Ltd. (1981) 148 C.L.R. 457 at p.489:- "Section 22 reproduces, with immaterial variations, the provisions of s.43 of the Supreme Court of Judicature (Consolidation) Act 1925 (U.K.) which itself derives from s.24(7) of the Judicature Act 1873 (U.K.), whose provisions have been reproduced with or without amendment in subsequent enactments in the States of Australia as well as in s.32 of the Judiciary Act. The provision, which has been considered in a number of authorities, has been said to mean 'that whenever a subject of controversy arises in an action which can conveniently be determined between the parties to the action, the court should, if possible, determine it so as to prevent further and needless litigation': In the Goods of Tharp (1878) 3 P.D.76, at p.81. In other words, it gave effect to a fundamental principle of the Judicature Act procedure, the avoidance of a multiplicity of proceedings. It has been said, and no doubt rightly, that having regard to the nature and purposes of the provision, it should be construed liberally: Roberts v. Gippsland Agricultural and Earth Moving Contracting Co. Pty. Ltd. [1956] V.L.R. 555, at pp.564-565; McLeish v. Faure (1979) 25 A.L.R. 403, at pp.413-414. Nevertheless the provision does not appear ever to have been regarded as conferring jurisdiction, rather than power, on the court, and in The 'James Westoll' [19051 P. 47, at p.51, it was held that the sub-section 'only enables the High Court and every branch of it to give effect to all the remedies which the parties were, in the language of the solar aaniaulteniac etal ite nen aeenttemeer, om 2 a : - meme yee ee \oese a) Tvs. eo perericrgee set or -0 ' 12. Act, entitled to - that is to say, as could have been given by any court which was made a member of the High Court by the Judicature Act', and that it did not confer jurisdiction upon the High Court to make an order which no court had power to make prior to the Judicature Act. Not only does the history of 3.22 suggest that it deals with power and not with jurisdiction, but the language of the section is in marked contrast to that of s.32(1) which expressly confers jurisdiction on the Federal Court, and does so only to the extent that the Constitution permits, thus recognizing the problems of constitutional validity that may arise when jurisdiction is vested in a federal court. Section 22 applies only 'in every matter before the Court'; in other words, it is assumed that there is a matter which the Federal Court has jurisdiction to hear and determine, and the section, on that assumption, gives the court the power and imposes on it the duty to dispose of the matter completely and finally." His Honour later noted, at p.490, that the position s.22 in the Act:- ",.. supports the view that it is one of a group of sections intended to grant to the Federal Court ample powers to make its jurisdiction effective, rather than to increase the jurisdiction itself." of Mason J., as he was then, (with whom Stephen J., agreed, said at p.505 of s.22:- "It is in terms similar to s.32 of the Judiciary Act 1903, as amended. It in turn was taken from s.24(7) of the English Supreme Court of Judicature Act, 1873, a provision which was designed to eliminate multiplicity of actions and to ensure that the High Court of Justice would grant both legal and equitable relief in the same proceedings. The language of s.22 is not appropriate to a grant of jurisdiction. But it is quite appropriate to confer power to grant relief in proceedings in which the Court's jurisdiction is derived from another source, as the reference to 'in respect of alegal or equitable claim properly brought forward by him' so _ strongly indicates. Quite evidently s.22 does not operate ' th 13. to vest jurisdiction in the Federal Court ~- see Thomson Australian Holdings Pty.Ltd. v. Trade Practices Commission (1981) 148 C.L.R. 150. Section 32(1) stands in a different position. It provides: 'To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked.' Plainly it was intended to vest a jurisdiction in the Federal Court to hear and determine matters not otherwise within its jurisdiction, matters that are 'associated with matters in which the jurisdiction of the Court is invoked'. The expression 'To the extent that the Constitution permits suggests that s.32 is directed, not merely to jurisdiction to hear and determine matters arising under federal laws not otherwise vested in the Federal Court, but also to jurisdiction arising under State or other non-federal laws. Problems of constitutional validity arise in relation to the latter, but not in relation to the former. The opening words of s.32(1) would serve no purpose at all if the sub-section was exclusively directed to matters arising under federal laws." Murphy J. observed at p.519:- "The effective operation of the federal courts would be impossible if the jurisdiction were so fragmented that a court could not settle all aspects of a case which had attracted federal jurisdiction." Aickin J., at p.529 said concerning s.22:- "It is in my opinion clear beyond any simply as a matter of construction s. doubt that 22, either alone or in combination with other Acts, does not purport to confer jurisdiction on the Federal Court. It does no more than confer powers on that Court to grant appropriate relief in any case properly within the Court's jurisdiction.... It is a section concerned to ensure that remedies in ee ee , - N ere 14. respect of both lcgal and cquitablic claims should be available without multiplicity of proceedings. It has never been held, nor indeed suggested, that those sections confer jurisdiction. " Counsel for the respondent referred to Fencott v. Muller (1982-83) 152 C.L.R. 570, where Mason, Murphy, Brennan and Deane JJ. at p.606 said:- "The proposition that a matter may include a cause of action arising under a non-federal law, though denied in the dissenting judgments, is the ratio decidendi of Philip Morris. It follows that the ambit of a matter arising under a federal law may extend beyond claims which arise under that law or which are to be determined by reference to that law alone. As Windeyer J. said in Felton v. Mulligan (1971) 124 C.L.R., at p.393: 'The existence of federal jurisdiction depends upon the grant of an authority to adjudicate rather than upon the law to be applied or the subject of adjudication.'" And at p.607 their Honours said:- "Perhaps it is not possible to devise so precise a formula that its application to the facts of any controversy would determine accurately what claims are disparate and what claims are not. Whatever formula be adopted as a guide - and the formula of 'common transactions and facts' is a sound guide for the purpose - it must result in leaving outside the ambit of a matter a 'completely disparate claim constituting in substance a separate proceeding' (per Barwick C.J. in Felton v. Mulligan (1971) 124 C.L.R., at p.373), a non-federal matter which is 'completely separate and distinct from the matter which attracted federal jurisdiction' (per Murphy J. in Philip Morris (1981) 148 C.L.R., at p. 521 or 'some distinct and unrelated non-federal claim' (per Stephen, Mason, Aickin and Wilson JJ. in Moorgate Tobacco (1980) 145 C.L.R., at p.482.)" Ser meg ne oe ¥ wey aera EN prt opt cope a "7 ¥ ate ee sen ey eee 15. Here it is submitted by the respondent that the claim for judgment based on the agreement to settle the Federal Court matter is such a claim as is variously described in that passage. In Pallas v. Finlay (1985) 61 A.L.R. 220, Dr. Finlay had alleged against a company, Lincoln Hunt Australia Pty.Ltd. that, as a result of representations made on behalf of the company, he had been induced to enter into two contracts contrary to ss.52 and 53 of the Trade Practices Act 1974, When the hearing was part heard, the learned trial judge was told that the parties had settled the matter. The parties, that is to say Dr. Finlay and Lincoln Hunt Australia Pty.Ltd., their counsel, and the appellants, Mr. Pallas and Mr. Dubinski-Hunt, signed terms of settlement which included provision that Dr. Finlay should he paid the sum of $150,000.00 in full settlement of the clain, cross-claim and costs; that Pallas and Dubinski-Hunt should be personally, jointly and severally liable for payment of the said sum to Dr. Finlay's solicitors on or before 19 April 1985 and, inter alia, it provided:- "In default of payment of the said sum in accordance with the terms hereof the applicant (Dr. Finlay) shall be entitled to enter judgment against Pallas and Dubinski-Hunt for the sum of $150,000.00 and they will agree to be joined for that purpose." Payment was not made, and Dr. Finlay applied to add Pallas and Dubinski-Hunt as respondents to the principal proceedings for the purpose of seeking at a later date that judgment be entered for him against Pallas and Dubinski-Hunt in the sum of $150,000.00. Leave was granted to join those persons as respondents in the vorrei ot ern vos foxes =N © a ee 2 rey ETOP De TT ° ese ee yates 16. proceedings and leave was also given to file a Notice of Motion seeking judgment against them. On return of that application, judgment was ordered in the sum of $150,000.00 against Pallas and Dubinski-Hunt jointly and severally. On appeal, the Full Court, constituted by Northrop, Lockhart and Beaumont Jd., held that this Court lacked jurisdiction to make the orders for judgment. Beaumont J., with whom Northrop and Lockhart UJ. agreed, said at p. 222:- "Although it may have been open to Dr. Finlay to do so at any time before entry into the compromise, until the present application was made, Dr. Finlay made no attempt to join the appellants as parties to the proceedings for the purpose of seeking relief pursuant to s.75B of the Trade Practices Act or otherwise. As framed at the time of the compromise, the proceedings were brought against Lincoln Hunt Australia Pty. Ltd. alone. When those proceedings were settled, there was agreed to be subsituted for the statutory causes of action brought against Lincoln Hunt Australia Pty.Ltd. a fresh cause of action in contract against the appellants alone." And later:- ",..-the agreement embodied in the terms of settlement is the sole source of the respective rights and obligations of the parties. The only cause of action available to Dr. Finlay against the appellants is one based on that contract of compromise. That cause of action arises under the general law and not under the Trade Practices Act or under any other statute in respect of which jurisdiction is conferred upon this Court." Importantly for present purposes, he later said at p. 223:- 17. "The position may well have been different if the appellants had been joined in the proceedings on the footing that they were involved in the contraventions; or, if, before suit, the appellants had agreed to give Dr. Finlay an indemnity in respect of the loss he now claims to have suffered. In those situations, as the decision in Fencott v. Muller demonstrates, the accrued jurisdiction of the Court, if not the associated jurisdiction under s.32 of the Federal Court of Australia Act, 1976 may well have been attracted." In my opinion, the last quoted remarks of Beaumont Jd. are presently apposite. The Federal Court proceedings have not been stayed, struck out or discontinued. The agreement between the parties is that the respondent will pay $77,500.00 in settlement of the matter. An amount of $20,000.00 has in fact been paid. There is here no question of further parties and, in my opinion, Pallas v. Finlay (supra) is distinguishable. There is here no question of a compromise of the proceedings on the promise by strangers to the proceedings to pay a sum of money to the applicant. The agreement was that the proceedings would be settled by the payment of $77,500.00 in the agreed way. The Federal Court action was not exchanged for a promise to pay $77,500.00. The Federal Court proceedings being still on foot, in my opinion not having been extinguished by the agreement between the parties, it is competent for the Court to deal with the question of summary judgment on motion in those proceedings. seaptedahamiaia ee eee "a ' : paar wen gtr ere meee 18. In my view it is difficult to imagine a matter more closely associated with the Federal Court matter than the method of its disposition. It remains to consider whether it is appropriate to do so. The extent of the jurisdiction to enforce an agreement of compromise upon a motion in the action, and the principles upon which the Court should act when exercising such a jurisdiction, were considered with deep scholarship by Smith J. in Roberts v. Gippsland Agricultural and Earth Moving Contracting Co.Pty.Ltd. (supra), a judgment accurately described by Tadgell J. as "illuminating" in Koutsouradis v. Koutsouradis (1983) 2 V.R. 487, and of which Lowe and O'Bryan JJ. said in Roberts, at p. 558:- "When it becomes necessary to determine what are the limits to the enforcement by motion in the action of a compromise of the matters involved therein the careful and critical examination in the judgment of Smith J. of the principles involved and of the decisions cannot fail to be of great assistance." The jurisdiction derived from the old Court of Chancery, and is available to this Court pursuant to s.22 of the Federal Court of Australia Act 1976. As the judgment of Smith J. indicates, the fundamental principle in determining whether an agreement should be enforced summarily is that the summary procedure should be confined within such limits as justice | required, that requirement being exemplified by Smith J. in the ro > 1m a 4m apes ane Seer 2 78 "one 19. various rules of practice he enumerated. In particular "The Court would ordinarily leave a party to proceed by separate bill if the agreement involved matters extraneous to the suit compromised", and "on the other hand in cases not falling within this first general category, the Court would ordinarily enforce the agreement in the suit compromised". Further, "If there was a substantial question to be determined as to what were the terms of the agreement, or as to whether it was valid or specifically enforceable, as for example where a substantial case was put forward of material Mistake or of other circumstances such as would afford a defence to a suit for specific performance, a party would ordinarily be left to proceed by separate bill so that the matters raised might be fully investigated ..." And, "The fact that the only outstanding obligation under the agreement of compromise was one for the payment of an ascertained sum of money did not preclude the Court from enforcing the agreement in the suit...." In my opinion, in this case, every consideration of justice and efficiency inclines to the making of the orders sought in the motion. I give judgment for the applicant against the respondent in the sum of $57,500.00; the respondent to pay the costs of the motion to be taxed. | certify that this anc the 1S preceding Pages are a true copy of the reasons for judgment herein of H is our Mr. Justice Spender Was nb 23 [ 6 if v7 Associate Dated wer es, _ Pelee ope: