WATKINS v MARSHALL [1988] NSWCA 170

WATKINS v MARSHALL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and CLARKE JJA 17 October 1988, 17 October 1988

[1988] NSWCA 170

LEGAL PRACTITIONERS — barrister — consent order settles equity suit — party alleges outside actual authority of counsel — whether within ostensible authority of counsel — whether within issues for trial in suit — whether leave should be granted to appeal to have consent order set aside in the interests of justice — held: (discussing summons for leave to appeal) Having regard to the facts disclosed in the evidence leave should be refused. ORDERS 1. Summons for leave to appeal dismissed 2. Claimants to pay the opponents' costs.

Kirby P The Court has given consideration to the submissions which have been urged upon it. However it is of the opinion that this is not a matter in which leave to appeal should be granted. The issue of the limits of the apparent authority of counsel would not appropriately be tested in a case in which the facts are as disclosed in this case. Cf Harvey v Phillips (1956) 95 CLR 235. As well, the claimants require an extension of time within which to bring their summons. The passage of time which took place between the consent order made by Kearney J and the application for leave to appeal is such that it provides another reason why the Court should not now permit the matter to be ventilated by way of appeal.

In saying that, the Court necessarily says nothing about any other remedies which may be available to the claimants. In particular our decision does not affect any remedies that may be available by way of application to the Equity Division or to Kearney J or any other civil proceedings that may be available to the claimants in the circumstances which have been disclosed.

The summons for leave to appeal is dismissed. The claimants must pay the opponents' costs.