Consent judgment (in the context of litigation)

If parties to a court proceeding are able to reach an agreement regarding terms of settlement or otherwise, an application can be made to the Court for the entry of consent judgment. It only applies in civil proceedings and is usually part of a settlement. Rule 36.1A(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) relevantly provides that:

The court may give judgment, or order that judgment be entered, in the terms of an agreement between the parties in relation to proceedings between them.

Importantly, only in certain situations will a court allow for consent judgment to be entered that includes an order to restrict the disclosure of the terms of the judgment or order. Any application by a party to include a non-disclosure order needs to be considered by a judicial officer, rather than a Registrar. Rule 36.1A(2) of the UCPR relevantly provides that:

Unless the court, for special reasons, otherwise orders, the court must refuse to give judgment, or order that judgment be entered, in terms that restrict, or purport to restrict, any disclosure of the terms of the judgment or order.

However, the Court does not merely “rubber stamp” the consent judgment. It must first consider whether it should make the orders that the parties have consented to. In Kalyk v Whelan (unreported, NSW Sup Ct, Young J, 31 July 1985), the judgment outlined situations where a court is not obliged to make the orders as requested by the parties. These include:

  1. Where there is an order involving procedure;
  2. Where orders do not accord with legal principles or are vague and uncertain;
  3. Where there is no jurisdiction to make order. The Court must assess jurisdiction independently and be satisfied that it has jurisdiction. Jurisdiction cannot be conferred by consent;
  4. Where there is a condition precedent for the exercise of jurisdiction to be proved or the court is responsible for making decision (as according to legislation) or
  5. Where the public interest that the Court makes the decision.

The relevant form to be filed with the Court is “Form 44” and must be signed by both parties or their legal representatives. Consent judgment also can be applied for in open court, in the absence of the document being filed, so long as the terms of the agreement are recorded by the court.