Memorandum of consent order (Form 49)

Rule 53 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) lets the parties consent to the court giving a judgment, or making an order whether or not it was applied for, by signing a memorandum in the approved form and lodging it. Form 49 is that memorandum. Once it is lodged, a registrar may make the orders or give the judgment consented to (r 54(1)), but a registrar must not make an order adjourning the trial or extending the time for complying with a rule, practice direction or court order (r 54(2)). Where only one party's consent is needed for something, a separate notice of consent is used instead (r 55).

When you need it

• The parties have settled the claim and want judgment entered, or the claim dealt with, in agreed terms. The court's notes on the consumer/trader claim form suggest this where the parties reach agreement.
• The parties agree on an order in the case and want it made without a contested hearing.
• The parties want an early pre-trial conference: an application under r 39(1) must be accompanied by a memorandum of consent signed by the parties (r 39(2)(b)).

1. 1

   Copy the heading

   Enter the registry, case number, claimant and defendant from the case.

2. 2

   Write the orders in full

   Under "We the parties to this case consent to orders being made in the following terms", set out each order as a separate numbered paragraph: who is to pay what to whom and by when, any instalments, what happens to the claim and any counterclaim, and costs.

3. 3

   Each party signs and dates

   The claimant or claimant's lawyer and the defendant or defendant's lawyer each sign and date the memorandum. Rule 53 requires the parties to sign, so if there are other parties, such as a third party, they need to sign too.

4. 4

   Leave the registrar's section blank

   The "Orders made in the terms set out above" section is completed by the registrar when the orders are made.

5. 5

   Complete the lodged-by panel

   Tick who is lodging and give an address for service and contact details.

• Lodge through the eCourts Portal (r 98C). A consent to the court doing anything must be signed and lodged in PDF format, and the signed copy kept (r 98E(4)(b), (5) and (6)).
• A registrar can make the orders without a hearing (r 54(1)). Orders that adjourn the trial or extend a time limit are outside the registrar's power under r 54(2).
• Check the current fee schedule for any fee before lodging.

• Write orders that can be enforced without argument: exact amounts, due dates and the name of each party. Vague terms make enforcement harder.
• If the deal includes payment by instalments, say what happens if a payment is missed.
• Settlements of claims by or against a person under a legal disability, such as a child, need the court's approval and an affidavit from an independent lawyer, so a consent memorandum alone is not enough (r 56).