Carroll v Clarence Valley Shire Council (No 2)
[2012] FCA 1259
•9 November 2012
FEDERAL COURT OF AUSTRALIA
Carroll v Clarence Valley Shire Council (No 2) [2012] FCA 1259
Citation: Carroll v Clarence Valley Shire Council (No 2) [2012] FCA 1259 Parties: LORRAINE CARROLL, D WERNER, B PAINE, A PAINE, C PAINE, H PAINE, J DUFFICY, N DUFFICY, S EVERSON and SJ EVERSON v CLARENCE VALLEY SHIRE COUNCIL File number: NSD 1102 of 2012 Judge: EMMETT J Date of judgment: 9 November 2012 Legislation: Corporations Act 2001 (Cth)
Federal Court of Australia Act 1976 (Cth) Part IVA
Federal Court Rules 2011 Rule 26.12Date of hearing: 9 November 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 8 For the plaintiffs: L Carroll Counsel for the respondent: G Dilworth Solicitor for the respondent: Burridge, Harris & Flynn
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1102 of 2012
BETWEEN: LORRAINE CARROLL
PlaintiffAND: CLARENCE VALLEY SHIRE COUNCIL
Defendant
JUDGE:
EMMETT J
DATE OF ORDER:
9 NOVEMBER 2012
WHERE MADE:
SYDNEY
THE COURT:
1.RESCINDS orders 1 and 2 made on 7 September 2012.
2.DECLARES that the notice of discontinuance filed by the first applicant on 10 September 2012 be effective to discontinue the proceeding on behalf of all applicants.
3.ORDERS that the first applicant, Ms Carroll, pay the costs of the defendant/respondent, the Clarence Valley Shire Council, up to and including 10 September 2012.
4.ORDERS that the applicant on the notice of motion of 16 October 2012, Ms Carroll, pay the respondent’s costs of that notice of motion.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1102 of 2012
BETWEEN: LORRAINE CARROLL
PlaintiffAND: CLARENCE VALLEY SHIRE COUNCIL
Defendant
JUDGE:
EMMETT J
DATE:
9 NOVEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This proceeding was commenced as a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act). The applicants named in the originating application included Ms Lorraine Carroll and nine others. The respondent named was Clarence Valley Shire Council (the Council). On 7 September 2012, I ordered that the proceeding be dismissed and I ordered that the applicants pay the respondent’s costs. However, I ordered that those orders be stayed until today. The orders that I then made would have extended to all of the applicants.
On 7 September 2012, I held provisionally, that the Council is an exempt public authority and is therefore not a corporation within the meaning of the Corporations Act 2001 (Cth). The reason for the stay was to enable Ms Carroll to make further submissions if she wished as to the question of whether the Council is a corporation. Because Ms Carroll had not had sufficient time to consider the question, I directed that the Council file submissions as to whether it is a corporation, and that the applicants file any submissions in response. There was also a direction to the Council to file submissions in reply. The purpose was for me to determine whether the provisional view that I had formed that the Council was not a corporation was correct.
In the meantime, however, Ms Carroll filed a notice of discontinuance. The notice of discontinuance was accepted by the Registry. The Council pointed out that, because the proceeding had been commenced under Part IVA of the Federal Court Act, there could be no discontinuance without the leave of the Court. The Council indicated that it would consent to discontinuance if the applicants agreed to pay its cost of the proceeding. In any event the Council indicated that, if the notice of discontinuance was effective, it asked for its costs under Rule 26.12(7), which provides that unless the terms of a consent or an order of the Court provide otherwise, a party who files a notice of discontinuance is liable to pay the costs of each other party to the proceeding in relation to the claim, or the part of the claim, that is discontinued.
Ms Carroll was informed that there was a deficiency in relation to her notice of discontinuance, in so far as the proceeding had been brought under Part IVA and the leave of the Court had not been obtained. Ms Carroll then filed a notice of motion, which was made returnable today. While Ms Carroll sought that the motion be returnable instanter, that order was not made and I directed that the proceeding be listed for hearing today.
The substantive orders sought in the notice of motion were as follows:
(2)The proceeding remain discontinued without costs against any of the applicants;
(3)With leave of the Court, the served discontinuance is permitted for all of the applicants without costs, save the first applicant, Ms Carroll;
(4)In the event that order (3) is made, the first applicant seeks leave to amend the originating application and be permitted to file a new statement of claim.
As I understand the position of the Council, it does not wish to be heard further on the question of whether or not the applicants, other than Ms Carroll, should be ordered to pay costs. It is not entirely clear precisely what Ms Carroll seeks by her notice of motion. However, it seems to me that the interests of justice are best served by directing that the notice of discontinuance stand, subject to the question of the Council’s. In light of the stance taken by the Council concerning the other applicants, I consider that it is appropriate to vary the orders made on 7 September 2012.
I propose to direct that the notice of continuance be treated as effective. However, I consider that it is appropriate that Ms Carroll be ordered to pay the Council’s costs of the proceeding up to and including the date of the notice of discontinuance. I also consider that it is appropriate that Ms Carroll pay the Council’s costs of her notice of motion.
The orders that I propose would not prevent Ms Carroll from commencing a fresh proceeding, if she is so advised, seeking such relief as she wishes in relation to the matters which were the subject of the proceeding. I make it clear that I have not considered at all the merits of the substantive claims made by Ms Carroll against the Council concerning the manner in which the Council has dealt with the land to which Ms Carroll claims to be entitled. The only matter of substance on which I have expressed a view is that the Council appears to me to be a public authority, and therefore is not a corporation.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 13 November 2012
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