Tongue v Council of the City of Tamworth
[2004] FCA 1472
•12 NOVEMBER 2004
FEDERAL COURT OF AUSTRALIA
Tongue v Council of the City of Tamworth [2004] FCA 1472
TERENCE RODNEY TONGUE v COUNCIL OF THE CITY OF TAMWORTH
NG 425 OF 1998JACOBSON J
12 NOVEMBER 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 425 OF 1998
BETWEEN:
TERENCE RODNEY TONGUE
APPLICANTAND:
THE COUNCIL OF CITY OF TAMWORTH
RESPONDENTJUDGE:
JACOBSON J
DATE OF ORDER:
12 NOVEMBER 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The form and content of the notice to group members regarding the application of withdrawal, produced pursuant to section 33X of the Federal Court of Australia Act 1976 (Cth) (“the Act”) and despatched on 20 October 2004, is approved with effect from 20 October 2004, pursuant to section 33Y(2) of the Act.
2.The application of the objectors for an adjournment, filed by notice of motion on 8 November 2004, is granted.
3.The hearing of the application for withdrawal is adjourned to 15 December 2004 at 10.15am.
4.The applicant to file and serve written submission by 3 December 2004, outlining, inter alia, the basis upon which the order stated in the notice of motion filed on 14 September 2004, is sought. That is, in particular, whether the applicant relies on section 33V or 33W or another relevant section or rule.
5.The objectors are to file and serve written submissions by 8 December 2004.
6.The respondents are to file written submissions on these questions and on their position with respect to the application by 13 December 2004.
7.Filing of any motion for substitution of a group representative, and any affidavits in support to be filed by 8 December 2004.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 425 OF 1998
BETWEEN:
TERENCE RODNEY TONGUE
APPLICANTAND:
THE COUNCIL OF CITY OF TAMWORTH
RESPONDENT
JUDGE:
JACOBSON J
DATE:
12 NOVEMBER 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is a representative proceeding brought under Part IVA of the Federal Court of Australia Act 1976 (Cth) (“the Act”). The history of the matter has been set out in a number of judgments of Allsop J, including in particular, his judgment of 23 March 2004, Tongue v Council of the City of Tamworth [2004] FCA 209 and his Honour's judgment of 28 July 2004, Tongue v Council of the City of Tamworth [2004] FCA 972. In the judgment of 28 July 2004 his Honour declined to approve a settlement of the proceedings under section 33V of the Act.
However, by a notice of motion filed on 14 September 2004 the applicant, Mr Tongue, has sought an order pursuant to section 33W of the Act that he cease to be the representative party in these proceedings.
The applicant has filed affidavit evidence in support of the application. The affidavit makes a compelling case for discontinuance in the light of Mr Tongue's deteriorating health, and reference was also made to the ill health of the applicant's wife. Counsel for the objectors, Mr Clarke, has informed me today that there will be no opposition to the applicant withdrawing as the representative and the only question which will arise on the hearing of the motion is the substitution of another representative party or alternatively, the discontinuance of the proceedings.
The objectors seek an adjournment of the hearing of the application for Mr Tongue to discontinue as the representative, the reasons are set out in two affidavits of Mr Simon Kellagher, whose company is one of the group members. Mr Kellagher's affidavits were sworn on 8 November 2004 and 12 November 2004 respectively. The effect of what is set out in the affidavits is that the mail in the Dungowan region is somewhat slow and unreliable. A notice sent to group members in accordance with section 33X of the Act was mailed on 20 October 2004 but between 28 October and 1 November 2004 the evidence discloses that at least four people had not yet received the notice.
Mr Kellagher has stated in his affidavits that he is considering applying either for himself or his company to be substituted as the representative party but he needs further time to arrange funding for the costs of conducting the proceedings and also, no doubt in light of the provisions of section 43(1A) of the Act, to secure his position in the event that the proceedings are unsuccessful.
Having regard to the provisions of section 33W(4)(a) and (b), and in light of the concession very fairly made on instructions, by Mr Clarke, that there would be no opposition to Mr Tongue's withdrawal, it seems to me that it is appropriate to grant an adjournment. This would enable the matters referred to in section 33W(4), and in particular, section 33W(4)(b), to be determined at an appropriate time. I have discussed with the parties a suitable date for the application to be heard and I will adjourn the hearing of Mr Tongue's application to 15 December 2004.
In the course of arguing the adjournment application, counsel for the objectors drew my attention to the fact that the parties had failed to appreciate at the time when I made orders on 23 September 2004, that the form and content of the notice under section 33X is required to be approved by the court; see section 33Y(2).
The notice, as I have said, was mailed on 20 October 2004. I was provided with a copy of the document today. I am satisfied that the form and content of the notice are sufficient to bring to the attention of group members the matters necessary to be considered on the hearing of the substantive application.
It seems to me that there is nothing on the face of section 33Y(2) which precludes the court from approving the form and content retrospectively. In any event, the court has wide powers under section 33XF to make any order the court thinks appropriate or necessary to ensure that justice is done in the proceeding.
The form and content were settled between the parties pursuant to the orders I made on 23 September 2004, and it seems to me to be appropriate that I now make an order under section 33Y(2) approving the form and content of the notice despatched on 20 October 2004.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate:
Dated: 15 November 2004
Counsel for the Applicant: Mr J E Rowe Solicitor for the Applicant: Long Howland Houston Counsel for the Respondent: Mr J M Hennessy Solicitor for the Respondent: Deacons Counsel for Mr S Kelleher and others (the objectors): Mr J R Clarke Solicitor for Mr S Kelleher and others (the objectors): Woolf Associates Date of Hearing: 12 November 2004 Date of Judgment: 12 November 2004
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