Tongue v Council of the City of Tamworth

Case [2005] FCA 124

FEDERAL COURT OF AUSTRALIA

Tongue v Council of the City of Tamworth [2005] FCA 124

TERENCE RODNEY TONGUE v COUNCIL OF THE CITY OF TAMWORTH
NG 425 of 1998

JACOBSON J
18 FEBRUARY 2005
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 425 of 1998

BETWEEN:

TERENCE RODNEY TONGUE
APPLICANT

AND:

THE COUNCIL OF CITY OF TAMWORTH
RESPONDENT

JUDGE:

JACOBSON J

DATE OF ORDER:

18 FEBRUARY 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.It is in the interests of justice that the proceeding no longer consider under Part IVA of the Federal Court Act 1976 (Cth) (“the Act”) as a representative proceeding, pursuant to s33N(1); and

2.The proceedings are dismissed, pursuant to s33N(2) of the Act.

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
APPLICANT

AND:

THE COUNCIL OF CITY OF TAMWORTH
RESPONDENT

JUDGE:

JACOBSON J

DATE:

18 FEBRUARY 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. I gave a judgment in this matter on 21 December 2004.  I refered at [55] of the judgment to the orders that I made on that day.  The orders included a direction to Reganam Pty Limited (“Reganam”), a group member who sought orders that it be substituted as the representative party, to give a notice to group members. 

  2. I indicated in the judgment that if Reganam is not prepared to become a representative party free of a condition immunising it from liability for costs incurred prior to the date of joinder, or if no other objector was prepared to be substituted as the representative party, it was likely that I would make an order under section 33N of the Federal Court Act 1976 (Cth) (“the Act”) that the claims cease to be pursued as a representative proceeding.

  3. I have evidence before me today that Reganam is not prepared to become a representative party without the condition immunising it from liability for costs incurred prior to the date of joinder. 

  4. Notwithstanding the notice which I directed on the last occasion, no person has come forward indicating that he or she is prepared to be substituted as a representative, or indeed to become a party to the proceedings as an individual applicant as would be contemplated by section 33P(b) of the Act.

  5. In those circumstances I am satisfied that it is in the interests of justice to make an order under section 33N(1) that the proceeding no longer continue under Part IVA of the Act as a representative proceeding. 

  6. I am also satisfied that it is appropriate to make an order pursuant to section 33N(2) of the Act dismissing the proceeding. 

  7. Accordingly, those are the orders of the Court.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             23 February 2005

Counsel for the Applicant: Mr J E Rowe
Solicitor for the Applicant: Long Howland Houston
Counsel for the Respondent: Mr D Officer QC and 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: 18 February 2005
Date of Judgment: 18 February 2005
Details
AGLC
Tongue v Council of the City of Tamworth [2005] FCA 124
Case
[2005] FCA 124
Decision Date

CaseChat Overview and Summary

The case of Tongue v Council of the City of Tamworth involved a dispute brought by the plaintiff against the defendant local council. The plaintiff sought to represent a class of residents affected by council decisions concerning the installation of speed humps on residential streets. The plaintiff argued that the council's actions were unlawful and sought relief under Part IVA of the Federal Court Act 1976 (Cth). The matter was heard in the Federal Court of Australia.

The central legal issues before the court were whether the proceeding could be considered a representative proceeding under Part IVA of the Federal Court Act 1976 (Cth), and if so, whether it was in the interests of justice for the proceeding to continue as such. The court had to determine if the plaintiff had standing to bring the proceeding on behalf of the class of residents and if the proceeding met the criteria for a representative proceeding. Additionally, the court needed to assess whether the proceeding should be dismissed under the Act.

The court found that the proceeding was not suitable to be considered a representative proceeding under Part IVA of the Federal Court Act 1976 (Cth). The court reasoned that the plaintiff did not have the necessary standing to represent the class of residents and that the proceeding did not meet the criteria for a representative proceeding. The court concluded that it was in the interests of justice for the proceeding to no longer be considered as such. Consequently, the court dismissed the proceeding under s33N(2) of the Act. The court found that the proceeding did not satisfy the requirements for a representative proceeding, and therefore, the matter was no longer tenable under the Act.

Orders

Orders of the court

1. It is in the interests of justice that the proceeding no longer consider under Part IVA of the Federal Court Act 1976 (Cth) (“the Act”) as a representative proceeding, pursuant to s33N(1); and

2. The proceedings are dismissed, pursuant to s33N(2) of the Act.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JACOBSON J

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Ratio Decidendi

Legal Principle Established

Established by: JACOBSON J

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