Tongue v Council of the City of Tamworth [2004] FCA 33

FEDERAL COURT OF AUSTRALIA

Tongue v Council of the City of Tamworth [2004] FCA 33 TERENCE RODNEY TONGUE v COUNCIL OF THE CITY OF TAMWORTH NG 425 OF 1998 ALLSOP J 29 JANUARY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 425 of 1998

BETWEEN: TERENCE RODNEY TONGUE

APPLICANT

AND: COUNCIL OF THE CITY OF TAMWORTH

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 29 JANUARY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the respondent be granted leave to amend the amended defence in terms contained within the facsimile from Mr J M Hennessey to the associate to Allsop J on 12 December 2003 in terms that are annexure 2 to the reasons for these orders; 2. the hearing of the notice of motion filed 1 December 2003 stand over to a date to be fixed; and 3. the costs of the applicant in relation to the argument as to the amendment sought in Mr Hennessey's facsimile be the applicant's costs in the notice of motion. 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: COUNCIL OF THE CITY OF TAMWORTH

RESPONDENT

JUDGE: ALLSOP J

DATE: 29 JANUARY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 10 December 2003 I heard argument on a separate question or questions thrown up by the pleadings. The questions were thrown up by [41] to [46] of the Amended Statement of Claim, [22] to [26] of the Amended Defence to Amended Statement of Claim and the whole of the reply to that Amended Defence. (Those parts of the pleadings are annexed to those reasons as annexures 1A, 1B and 1C, respectively.) 2 The separate issue was identified in a notice of motion filed in Court on behalf of the applicant on 1 December 2003. That notice of motion sought the following orders: 1. The Court determine as a separate question under O 29 r 2 whether the respondents have [sic: respondent has] validly terminated the agreement to settle the proceedings as alleged in paragraphs 22 to paragraphs 26(g) of the respondents [sic: respondent's] amended defence. 2. Costs (It will become necessary in due course to draft a somewhat more appropriately worded order.) 3 The gist of the debate in these paragraphs of the pleadings is that the applicant says the matter has been settled. The respondent, whilst conceding that there was a settlement agreement reached, says that it is no longer binding on the parties. This is a less than precise way of expressing the respondent's contentions. They were more precisely set out in the amended defence. Broadly speaking, the respondent says that in the light of the significant opposition to the settlement of objectors numbering about half the class the respondent is released from its obligation to settle. The respondent does not want now to settle the case with the applicant and pay money pursuant to the settlement, at the same time possibly face litigation with half the class which remains disaffected. The respondent says that since the first day of the approval hearing earlier in 2003 the claims and complaints have been expanded by the objectors through the evidence led on their behalf to an extent not previously anticipated. 4 On 10 December 2003 evidence was led and argument took place before me as to the separate issue. It became evident in discussion between bench and bar that there may be room for an amendment to the amended defence so as better to reflect the debate that had taken place. To allow for that amendment I made an order at the end of the hearing on 10 December that the respondent provide by facsimile to my chambers by 5 pm on 12 December any draft amendment to paragraph 26 of the amended defence and any accompanying supplementary written submissions. On 12 December Mr Hennessey, junior counsel for the respondent, sent to my chambers, (with copies to the other parties) a further amended defence. I have annexed a copy of paragraphs 22 to 26 of this document to these reasons as annexure 2. The amendments are underlined. It can be seen that in paragraph 26 the old sub-paragraph (b) has been moved to become sub-paragraph (d) (and (c) to become (e)) and new sub-paragraphs (b) and (c) have been added. Also, new sub-paragraphs (j) and (k) have been inserted. It is to be noted that the particulars subjoined to sub-paragraph (d) have not been expanded. No further submissions were filed by the respondent on 12 December 2003. 5 On 10 December 2003, I also ordered the applicant to inform the Court, by facsimile to my chambers by 5.00 pm Friday 19 December 2003, if the respondent's proposed amendment was opposed. If it were to be opposed, I gave liberty to restore the matter on Tuesday 23 December 2003. The proposed amendment was said to be opposed by facsimile from the solicitors for the applicant sent on 19 December 2003. That letter is attached to these reasons as annexure 3. 6 I listed the matter on 23 December 2003 and made the following orders: (a) That the applicant and the respondent file and serve on 19 January 2004 any further evidence and submissions on the application to amend the defence. (b) That the matter be stood over until 29 January 2004 for judgment on the application to amend the defence and also directions. 7 The applicant has filed further submissions as to the amendment. I have received no submissions from the respondent. Mr Tongue, the applicant, and Mr Long, the solicitor for the applicant, have filed affidavits dated 19 January and 20 January 2004, respectively. In the affidavit of 19 January 2004, Mr Tongue said that he did contemplate and assume on 17 July 2002 that the pleadings and particulars filed and served before 17 July 2002 identified the nature and extent of dispute between the parties. He referred to his statement in September 1998. However, he also stated that he did not contemplate and assume on 17 July 2002 the matters alleged in paragraphs 26(b)(ii), (iii), (iv) of the proposed Further Amended Defence. After referring to statements made at a mediation which I do not propose to repeat, Mr Tongue stated that after agreement was reached that day he had no knowledge of how each group member would receive it when advised of the settlement as the terms of the settlement had not been put to the group before he went to the mediation. Mr Tongue also said that at the mediation, at no stage, did he say or imply what opposition there would be to this settlement. He further says that there was discussion that there would be opposition. 8 Mr Long is the solicitor for the applicant. He said in his affidavit that he did contemplate and assume on 17 July 2002 that the pleadings and particulars filed identified the nature and extent of the dispute. However, he said that he did not contemplate and assume on 17 July the matters set out in sub-paragraph 26(b)(ii), (iii) and (iv). 9 Mr Rowe, of counsel, who appears for the applicant filed five pages of submissions concerning these proposed amendments. I do not propose to go through all the matters raised by Mr Rowe. He says that the pleading is demurrable in its form as not raising a defence, but only raising a question of admissibility of evidence. I do not accept these submissions. His submissions also go the merits of the success of the amendment to the defence. That is a separate question. No prejudice is pointed to in allowing the amendment. Mr Long and Mr Tongue have filed evidence. I propose to allow the amendment and to set the matter down for any further debate or argument about the separate issue.