Tongue v Council of the City of Tamworth [2004] FCA 209

FEDERAL COURT OF AUSTRALIA

Tongue v Council of the City of Tamworth [2004] FCA 209 TERENCE RODNEY TONGUE v COUNCIL OF THE CITY OF TAMWORTH NG 425 OF 1998 ALLSOP J 23 MARCH 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: 23 MARCH 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Within 7 days the parties file an agreed draft minute of order conformable with these reasons under Order 29 of the Federal Court Rules. 2. In default of agreement within 7 days as to the form of order each party, within 14 days, file such a draft minute of order. 3. The matter stand over to a date to be fixed for the making of orders, any argument thereon and directions. 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: 23 MARCH 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

1 This is a representative proceeding brought under Part IVA of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act). 2 In 2002, the applicant and the respondent agreed to settle the proceedings. On 23 and 24 April 2003, having given directions for the filing of evidence, I began to hear an approval hearing of that settlement. By that time, objectors, being members of the Class, had expressed their dissatisfaction with the settlement, after it had become known, through legal representatives separate from those appearing for the applicant. In April 2003, I proceeded with the evidence to a point at which it was necessary to adjourn the hearing to allow for the filing of further evidence to be completed by August 2003. I fixed further days to complete the approval hearing on 13 (and if necessary 14) October 2003. 3 Difficulties arose with the implementation of some of my orders. Further directions were made in July 2003. On 15 August 2003, further directions were made extending the time for filing evidence to September 2003 and providing for a regime for access to documents. 4 On 9 September 2003, I was informed by letter to my associate from the solicitor for the respondent (the sending of which letter was approved by the solicitors for the applicant) of the following: As you will also be aware, a number of the members of the class represented by the Applicant have objected to approval of the Agreement. In support of their objection, a large amount of evidence has been filed and served by the "Objectors". Upon review of their evidence, and material served by the applicant, our client has taken a view about the claims now being made by the class members and the extent of the opposition to the Agreement and has terminated the Agreement. It seems to us that the most appropriate way forward is to now have the matter re-listed so that our client might formally advise the Court of its position and seek to have the further dates for the Approval Hearing vacated. 5 The applicant contested these assertions. It said that it had a binding contract of settlement, subject to judicial approval. 6 I stood the matter over to 26 September 2003 for argument as to the disposition of the matter. On that day I made orders for the pleadings to be amended to reflect these assertions and for evidence to be filed dealing with these contract issues the timetable for which was to be completed by late November. I said I would be minded to hear these aspects of the case as a separate issue under Order 29. On 1 December 2003, I set a separate issue down for trial on 10 December 2003. 7 On 10 December 2003, I heard argument on the form of pleadings then filed, relevantly contained in annexures 1A, 1B and 1C of my reasons for judgment on the amendment application [2004] FCA 33. 8 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 Order 29 rule 2 whether the Respondents have [sic: respondent has] validly terminated the agreement to settle the proceedings as alleged in paragraphs 22 to paragraph 26(g) of the Respondents [sic: Respondent's] amended defence. 2. Costs 9 As I explained in my reasons of 29 January 2004, the debate on 10 December 2003 led to an amendment to the defence (which I allowed) and which is contained in annexure 2 to my reasons of 29 January 2004. 10 The issues tendered on the notice of motion are as follows: a) Whether on 4 September 2003 the respondent lawfully terminated the written contract to settle the proceedings entered on 17 July 2002. b) Whether there were implied terms of the settlement agreement as set out in sub-paragraphs 26(a)(i), (ii) and (iii) of the defence, based on the matters adjacent to (A) and (B) in the particulars provided in the defence. c) Whether the matters in sub-paragraphs 26(b)(i), (ii), (iii) and (iv) were matters of common contemplation or common assumption at the time of entry into the settlement agreement. d) Whether the Common Assumption as defined in sub-paragraph 26(b)(iv) was an implied term of the settlement agreement. e) Whether on or about the date of the entry into the settlement agreement the applicant impliedly represented to the respondent the matters referred to in sub-paragraphs 26(d)(i), (ii) and (iii) (they being reflections of the implied terms otherwise pleaded in sub-paragraphs 126(a)(i), (ii) and (iii)). f) Whether the respondent was induced to enter the settlement agreement relying on the matters in sub-paragraphs 26(a) to (d). g) Whether the conduct of certain class members (the objectors) between the date of the settlement agreement and 4 September 2003 was a breach of the settlement agreement. h) Whether the representations set out in subparagraphs 26(d)(i), (ii) and (iii) were false or misleading. i) Whether the applicant or the class members have repudiated the settlement agreement, by the conduct adjacent to (A) and (B) under sub-paragraph 26(h). j) Whether the parties are discharged by frustration from their obligations generally or by operation of the Frustrated Contracts Act 1978 (NSW).