Tongue v Council of the City of Tamworth [2004] FCA 1702

FEDERAL COURT OF AUSTRALIA

Tongue v Council of the City of Tamworth [2004] FCA 1702 PRACTICE AND PROCEDURE – representative action – withdrawal by representative party – substitution – liability for costs Words and phrases – 'settlement' Federal Court of Australia Act 1976 (Cth), s33T, s33W Burns Philp & Co Limited v Bhagat (1993) 1 VR 203 cited Knight v FP Special Assets Ltd (1992) 174 CLR 178 cited Revian v Dasforth [2002] FCA 1119 discussed Tongue v Council of the City of Tamworth [2004] FCA 972 cited Tongue v Council of the City of Tamworth [2004] FCA 209 cited Transport Accident Commission v Coyle (2001) 3 VR 589 cited TERENCE RODNEY TONGUE v COUNCIL OF THE CITY OF TAMWORTH NG 425 of 1998 JACOBSON J 21 DECEMBER 2004 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: 21 DECEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Leave be granted to the applicant pursuant to s 33W(2) of the Federal Court Act 1976 (Cth)to withdraw as representative party in this proceeding.

2. Entry of Order 1 be deferred until 18 February 2005.

3. The notice of motion filed by Reganam Pty Limited ("Reganam") on 9 December 2004 be dismissed.

4. Reganam be directed pursuant to s 33X(5) of the Act to give a notice in the following terms to all group members:-

"On 21 December 2004, Jacobson J granted leave to Mr Tongue to withdraw as representative party in this proceeding. However, on that date, his Honour refused to order that Reganam Pty Limited be substituted as the representative party in the proceeding. The reason why his Honour refused to order the substitution of Reganam was that Reganam sought to attach a condition to its joinder as the applicant that it not have any potential liability for the respondent's costs incurred prior to the date on which Reganam was joined. His Honour considered that such a condition was not justified. The proceeding has been stood over until 18 February 2005 but on that date the Court will invite Reganam to state whether it is prepared to become a representative party without any condition immunising it from liability for costs incurred prior to the date of joinder. If so, an application to substitute Reganam as the representative party will be heard on 18 February 2005 or a date so soon thereafter as is convenient to the parties and the Court. Alternatively, the Court will require to be told on 18 February 2005 whether any other group member wishes to apply to be substituted for Mr Tongue as the representative party. If so, an application for such group member to be substituted will be heard on 18 February 2005 or on a date so soon thereafter as is convenient to the parties and the Court. If Reganam is not prepared to become the representative party free of the condition previously sought or if no other group member wishes to become the representative party, or if no other group members wishes to become the representative party there will be no applicant in the proceeding. Jacobson J has indicated that in those circumstances, he will be likely to make an order that the proceeding cease to continue as a representative proceeding and for any group member who wishes to do so to pursue his or her or its own individual proceedings."