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