FEDERAL COURT OF AUSTRALIA

Tongue v Council of the City of Tamworth [2002] FCA 1163

TERENCE RODNEY TONGUE v COUNCIL OF THE CITY OF TAMWORTH

NG 425 OF 1998

ALLSOP J

17 SEPTEMBER 2002

SYDNEY

THE COURT ORDERS THAT:

1.      Leave be granted to file in Court the affidavit of Bruce Stephen Woolf sworn 17 September 2002.

2.      The solicitors for the applicant make available to the solicitors acting for Simon Kelleher and other persons identified in pars 1 and 16 of the affidavit of Bruce Stephen Woolf sworn and filed 17 September 2002 (the affidavit), on appointment, the affidavits, exhibits and discovery documents in the proceedings for the purpose of the preparation of an advice by Mr Robertson SC, and that should the parties not be able to make reasonable arrangements for the cost of the photocopying of those documents, leave be granted to re-list the matter to determine that question.

3.      Leave be granted to counsel and solicitors acting for Simon Kelleher and other persons referred to in pars 1 and 16 of the affidavit to approach the Judge’s associate to arrange inspection of the Court file.

4.      Any member of the class who opposes the settlement inform the solicitors on the record for the applicant (Long Howland Houston), in writing, on or before 2 October 2002, of any opposition to the proposed settlement and if there be a basis for it, the basis for that opposition.

5.      Any member of the class who considers that he, she or it may wish to oppose the settlement but wishes to obtain independent legal advice before reaching a view about opposition to the proposed settlement, inform the solicitors on the record for the applicant, in writing, on or before 2 October 2002.

6.      On or before 9 October 2002, the solicitors on the record for the applicant are to file and serve an affidavit deposing to the despatch of these orders to all members of the class, exhibiting the originals of the communications referred to in orders 4 and 5, received prior to the swearing of the affidavit.

7.      There be liberty to all parties by their counsel to approach Allsop J in chambers in the week commencing 4 November 2002 or so shortly thereafter as is convenient, to indicate any agreed view as to the future conduct of the matter including the fixing of a date for hearing.

8.      The matter be stood over to a date to be fixed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     In this matter, which is in proceedings commenced under Part IVA of the Federal Court of Australia Act 1976 (Cth), there is a proposed settlement between the class and the respondent.  The settlement is put forward by the solicitors on the record for the applicant and the respondent through its legal advisors. 

2                     The matter came into my docket on my appointment in 2001.  Shortly thereafter it was indicated to me by the legal representatives of the parties that there was some real prospect for settlement of the case.  In that context, I stood the matter over on a number of occasions on the assurance of the real possibility of settlement. 

3                     Some short time ago, in the middle of this year, I was informed that a settlement had been reached and there would be a need for an approval hearing.  Upon that news being disseminated to the class, there appears to have been caused a degree of objection by some members of the class.  I use the plural.  There is evidence before me that there are more than a handful of people who have at least told a Mr Simon Kelleher of their lack of support for the settlement.

4                     It is unnecessary for today's purposes to investigate precisely how many people have spoken to Mr Kelleher.  Mr Kelleher is a director of Reganam Pty Limited.  He has instructed Mr Woolf of Woolf Associates who in turn have instructed Mr Robertson of senior counsel.  Mr Robertson has indicated to me that he has been requested to provide an advice on prospects for those who instruct him for dissemination to those who are instructing Mr Woolf.

5                     Without descending into the detail of the file, it is fair to say that there has been some correspondence passing between members of the class and the Court, of which the parties are aware, which indicates that there is a degree of ill feeling in at least a member or some members of the class towards those conducting the proceedings on behalf of the applicant class and some members of the class.  It may well be, and as a matter of logic it is possible, that the advice of Mr Robertson as to prospects might drain any opposition to the settlement.

6                     I propose to conduct the matter henceforth in a way which will allow Mr Robertson to provide within the next month an advice on prospects to his solicitors.  I also propose to allow a period of two weeks thereafter for Mr Robertson's solicitor to consult with those who may instruct him.  Mr Officer QC, who appears with Mr Hennessy for the respondent, does not oppose that course.  Mr Rowe, counsel for the applicants, from submissions he made, I think perhaps does.  Nevertheless I propose to allow sufficient time to enable that process of advice to be carried out.

7                     It is necessary that the solicitors for the applicants provide Court documents and discovered documents for the purpose of that advice.  I have made directions about that and I expect legal representatives of the parties to sort those matters out.  I have indicated what will occur if that cannot be done.  I have also given Mr Robertson leave to approach my associate to have access to the Court file if he needs it, in addition to that.

8                     The question has arisen at the request of Mr Officer as to whether there should be notification of those parties directly who wish to oppose the settlement or wish to reserve their position in relation to opposition to the settlement pending the consideration of the independent advice.  That question arises because in pars 1 and 16 of Mr Woolf's affidavit sworn on 17 September, which I grant leave to file in Court,  Mr Woolf deposes that Mr Kelleher has in effect informed him (Mr Woolf) that a number of people support Mr Kelleher in instructing Mr Woolf's firm.  Mr Officer indicated that there may be questions as to how many of the people identified in pars 1 and 16 are either opposed to the settlement or truly need advice.  That questioning of the underlying information of pars 1 and 16 was echoed by Mr Rowe, who from the bar table indicated to me that there had been communications between his solicitor and some of these people which would throw into some doubt the accuracy of the underlying information in pars 1 and 16.

9                     I hasten to add that nothing said by Mr Officer or Mr Rowe casts any doubt on the truthfulness of the paragraphs themselves from Mr Woolf.  In that light, and in the context of the information that I have, identifying the degree of bitterness that there is at least amongst some of the participants in the class, I think it appropriate that this Court be told promptly, but in a way that does not engender undue expense, who is opposed to the settlement, and if someone has an opposition currently framed and enunciated, what the basis of that is, and secondly, who of the class is undecided and requires independent advice before making a decision.  I do not propose to order an affidavit from each of those persons because I think that could engender costs which are unnecessary.  However, it is plain from pars 1 and 16 that Mr Kelleher is telling Mr Woolf that he is in communication with persons who are either unhappy with the settlement or who require or desire independent advice before agreeing to it.

10                  Therefore, I do not think that it is burdensome or oppressive to require, as I propose to, those members of the class who oppose the settlement to inform the solicitors for the applicant in writing of that opposition, and if there is a basis for it, what that basis is and, secondly, if any member of the class wishes to await the provision of independent advice before taking a view about opposition, that that is communicated to the solicitors for the applicant.

11                  I should add that no person in the class should necessarily take the view that identifying either matter necessarily carries with it any personal criticism of those conducting the case for the applicant. 

12                  Those individual written communications from the persons or entities who oppose the settlement are to be provided to the solicitors for the applicants on or before 2 October 2002. 

13                  On or before 9 October 2002, the solicitors for the applicants are to file and serve an affidavit exhibiting the originals of those communications received prior to the swearing and filing of the affidavit.

14                  I repeat that the notification should identify either (a) opposition or (b) a desire to abide the consideration of the independent advice before deciding upon opposition, but if the former can be identified now, that is, if opposition can be identified now, the communication is to identify the basis of the opposition. 

15                  One of the purposes in having the directions hearing today was, if I may use the expression, to flush out the degree of opposition and I am grateful for the assistance provided by Mr Woolf in preparing the affidavit that he has.  However, I think the clarification of who it is, who even opposes, or wishes to await the independent advice, will assist me in understanding in due course the necessary procedure to adopt in scheduling any further hearing in this matter.

16                  I otherwise stand the matter over to a date to be fixed.

17                  I will have an order taken out and I will circulate it.  I think it appropriate that Mr Rowe's solicitor send it to all members of the class.  Of course, if Mr Woolf wishes to communicate with those people as well, that is a matter for him but without any intention to doubt the instructions of Mr Woolf, I think it appropriate that the applicants’ solicitors be ordered to communicate that order to the members of the class and if Mr Woolf or Mr Kelleher wishes to communicate with people, that is a matter for them.

Associate:

Dated:              19 September 2002