FEDERAL COURT OF AUSTRALIA

Tongue v Council of the City of Tamworth [2004] FCA 1050

TERENCE RODNEY TONGUE v COUNCIL OF THE CITY OF TAMWORTH

NG 425 OF 1998

ALLSOP J

13 AUGUST 2004

SYDNEY

THE COURT ORDERS THAT:

1.                  The costs of the applicant and the respondent in the approval hearing be his and its costs in the cause.

2.                  The objectors pay their own costs up to date, subject to any order varying such order made in the future by any trial judge.

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

REASONS FOR JUDGMENT

1                     I refer to my reasons for judgment dated 28 July 2004 and my dismissal on that date of the application under s 33V of the Federal Court of Australia Act 1976 (Cth) for approval of settlement in these proceedings.  I reserved the question of costs and gave the parties an opportunity to file submissions.  Some submissions were outside the seven days.  I drew an arbitrary halt to this notwithstanding that the objectors, having filed submissions on costs of eight pages plus annexures sought a further opportunity to meet submissions placed before me (out of time) by the respondent.

2                     In my view all parties have had an ample opportunity to say what they want to about costs. 

3                     I propose to approach the question of costs more generally than some of the submissions would have me do.  The respondent and the applicant did not seek any order for costs against another party.  The primary position of the respondent was that it did not seek any order as to costs.  The primary position of the applicant was that there should be an order that each party pay his, her and its own costs.  The long submissions of the objectors were in aid of the proposition that the applicant and the respondent should pay all the objectors’ costs.  The burden of the objectors’ submissions was that they in effect had won a case and so should receive their costs.

4                     When I allowed the objectors into the case at the end of 2002 and the beginning of 2003 it was made plain on a number of occasions that they came in as intervenors.  It is true in a sense they had a role somewhat akin to a party in the objection.  However, they are not parties.  They are members of the class, but they are not parties to the suit.  No attempt has been made to split the class and have direct representation. 

5                     The issue before me was whether or not a settlement should be approved.  There were different interests propounded at the hearing.  However, a bona fide settlement agreement was entered which for the reasons I gave was not approved.  This is not the loss of the case by the applicant to either the respondent or the objectors.  The position of the objectors is that they have come forward and successfully prevented the matter being resolved by the proposed settlement.  The matter and their part in it will be a matter for future consideration by their advisers and in argument.  I would be surprised if they do not in some fashion play some active part in the case.  To that end they have achieved their objectives of intervention as objectors.

6                     Doing justice between the parties in my view both the applicant and the respondent should have his and its costs in the approval application as costs in the cause.

7                     As to the objectors they came in as intervenors and I proposed and still propose to regard them as intervenors.  In my view, in all the circumstances subject to the ability of the trial judge in due course to vary the order should circumstances warrant, the objectors should pay their own costs.

8                     I fully the appreciate the width of s 43 of the Federal Court of Australia Act 1976.  However, I see no justice whatsoever in either or both the respondent and the applicant paying the costs of the objectors.  A bona fide agreement was entered.  There was no impropriety in seeking to propound it as a settlement.  For the reasons I gave I did not approve it.  I see no reason why the applicant or the respondent in justice or equity should pay any of the objectors’ costs.

9                     However, with the unfolding of the litigation, which will probably occur, the trial judge may take a view that some of the costs expended by the intervenors on the approval application if used in some fashion in the hearing may properly be subject of an order for costs in the hearing.  That will be a matter for the trial judge.

10                  On the last occasion I indicated to the parties that there might be a need to take procedural steps to ensure that the trial judge is not embarrassed by any material on the file.  No one has taken any steps in this respect.  The parties should understand that they have a responsibility to ensure that the staff of the trial judge who takes over the matter are made aware of the need to ensure that the trial judge is not embarrassed by material on the Court file relevant to the approval application and that the Court file is organised in a way to create, in effect, a confidential sub-file.

11                  The orders that I make are:

1.         The costs of the applicant and the respondent in the approval hearing be his and its costs in the cause.

2.         The objectors pay their own costs, subject to any order varying such order made in the future by any trial judge.

Associate:

Dated:              13 August 2004