Bright v Femcare

[2000] FCA 1179

FEDERAL COURT OF AUSTRALIA

Bright v Femcare [2000] FCA 1179

KERRIE BRIGHT v FEMCARE LIMITED AND ENDOVASIVE PTY LIMITED

N 410 OF 1999

LEHANE J
22 AUGUST 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 410  OF 1999

BETWEEN:

KERRIE BRIGHT
APPLICANT

AND:

FEMCARE LIMITED
FIRST RESPONDENT

ENDOVASIVE PTY LIMITED
(ACN 061 512 132)
SECOND RESPONDENT

JUDGE:

LEHANE J

DATE OF ORDER:

22 AUGUST 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The applicant file and serve, not later than 29 August 2000, draft short minutes of the orders for which she contends, consistently with these reasons.

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	N 410  OF 1999

BETWEEN:

KERRIE BRIGHT
APPLICANT

AND:

FEMCARE LIMITED
FIRST RESPONDENT

ENDOVASIVE PTY LIMITED
(ACN 061 512 132)
SECOND RESPONDENT

JUDGE:	LEHANE J
DATE:	22 AUGUST 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a group proceeding commenced under Pt IVA of the Federal Court of Australia Act 1976 (Cth). Its nature, the background circumstances and the claims which the applicant has made, for herself and on behalf of certain group members, are described in two earlier judgments (Bright v Femcare Ltd (1999) 166 ALR 743 and Bright v Femcare Ltd [2000] FCA 742). It is unnecessary to undertake that task again.

2. In the second of those judgments (the June judgment) I gave reasons which resulted in orders that, among other things, the third amended statement of claim filed by the applicant be stuck out but with liberty to replead. The applicant has, in exercise of that liberty, filed a fourth amended statement of claim. That document differs substantially from its immediate and more remote predecessors. For present purposes, however, the differences do not matter. The applicant makes, for herself and for group members falling within classes similar to those described in previous pleadings, substantially similar claims to those made previously under s 52 of the Trade Practices Act 1974 (Cth) and in negligence, on the basis of pleaded facts which do not differ, in any material way, from those pleaded in the third amended statement of claim and those established (for the purposes of the strike out motion) by the evidence discussed in the June judgment.

3. Now before me are a notice of motion filed by the applicant on 23 June 2000 and aspects of a notice of motion filed in Court by the second respondent, Endovasive, on 9 August 2000 (superseding a notice of motion filed by Endovasive on 8 August 2000).  The applicant seeks an order that the parties be granted access to documents produced by the Therapeutic Goods Administration (to which I shall refer as the TGA) under a subpoena for production issued to it on 7 June 1999 (to which I shall refer as the TGA subpoena).  Endovasive seeks an order that the TGA subpoena be set aside or, alternatively,…