Bright v Femcare Limited

FEDERAL COURT OF AUSTRALIA

Bright v Femcare Limited [2002] FCA 11

PROCEDURE – whether previous order pursuant to s 33N of the Federal Court of Australia Act 1976 (Cth) (“the Act”) should be stayed – whether stay appropriate in circumstances – suspension of limitation periods in representative proceedings – whether order pursuant to s 33N of the Act causes limitation periods of individual group members to run again

Federal Court of Australia Act 1976 (Cth), Pt IVA, ss 33N, 33ZE

The Annot Lyle (1886) 11 PD 114 referred to
Monk v Bantram [1891] 1 QB 346 referred to
Powerflex Services Pty Ltd v Data Access Corporation (1996) 137 ALR 498 referred to
Silkfield Pty Ltd v Wong [1998] FCA 1645 referred to

KERRIE BRIGHT v FEMCARE LIMITED & ANOR

N 410 OF 1999

STONE J
22 JANUARY 2002
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:

STONE J

DATE OF ORDER:

8 NOVEMBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.the order made on 19 October 2001 be stayed and its operation suspended pending the determination of the applicant’s application for leave to appeal in respect of that order and the determination of any appeal consequential upon the grant of such leave or until further order;

2.costs on application for stay and suspension of order to be costs on appeal.

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:	STONE J
DATE:	22 JANUARY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BACKGROUND

1. On 19 October 2001, pursuant to s 33N of the Federal Court of Australia Act 1976 (Cth) (“Act”) and to notices of motion filed by the first and second respondents, I ordered that this proceeding no longer continue as a representative proceeding. The applicant sought leave to appeal from this judgment and subsequently sought a stay of the above order pending the outcome of the application for leave and any appeal. On 8 November 2001, after hearing the oral submissions of all parties, I made the order sought by the applicant and indicated that I would provide my reasons at a later date. These are my reasons.

2. The second respondent did not oppose the application for a stay. The first respondent, in opposing the application, did not take issue with the applicant’s concerns relating to the possible expiry of limitation periods (see [4] below) but concentrated on the reasons why, in its submission, I should not exercise my discretion in favour of granting the stay.

3. The Court has power under s 23 of the Act to make such orders as it thinks appropriate. The Federal Court Rules (O 37…