Bright v Femcare Ltd

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FEDERAL COURT OF AUSTRALIA

Bright v Femcare Ltd [2000] FCA 742

PLEADINGS – representative proceedings under Pt IVA of the Federal Court of Australia Act 1976 (Cth) – respondents sought an order that the third amended statement of claim be struck out on the grounds that it does not sufficiently plead, for the applicant or the group members, any reasonable cause of action and that it is embarrassing in certain respects – adequacy of the pleading of causes of action under ss 52, 53(c), 74B, 74D and 75AD of the Trade Practices Act 1974 (Cth) and in negligence, having regard to the rules concerning pleading in O 11 of the Federal Court Rules – permissible level of generality of initial pleading of material facts in representative proceedings

Federal Court of Australia Act 1976 (Cth), Pt IVA
Trade Practices Act 1974 (Cth), ss 4(1), 5(1), 52, 53(c), 74A, 74B, 74D, 75AB, 75AC and 75AD
Federal Court Rules, O 11

Philip Morris (Australia) Ltd v Nixon (2000) 170 ALR 487, followed
Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434, referred to
Tycoon Holdings Ltd v Trencor Jetco Inc (1992) 34 FCR 31, referred to
Pyrenees Shire Council v Day (1998) 192 CLR 330, referred to
Stegenga v J Corp Pty Ltd (1999) ATPR 41-695, referred to

KERRIE BRIGHT v FEMCARE LIMITED AND ENDOVASIVE PTY LIMITED

N 410 OF 1999

LEHANE J
5 JUNE 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:

5 JUNE 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The third amended statement of claim filed on 1 November 1999 be struck out.

2.        The applicant have liberty to replead.

3.The first and second respondents file and serve, not later than 13 June 2000, short draft minutes of the orders for which they contend, consistently with these reasons, to dispose of the remaining aspects of their notices of motion filed on 17 November 1999 and 19 November 1999 respectively and the outstanding costs issues.

4.        The matter be listed for further directions at 9.00am on 16 June 2000.

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:

5 JUNE 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. By an amended notice of motion filed on 17 November 1999 the first respondent (Femcare) seeks a number of orders: first, and principally, that the third amended statement of claim filed on 1 November 1999 be struck out (the third amended statement of claim is the applicant’s current pleading: when I use the expression “the statement of…

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Details
Case
[2000] FCA 742
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Bright v Femcare Ltd was heard, involving the plaintiff, Bright, and the defendants, Femcare and Endovasive. Bright, who underwent a sterilization procedure using Filshie clips manufactured by Femcare and applied by Endovasive, sought damages due to alleged failures in the procedure. The defendants sought to have Bright's third amended statement of claim struck out and requested various directions and orders relating to the case.

The primary legal issues were whether the statement of claim should be struck out for being deficient and, if so, whether Bright should be allowed to replead. Additionally, the court needed to decide on the appropriate directions and orders to be issued to the parties in light of the deficiencies in the pleadings. The court also needed to consider the extent of information required from Bright to justify the commencement of the proceeding and whether certain persons should be excluded from the class of persons on whose behalf the proceeding is brought.

The court held that the deficiencies in the statement of claim were extensive and warranted its striking out in its entirety. However, the court granted Bright liberty to replead, subject to certain conditions. The court determined that it was inappropriate to order the filing and service of an affidavit of facts and circumstances or the provision of further particulars at that stage. Nevertheless, the court required Bright to provide a statement of the facts and circumstances known to her on which she intends to rely when the case is repleaded, as well as particulars of the kind sought by the defendants. The court emphasized that the provision of such information should occur at the time of delivery of the further amended statement of claim.

The court also noted that Femcare had introduced measures to address the potential risks associated with the Filshie system, such as sending out regular service reminders and introducing a gauge for checking the calibration of applicators. The court acknowledged that there would be significant controversy at the trial regarding these measures and the failure rate of the Filshie system. The court further highlighted the "cluster" of failures at the John Hunter Hospital, which led to a safety alert being sent out to customers.

In conclusion, the court struck out the third amended statement of claim, granted Bright liberty to replead, and required her to provide a statement of facts and particulars when repleading. The court also directed the respondents to file and serve short draft minutes of the orders for which they contend and listed the matter for further directions.

Orders

Orders of the court

1. The third amended statement of claim filed on 1 November 1999 be struck out.

2. The applicant have liberty to replead.

3. The first and second respondents file and serve, not later than 13 June 2000, short draft minutes of the orders for which they contend, consistently with these reasons, to dispose of the remaining aspects of their notices of motion filed on 17 November 1999 and 19 November 1999 respectively and the outstanding costs issues.

4. The matter be listed for further directions at 9.00am on 16 June 2000.

Background

Background to the litigation

By an amended notice of motion filed on 17 November 1999 the first respondent (Femcare) seeks a number of orders: first, and principally, that the third amended statement of claim filed on 1 November 1999 be struck out (the third amended statement of claim is the applicant’s current pleading: when I use the expression “the statement of claim”, that is the document to which I refer, incorporating certain amendments foreshadowed during argument and confirmed in subsequent written submissions of counsel for the applicant); secondly, a direction that the applicant (I shall refer to Ms Bright in that way, though she is the respondent to the motion) file and serve an affidavit of facts and circumstances to be relied on in support of particular allegations in the statement of claim; thirdly, a direction that the applicant’s solicitors notify Femcare’s solicitors of certain matters (Femcare would say, material facts) relating to the applicant’s claims against Femcare and the second respondent (Endovasive) and of certain other matters which undoubtedly fall within the category of particulars – in each case, in so far as the applicant’s solicitors have the information; fourthly, a direction that the applicant and her solicitors supply authorities in favour of Femcare’s solicitors permitting the inspection of medical records and the conduct of interviews with medical practitioners; fifthly, a direction as to the filing and service by the applicant of expert evidence in support of particular paragraphs of the statement of claim; and sixthly, an order that certain persons who have commenced proceedings in the Supreme Court of Queensland against, among others, Femcare and Endovasive be excluded from the class of persons on whose behalf the applicant brings this proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (I shall refer to that Act as the Federal Court Act). Endovasive, by a notice of motion dated 19 November 1999, seeks identical relief.Background Perhaps somewhat unusually on a strike‑out motion, I admitted affidavit evidence, on some of which there was limited cross‑examination, concerning the circumstances giving rise to the claims which the applicant makes for herself and for the group members defined in the statement of claim. The evidence was referred to extensively in submissions. To the extent that I admitted any of it subject to relevance, that condition is, in my view, satisfied. What follows is based on that evidence. It is, I think, largely uncontroversial, at least for the purposes of the motions.(a) The Filshie System Femcare is an English company, based in Nottingham. It manufactures what are known as Filshie clips. It also manufactures devices, known as applicators, by means of which the clips are applied to women’s fallopian tubes, occluding them so as to prevent conception. The Filshie system involves laparoscopic surgery using the applicator and the clips. It has been used in that way since 1982 in many countries, including Australia. Both the system and the clips are named after Dr G M Filshie, who was described in evidence as the co‑developer of the Filshie system and is the honorary Medical Director of Femcare.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

LEHANE J
Secondly, breach is pleaded in par 54. That paragraph simply pleads that “the Respondents and/or each of them breached their duty of care to the Applicant and/or the Group Members.” There follows a series of paragraphs described as “particulars” which allege various things which the respondents failed to do. Senior counsel for Femcare was right, in my view, in submitting that those “particulars” are allegations of a kind to which the respondents ought to be required to plead in their defences and therefore should appear as allegations of material facts, not particulars. Additionally, it is not entirely easy to see how some of the “particulars” of breach would amount to breaches of the particular duties alleged, particularly the allegations of failure to conduct various surveys.Conclusion on the pleading I have not discussed every aspect of the pleading, particularly the common issues alleged: as I have mentioned, they were not the subject of detailed argument and they would at least need reconsideration, in the light of these reasons, in any repleading. The deficiencies in the document are, in my view, so extensive as to require the conclusion that the statement of claim be struck out in whole. The applicant should, however, have liberty to replead.Other relief sought Given that the statement of claim is to be stuck out, it is inappropriate at this stage to order the filing and service of an affidavit of facts and circumstances or the provision of further particulars. The evidence on the motions does, however, strongly suggest that the applicant has little information as to the precise circumstances of the procedures performed upon her and upon group members and relies substantially on what is reported to have occurred at John Hunter Hospital. To some extent, no doubt, the applicant is in a position to fill gaps by inquiries which it is open to her to make. To some extent, it may be that she will seek to rely on interlocutory processes to fill in gaps. As a general proposition, no doubt the respondents are right to submit that it is not legitimate to commence a proceeding not knowing whether one has a case but with the intention of using the processes of the Court to ascertain, after the proceeding is commenced, whether allegations made are capable of being supported. To state that general proposition is easy; it is rather more difficult to draw a precise line so as to identify how much information is required in order to justify the commencement of a particular proceeding. But so that issues of the kinds foreshadowed by the respondents can be identified and, for example, appropriate orders for discovery made, it is appropriate, I think, that the applicant be required to provide in large measure, when the case is repleaded, the materials sought by Femcare in par 2 and par 2A of its amended notice of motion and by Endovasive in the corresponding paragraphs of its notice of motion. Precision is impossible until any further amended statement of claim is presented. But if the allegations referred to in par 2 of Femcare’s amended notice of motion are repeated, then in my view a statement (though not, at this stage, an affidavit) of the facts and circumstances, known to the applicant, on which she intends to rely should be required. Similarly, but depending upon the precise form of the further amended statement of claim, particulars of the kind contemplated by par 2A of Femcare’s amended notice of motion should be provided. I can see no reason why the applicant should not be required to furnish a statement and particulars at the time of delivery of the further amended statement of claim: if, in the light of the amendments, the respondents contend that something different, or further, is required, then they can seek it.

Ratio Decidendi

Legal Principle Established

Established by: LEHANE J

During 1998 (apparently), Femcare (and presumably its distributors, including Endovasive) instituted a system of sending out regular service reminders. A copy of such a document taken from the Femcare website says:“It is important to note that POORLY SERVICED APPLICATORS CAN RESULT IN A LOSS OF CALIBRATION. This could lead to incorrect closure of the Filshie Clip and possibly failed sterilisations.”Femcare has recently – during 1999, the evidence suggests – introduced a gauge which a hospital or doctor may purchase for the purpose of checking the calibration of applicators. No such equipment – on the evidence before me at present – was available previously. It should also be said, however, that there is evidence given by Femcare’s solicitor of a conversation which he had with Dr Filshie in which Dr Filshie said, in substance, that the suggested check by the surgeon on completing the procedure (by inspecting the clip in situ) ought to reveal whether clips have been properly applied and whether, the top of the clip being flat, the tube was occluded. Matters of that sort, no doubt, will give rise to significant controversy to be dealt with at the trial. There is evidence that the failure rate quoted by Femcare, based on the medical literature, and by Endovasive is 2.7 per 1000 cases. Femcare’s solicitor gave evidence that he had been told by Dr Filshie that the Filshie system has a failure rate as low as, if not lower than, other leading methods of female sterilisation.(c) The John Hunter “cluster” In 1997 there occurred a “cluster” of failures of sterilisation procedures performed using Filshie clips and applicators at the John Hunter Hospital in Newcastle: the evidence before me indicates that, for a period from 1 January 1997, slightly less than 10 per cent of such procedures performed at that hospital failed – that is, the failure rate significantly exceeding 2.7 per 1000. The applicators in use at the hospital were sent to Endovasive, and by Endovasive to Femcare, for checking. The result appears in a fax from Femcare to Endovasive of 22 January 1998, the relevant part of which reads:“2.Applicators 687‑7 and 822‑7 have BDH ducks which should be replaced but are otherwise OK.3.Applicator 7‑146 is seriously out of calibration.4.Applicator 7‑145 has a misaligned duck tube assembly. This has caused it to be seriously out of calibration. We have records which indicate that the alignment was correct when the applicator was originally shipped from Femcare. We are not able to ascertain how the misalignment occurred.5.Applicator 7‑315 is OK.6.Use of either applicator 7‑146 or 7‑145 in the condition in which we received them would result in sterilisations which must be considered to be at higher than normal risk of failure.” During 1998, a “safety alert” was sent to hospitals and other customers of Endovasive. This apparently happened at the direction of, or by arrangement with, the Therapeutic Goods Administration. The safety alert read:“If your Filshie clip applicator has not been serviced and calibrated by an approved Femcare Repairer within the last 12 months then the equipment must not be used until it has been serviced and calibrated as it may cause a failed sterilisation.Please contact Endovasive immediately to make arrangements for your applicator to be serviced and calibrated by an approved Femcare Repairer.Procedures that have been performed using applicators that have not been serviced for over 12 months have a potentially high failure rate. Doctors and patients should be notified of the potential risk of failure. Patients should consider using alternate forms of contraception until they can discuss this issue with their doctor or hospital.”