Bright v Femcare Ltd

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.