Bright v Femcare Ltd

[1999] FCA 1583

FEDERAL COURT OF AUSTRALIA

Bright v Femcare Ltd [1999] FCA 1583

KERRIE BRIGHT V FEMCARE LIMITED and ENDOVASIVE PTY LIMITED

N  410 OF 1999

JUDGE:         BEAUMONT J.
DATE:           2 NOVEMBER 1999
PLACE:         SYDNEY

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

BETWEEN:

KERRIE BRIGHT On her own behalf and in a representative capacity on behalf of all persons in Australia who, as at the date of filing, have suffered injury or loss as a result of failed or possibly failed laparoscopic sterilisation procedures performed using Filshie sterilisation clips applied using a Filshie sterilisation clip applicator
Applicant

AND:

FEMCARE LIMITED
First Respondent

ENDOVASIVE PTY LIMITED
Second Respondent

JUDGE:

BEAUMONT J.

DATE OF ORDER:

2 NOVEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        Leave to appeal is granted.

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 On her own behalf and in a representative capacity on behalf of all persons in Australia who, as at the date of filing, have suffered injury or loss as a result of failed or possibly failed laparoscopic sterilisation procedures performed using Filshie sterilisation clips applied using a Filshie sterilisation clip applicator
Applicant

AND:

FEMCARE LIMITED
First Respondent

ENDOVASIVE PTY LIMITED
Second Respondent

JUDGE:	BEAUMONT J.
DATE:	2 NOVEMBER 1999
PLACE:	SYDNEY

REASONS FOR THE GRANT OF LEAVE TO APPEAL

BEAUMONT J:

1. I propose, for the reasons indicated in the course of argument, to grant leave to appeal, but not to attach any conditions so far as costs are concerned.  The question of costs will be entirely a matter within the jurisdiction and discretion of the Full Court.

2. In summary form, the reasons for the grant of leave are:  (1) that the point is a constitutional one;  and (2) it is a novel one, and therefore, cannot be said to be beyond argument;  indeed, one aspect of it was described by Lehane J (at par 19) as raising “questions of greater difficulty”.  A supplementary reason for the grant of leave, were it required, would be the circumstance that, if the point is a good one, a matter upon which of course I express no view and upon which we have already the benefit of a reserved judgment of Lehane J, it would have substantial effect on many other proceedings pending (and doubtless to be instituted in the future) by way of Group Proceedings in this Court.

3. The order of the Court therefore is that leave to appeal is granted.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated:             15 November 1999

Solicitor for the Applicant:	Maurice Blackburn Cashman
Counsel for the First Respondent:	Mr B W Walker SC
Solicitor for the First Respondent:	Freehill Hollingdale & Page
Counsel for the Second Respondent:	Mr  I F Butcher
Solicitor for the Second Respondent:	Spark Helmore
Date of Hearing:	2 November 1999
Date of Judgment:	2 November 1999