Casey v DePuy International Limited

[2010] FCA 617

FEDERAL COURT OF AUSTRALIA

Casey v DePuy International Limited [2010] FCA 617

Citation:

Casey v DePuy International Limited [2010] FCA 617

Parties:

PAMELA JOAN CASEY v DEPUY INTERNATIONAL LIMITED and JOHNSON & JOHNSON MEDICAL PTY LTD

File number:

ACD 10 of 2010

Judge:

STONE J

Date of judgment:

15 June 2010

Legislation:

Companies Act 2006 (UK) s 1139(1)
Federal Court of Australia Act 1976 (Cth) Part IVA
Trade Practices Act 1974 (Cth) s 4

Federal Court Rules O 8 r  3(2) and (3)

Date of hearing:

15 June 2010

Place:

Canberra

Division:

GENERAL DIVISION

Category:

No catchwords

Number of paragraphs:

6

Solicitor for the Applicant:

R Montagnino, United Legal

Solicitor for the First Respondent:

No appearance

Solicitor for the Second Respondent:

T Biddle, Norton Rose Australia

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 10 of 2010

BETWEEN: PAMELA JOAN CASEY
Applicant

AND:

DEPUY INTERNATIONAL LIMITED
First Respondent

JOHNSON & JOHNSON PTY LTD
Second Respondent

JUDGE:	STONE J
DATE OF ORDER:	15 JUNE 2010
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.Pursuant to Order 8 rule 3(2), the applicant has leave to serve an originating application on the first respondent, DePuy International Limited by registered post to St Anthony’s Road, Beeston, Leeds, West Yorkshire, LS11 8DT.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 10 of 2010

BETWEEN: PAMELA JOAN CASEY
Applicant

AND:

DEPUY INTERNATIONAL LIMITED
First Respondent

JOHNSON & JOHNSON PTY LTD
Second Respondent

JUDGE:	STONE J
DATE:	15 JUNE 2010
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1. The application in this proceeding is brought under Part IVA of the Federal Court of Australia Act 1976 (Cth) by the applicant as a representative party. The applicant claims relief under the Trade Practices Act1974 (Cth) on behalf of herself and other members of the class.

2. In summary, the claims made in the application are as follows. The first and second respondents are, respectively, the manufacturer and distributor of a prosthetic device that was used in a bilateral total knee replacement undergone by the applicant on 16 December 2008.  In 2009 the prosthesis model used in the applicant’s knee replacement was the subject of a voluntary recall by the first respondent.  The applicant’s left knee replacement was unsuccessful and on 3 February 2010 she underwent a further total left knee replacement.  The applicant claims that the first procedure was unsuccessful because the prosthesis used was defective. 

3. By notice of motion filed on 27 May 2010, the applicant seeks leave, pursuant to O 8 r 2 of the Federal Court Rules, to serve an originating process on the first respondent, DePuy International Limited, a company incorporated in the United Kingdom and a foreign corporation as defined in s 4 of the Trade Practices Act.   Order 8 r 2 provides that, subject to O 8 r 3, an originating process may be served on a person in a foreign country in one or more of the kinds of proceeding listed in the table in r 2.  Item 12 of that table lists a proceeding “based on a breach of a provision of an Act (wherever occurring) seeking relief in relation to damage suffered wholly or partly in Australia”.  I am satisfied that the damage claimed by the applicant in this proceeding falls within Item 12 of the table in O 8 r 2. 

4. Order 8 r 3(2) provides that the Court may give the leave referred to in [1], “in accordance with a convention or the law of the foreign country, on such terms and conditions as it considers appropriate, if the Court is satisfied” as to the factors listed in the subrule.  Those factors are:

   (a)the Court has jurisdiction in the proceeding;

   (b)the proceeding is of a kind mentioned in rule 2; and

   (c)the person seeking relief has a prima facie case for the relief claimed by the person in the proceeding.

   On the basis of the facts outlined in [1] and [2] above, I am satisfied that these requirements have been met.

5. The evidence in support of the present application comprises the affidavits of Brendan Christopher Aaron Jones sworn on 27 May 2010 and Robert Montagnino sworn on 15 June 2010, the annexures to those affidavits and an extract from the Companies Act 2006 (UK).  This evidence establishes that:

   ·The first respondent is a private limited company incorporated in the United Kingdom being company number 03319712;

   ·The registered address of the first respondent is St Anthony’s Road, Beeston, Leeds, West Yorkshire, LS11 8DT;

   ·Pursuant to s 1139(1) of the Companies Act 2006 (UK) the originating application may be served on the first respondent by post to its registered address.

   On the basis of this evidence I am satisfied that the requirements of O 8 r 3(3) have been met.  

6. Accordingly, the order will be that the applicant has leave to serve an originating process in this proceeding on the first respondent by registered post addressed to the first respondent at St Anthony’s Road, Beeston, Leeds, West Yorkshire, LS11 8DT.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:       15 June 2010