FEDERAL COURT OF AUSTRALIA
Casey v DePuy International Ltd (No 2) [2012] FCA 1370
Citation: Casey v DePuy International Ltd (No 2) [2012] FCA 1370 Parties: PAMELA JOAN CASEY v DEPUY INTERNATIONAL LTD and JOHNSON & JOHNSON MEDICAL PTY LIMITED File number: ACD 10 of 2010 Judge: BUCHANAN J Date of judgment: 4 December 2012 Date of hearing: 2 and 19 November 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 19 Solicitor for the Applicant: Mr J Schimmel of Maurice Blackburn Pty Ltd Solicitor for the Respondents: Mr T Biddle of Norton Rose Australia
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 10 of 2010
BETWEEN: PAMELA JOAN CASEY
ApplicantAND: DEPUY INTERNATIONAL LTD
First RespondentJOHNSON & JOHNSON MEDICAL PTY LIMITED
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
4 DECEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Pursuant to sections 33V(1) and 33ZF of the Federal Court of Australia Act 1976 (Cth) (the Act), the settlement of the proceeding is approved on the terms set out in:
(a)the amended settlement agreement dated 19 November 2012 between the applicant and the respondents in annexure RG-8 to the affidavit of Rebecca Gilsenan affirmed on 20 November 2012 (Gilsenan Affidavit);
(b)the “Liability Protocol” in annexure RG-9 to the Gilsenan Affidavit; and
(c)the “Compensation Protocol” in annexure RG-10 to the Gilsenan Affidavit.
2.Pursuant to sections 33ZF and/or 33ZJ of the Act:
(a)Group Members who receive compensation pursuant to the Compensation Protocol are to make a contribution (Costs Contribution) to the payment of the “Outstanding Costs” calculated as follows:
(i)the difference between:
(A)the costs (professional fees and disbursements) incurred by the applicant in connection with the proceeding up to and including 29 August 2012 (Pre Settlement Costs); and
(B)the amount of $700,000 (including GST) that the respondents have agreed to pay pursuant to clause 6.1(a) of the settlement agreement;
being $389,540.94;
(ii)plus interest on any unpaid portion of the Pre Settlement Costs from the date of these orders at the rate prescribed in regulation 110A of the Legal Profession Regulation 2005 (NSW);
(b)the Costs Contribution to be made by an individual Group Member is as follows:
Category of Group Member under the Compensation Protocol
Costs Contribution (including GST)
Category A
$900
Category B
$1,200
Category C
$2,000
Category D
$2,300
(c)for ease of administration, the Costs Contributions are to be paid by individual Group Members as follows:
(i)the applicant’s solicitor, Maurice Blackburn Pty Limited (Maurice Blackburn) is to deduct the applicable Costs Contributions from the compensation amounts payable to Group Members who are its clients;
(ii)the respondents are to deduct the applicable Costs Contributions from the compensation amounts payable to Group Members who are not clients of Maurice Blackburn and the respondents are to then retain those Costs Contributions and every two months are to pay the aggregate Costs Contributions to Maurice Blackburn;
(d)Maurice Blackburn and the respondents are to cease…
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- Case
- [2012] FCA 1370
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were to determine whether the settlement agreement and associated protocols for liability and compensation were fair and reasonable and whether they provided adequate protection for the Group Members. The court also had to decide on the distribution of costs, including how to allocate the remaining costs after a contribution from the defendants, and whether to allow Group Members who had opted out of the proceeding to withdraw their opt-out notices under certain conditions.
The court found that the settlement agreement and associated protocols were fair and reasonable, as they provided a structured and efficient means of resolving the claims of the Group Members. The court approved the settlement on the terms outlined in the amended settlement agreement, the Liability Protocol, and the Compensation Protocol. The court also approved the costs distribution plan, which included a contribution from the defendants and a specific cost contribution from each Group Member based on their category. The court further ruled that Group Members who had not opted out could not commence any further proceedings against the defendants regarding the specified characteristic of the implants, but could proceed with claims based on other alleged mechanisms of failure. Additionally, the court allowed for the withdrawal of opt-out notices under specific conditions.
The final orders of the court approved the settlement agreement and associated protocols, outlined the cost distribution plan, and established the conditions under which Group Members could withdraw their opt-out notices. All previous costs orders were vacated, and the court granted leave for Group Members to withdraw their opt-out notices under the specified conditions.
Orders
Orders of the court
1. Pursuant to sections 33V(1) and 33ZF of the Federal Court of Australia Act 1976 (Cth) (the Act), the settlement of the proceeding is approved on the terms set out in:
(a) the amended settlement agreement dated 19 November 2012 between the applicant and the respondents in annexure RG-8 to the affidavit of Rebecca Gilsenan affirmed on 20 November 2012 (Gilsenan Affidavit);
(b) the “Liability Protocol” in annexure RG-9 to the Gilsenan Affidavit; and
(c) the “Compensation Protocol” in annexure RG-10 to the Gilsenan Affidavit.
2. Pursuant to sections 33ZF and/or 33ZJ of the Act:
(a) Group Members who receive compensation pursuant to the Compensation Protocol are to make a contribution (Costs Contribution) to the payment of the “Outstanding Costs” calculated as follows:
(i) the difference between:
(A) the costs (professional fees and disbursements) incurred by the applicant in connection with the proceeding up to and including 29 August 2012 (Pre Settlement Costs); and
(B) the amount of $700,000 (including GST) that the respondents have agreed to pay pursuant to clause 6.1(a) of the settlement agreement;
being $389,540.94;
(ii) plus interest on any unpaid portion of the Pre Settlement Costs from the date of these orders at the rate prescribed in regulation 110A of the Legal Profession Regulation 2005 (NSW);
(b) the Costs Contribution to be made by an individual Group Member is as follows:
Category of Group Member under the Compensation Protocol
Costs Contribution (including GST)
Category A
$900
Category B
$1,200
Category C
$2,000
Category D
$2,300
(c) for ease of administration, the Costs Contributions are to be paid by individual Group Members as follows:
(i) the applicant’s solicitor, Maurice Blackburn Pty Limited (Maurice Blackburn) is to deduct the applicable Costs Contributions from the compensation amounts payable to Group Members who are its clients;
(ii) the respondents are to deduct the applicable Costs Contributions from the compensation amounts payable to Group Members who are not clients of Maurice Blackburn and the respondents are to then retain those Costs Contributions and every two months are to pay the aggregate Costs Contributions to Maurice Blackburn;
(d) Maurice Blackburn and the respondents are to cease deducting Costs Contributions from Group Members’ compensation payments after the Outstanding Costs have been fully paid to Maurice Blackburn;
(e) for the avoidance of doubt, Costs Contributions do not need to be made by the representatives of the estates of deceased Group Members who are entitled to compensation as provided in clause 9.1 of the Compensation Protocol.
3. All costs orders previously made in the proceeding are vacated.
4. Pursuant to sections 33ZB and 33ZF of the Act:
(a) A Group Member who has not opted out of the proceeding may not commence, continue or take any action, claim or proceeding against the Respondents for damages, compensation or other relief arising out of, in respect of or attributable to the “Characteristic” (as defined in the Liability Protocol), other than pursuant to the Liability Protocol and the Compensation Protocol;
(b) Subject to paragraph 4(a), a Group Member may commence, continue or take any action, claim or proceeding against the Respondents for damages, compensation or other relief arising out of the provision of an “Affected Implant” (as defined in the Amended Statement of Claim) on the basis of matters other than the Characteristic, including on the basis of the “Exclusionary Criteria” (as defined in the amended settlement agreement) or any other alleged mechanism of failure;
(c) Any Group Member who receives compensation under the Compensation Protocol may not commence, continue or take any action, claim or proceeding against the Respondents for damages, compensation or other relief arising out of, in respect of or attributable to an Affected Implant.
5. Pursuant to section 33ZF of the Act, a Group Member is given leave to withdraw an opt out notice if:
(a) the Group Member filed their opt out notice along with one or more pages of a Claim Form (as defined in the orders made on 3 September 2012); and
(b) the applicant and respondents consent to the withdrawal of the opt out notice; and
(c) a Notice of Withdrawal of Opt Out Notice in the form of Annexure A to these orders is signed by and filed for the Group Member.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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