Collin v Aspen Pharmacare Australia Pty Ltd
[2013] FCA 952
•18 September 2013
FEDERAL COURT OF AUSTRALIA
Collin v Aspen Pharmacare Australia Pty Ltd [2013] FCA 952
Citation: Collin v Aspen Pharmacare Australia Pty Ltd [2013] FCA 952 Parties: RODNEY COLLIN v ASPEN PHARMACARE AUSTRALIA PTY LTD and ELI LILLY AUSTRALIA PTY LTD File number(s): VID 5 of 2010 Judge(s): DAVIES J Date of judgment: 18 September 2013 Catchwords: PRACTICE AND PROCEDURE – Representative proceedings – Proposed settlement – Application for Court approval of form and content of notices to be given to group members – Group members to register their claim by a certain date to participate in settlement – Approval granted. Legislation: Federal Court of Australia Act 1976 (Cth), ss 33V(1), 33X(4), 33Y(2) Cases cited: Matthews v SPI Electricity Pty Ltd (Ruling No 13) [2013] VSC 17 Date of hearing: 18 September 2013 Date of last submissions: 18 September 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 6 Counsel for the Applicant: R Gorton QC Solicitor for the Applicant: Arnold Thomas & Becker Counsel for the First Respondent: A Payne SC with P Wallis Solicitor for the Respondents: King Wood Mallesons Counsel for the Second Respondent: J Slattery Solicitor for the Respondents: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 5 of 2010
BETWEEN: RODNEY COLLIN
ApplicantAND: ASPEN PHARMACARE AUSTRALIA PTY LTD
First RespondentELI LILLY AUSTRALIA PTY LTD
Second Respondent
JUDGE:
DAVIES J
DATE OF ORDER:
18 SEPTEMBER 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The form and content of the notice set out in Schedule 1 (“the Notice of Proposed Settlements”) is approved as the notice required under sections 33X and 33Y of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”) in respect of the proposed settlement of the proceeding agreed between the Applicant and the First Respondent (“the Aspen Proposed Settlement”) and the proposed settlement of the proceeding agreed between the Applicant and the Second Respondent (“the Lilly Proposed Settlement”).
2.The Applicant, by his solicitors, cause the Notice of Proposed Settlements:
a. to be sent by email or by prepaid post to the last known email address, or postal address, respectively of each person who has registered as a group member with the solicitors for the Applicant no later than 20 September 2013;
b. to be advertised in the form set out in Schedule 2 to this order in The Australian, the Melbourne Herald-Sun, the Sydney Daily Telegraph, the Adelaide Advertiser, the Courier-Mail, the Hobart Mercury, the West Australian, the Canberra Times and the Northern Territory News no later than 20 September 2013, such advertisement to be no larger than 20cm by 30cm in size except in relation to the advertisement in the Adelaide Advertiser which shall be no larger than 20cm by 26cm; and
c. to be displayed on the website of the Applicant’s solicitors from no later than
20 September 2013 to 8 November 2013.3.Pursuant to s 33ZF of the Act, any group member who wishes to pursue a claim for compensation from the First Respondent in the Aspen Proposed Settlement (“the Aspen Participating Group Members”) must register to do so in accordance with the terms of the Notice of Proposed Settlements.
4.Any person who does not register as an Aspen Participating Group Member (strictly in accordance with the procedure outlined in the Notice of Proposed Settlements) shall remain a group member for the purposes of any judgment or settlement in the proceeding, but shall not be entitled to participate in the Aspen Proposed Settlement, if approved.
5.Pursuant to s 33ZF of the Federal Court Act, any group member who wishes to pursue a claim for compensation from the Second Respondent in the Lilly Proposed Settlement (“the Lilly Participating Group Members”) must register to do so in accordance with the terms of the Notice of Proposed Settlements.
6.Any person who does not register as a Lilly Participating Group Member (strictly in accordance with the procedure outlined in the Notice of Proposed Settlements) shall remain a group member for the purposes of any judgment or settlement in the proceeding, but shall not be entitled to participate in the Lilly Proposed Settlement, if approved.
7.The Applicant file an interlocutory application seeking an order approving the Aspen Proposed Settlement and an order approving the Lilly Proposed Settlement in accordance with section 33V of the Federal Court Act (“the Settlements Interlocutory Application”) together with any affidavits in support and a written outline of submissions by 11 November 2013 and (subject to paragraph 9 of these orders) must be served on the parties by no later than 4pm on 15 November 2013.
8.The Applicant has leave to file any confidential affidavit in support of the Settlements Interlocutory Application which will be the subject of an application for an order under s 37AF of the Federal Court Act by delivering to the Court in a sealed envelope marked “Confidential Affidavit – Not to be Opened Except by Direction of a Judge of the Court”.
9.Any person (including any group member) who wishes to oppose the making of orders in accordance with the Settlements Interlocutory Application file a written outline of the grounds on which they oppose one or both of the proposed settlements together with any affidavit evidence upon which they rely with the Melbourne Registry of the Court by 4pm on 15 November 2013 with a copy to be served on Arnold Thomas & Becker.
10.Arnold Thomas & Becker is to provide to the parties a copy of any affidavit and outline served on it pursuant to paragraph 9 of these orders by no later than
18 November 2013.11.The Settlements Interlocutory Application is listed for hearing at 10:15am on
29 November 2013.12.The parties have liberty to apply on 2 days’ notice to the Judge of the Court assigned to hear the Settlements Interlocutory Application.
13.Leave is granted to the Applicant, First Respondent and Second Responde to file the affidavits of Allanah Goodwin sworn 6 September 2013, Moira Leonie Saville sworn 3 September 2013 and Ross David McInnes sworn 9 September 2013 respectively.
14.Until further order, under section 37AF of the Federal Court Act, the disclosure (by publication or otherwise) of:
a. Annexure “MLS-21” to the affidavit of Moira Leonie Saville sworn 3 September 2013; and
b. Annexure “RDM-1” to the affidavit of Ross David McInnes sworn 9 September 2013;
is prohibited except that this suppression order does not prohibit disclosure of those documents to the parties to the proceeding or to their legal representatives. This suppression order is made on the ground that it is necessary to prevent prejudice to the proper administration of justice for the purposes of section 37AG of the Federal Court Act.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 5 of 2010
BETWEEN: RODNEY COLLIN
ApplicantAND: ASPEN PHARMACARE AUSTRALIA PTY LTD
First RespondentELI LILLY AUSTRALIA PTY LTD
Second Respondent
JUDGE:
DAVIES J
DATE:
18 SEPTEMBER 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is a representative proceeding pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”). The applicant has alleged against both respondents that they failed to warn, or adequately warn, consumers about the potential side effects of the drug Permax. The applicant alleges that the consumption of Permax by persons suffering from Parkinson’s Disease or Restless Leg Syndrome caused them to suffer from various forms of compulsive behaviour, as the result of which the applicant and the group members whom he represents suffered loss and damage.
The parties have agreed to settle the proceeding, subject to approval by the Court. The approval of the Court is required by s 33V(1) of the Federal Court Act. Before any approval under s 33V(1) may be given, notice of the application for that approval must be given to group members pursuant to s 33X(4) of the Federal Court Act and by s 33Y(2) of the Federal Court Act, the form and content of such a notice must be approved by the Court.
The respondents have applied for orders approving the form and content of the notice of the proposed settlements and the manner in which notification is to be given to group members. The Court’s concern at this stage is to ensure that all those with an interest in the proposed settlement have adequate notification of the proposed settlement and of their rights in order to make an informed decision. These matters will be an important consideration for the Court in deciding whether this settlement should be approved. The form and content of the proposed notices, which contain the kind of information detailed in paragraph 11.5 of Federal Court Practice Note CM 17, and the manner of notification should be adequate to meet that intended effect. The notices are to be sent to all persons who have registered as group members and will be advertised in national and state and territory newspapers and displayed on the applicant’s solicitors’ website.
The respondents also seek orders that would have the effect of closing the class of group members by precluding a group member from pursuing a claim for compensation from the respondents unless that group member has registered as a participating group member in the proposed settlements in accordance with the procedure outlined in the notices. The notices advise that if a group member wishes to participate, the group member will be asked to sign and return deeds poll to participate in one or both settlements. The period given to group members to sign and return the deeds poll is 11 November 2013, which is around 50 days from the date by which notices must be posted, advertised and displayed on the website of the applicant’s solicitors. Group members who do not meet that deadline may still participate if they sign and return the deeds poll with an explanation for the delay to the applicant’s solicitor before the hearing of the application for approval of the settlement, in which event the applicant will provide the explanation to the Court. If the Court so orders, the group member will be a participating group member for the purposes of the settlement.
Orders fixing a date by which group members must identify themselves and which preclude a group member from maintaining a claim if that person did not take steps to identify himself or herself by a certain date have been made in a number of class actions at various stages of the proceeding: Matthews v SPI Electricity Pty Ltd (Ruling No 13) [2013] VSC 17 and the cases cited at [24]; s 33ZF of the Federal Court Act. I am satisfied that it is appropriate and reasonable to make the proposed orders at this stage of the proceeding. Comprehensive steps have been taken by the applicant’s solicitors since 2007 to identify group members and the applicant’s solicitors believe that it is likely that the class has been significantly captured. The requirement of registration will enable finality to be given to the proceeding, if settlement is approved. I am satisfied that the period in which people are required to register as participating group members is sufficiently ample to allow them to consider and respond to the notices on an informed basis.
Accordingly, I propose to make the orders sought by the respondents and note that the applicant joins in those orders.
“Schedule 1”
CLASS ACTION – USERS OR FORMER USERS OF PERMAX
NOTICE OF PROPOSED SETTLEMENTS
Rodney Collin v Aspen Pharmacare Australia Pty Ltd & Anor (VID 5 of 2010)
(“Permax Class Action”)Date of Notice: 20 September 2013
This notice contains information which may affect your legal rights. Please read this notice carefully, if you do not understand any part of it, you may wish to seek legal advice in relation to its contents.
On 29 November 2013, the Federal Court of Australia will be asked to approve proposed settlements of the claims against the First Respondent (Aspen Pharmacare Australia Pty Ltd) and the Second Respondent (Eli Lilly Australia Pty Ltd) in the Permax Class Action.
The Permax class action has been pursued by Mr Rodney Collin against Aspen Pharmacare Australia Pty Ltd and Eli Lilly Australia Pty Limited. The proceeding arises out of the alleged side effects of changed and abnormal behaviour, being compulsive gambling, compulsive spending, compulsive eating, hyper-sexuality and/or punding following the consumption of Permax.The Applicant is pursuing claims in negligence and contraventions of the Trade Practices Act 1974 (Cth), and seeks compensation for himself and on behalf of group members for loss and damage arising from injuries and financial loss allegedly suffered as a result of the consumption of Permax. The Court documents which set out the basis for the claim, and the Respondents’ response to them are available by contacting Arnold Thomas & Becker on
(03) 9614 1433 or 1300 333 300, emailing [email protected] or online at you wish to participate in one or both of the proposed settlements, you must take the steps referred to in section 3 of this notice. If you wish to make submissions opposing one or both of the proposed settlements, you must take the steps referred to in section 4 of this notice.
If you do nothing, you may lose your rights to bring any claim for damages against the First or Second Respondents in relation to the subject matter of the Permax Class Action (unless you opted-out of the Permax Class Action by giving written notice to the Federal Court before 15 February 2013).
The Federal Court has ordered that this notice be sent to those Group Members who have previously registered as Group Members with Arnold Thomas & Becker. You have been sent this notice because you have previously registered as a group member with Arnold Thomas & Becker.1. PROPOSED SETTLEMENTS OF THE PERMAX CLASS ACTION
On 26 July 2013, the Applicant and the First Respondent to the Permax Class Action notified the Court that they had agreed on terms for the settlement of the claims against the First Respondent in the Permax Class Action in which you may be a group member (“the Aspen Proposed Settlement”). On the same day, the Applicant and the Second Respondent also notified the Court that they had reached in principle agreement and subsequently agreed on terms of the settlement of the claims against the Second Respondent on 3 September 2013 (“the Lilly Proposed Settlement”).
The terms of the Aspen Proposed Settlement and the process by which the settlement amount is proposed to be distributed (subject to Court approval) will be outlined in documents entitled “Settlement Deed” and “Settlement Distribution Scheme”. The terms of the Lilly Proposed Settlement and the process by which the settlement amount is proposed to be distributed (subject to Court approval) will be outlined in documents entitled Settlement Deed and Settlement Distribution Scheme. Each of the documents mentioned above can be inspected at the offices of Arnold Thomas & Becker, Level 3, 395 Collins Street, Melbourne, Victoria, from 20 September 2013, between the hours of 9am and 5pm Monday to Friday, or copies will be provided on request by Arnold Thomas & Becker. You can contact them by telephone on (03) 9614 1433 or 1300 333 300 or by emailing [email protected].
A proposed settlement must be approved by the Court under section 33V of the Federal Court of Australia Act 1976 (Cth) before it takes effect. It is not necessary for both proposed settlements to be approved by the Court for one of the proposed settlements to take effect if only one proposed settlement is approved. If the Aspen Proposed Settlement is not approved by the Court, the Permax Class Action will continue against the First Respondent. If the Lilly Proposed Settlement is not approved by the Court, the Permax Class Action will continue against the Second Respondent.2. WHO THIS NOTICE AFFECTS
The Permax Class Action is brought by the Applicant (Mr Rodney Collin) on his own behalf and on behalf of all persons to whom all of the following criteria apply (“Group Members”):
a. You were diagnosed with Parkinson’s disease or Restless Legs Syndrome; and
b. You obtained at least one prescription of Permax tablets from a doctor in Australia between 1994 and 2010 to treat that illness; and
c. Both before and after 28 March 2003 you used the prescription and consumed the tablets; and
d. After commencing to consume and while consuming the tablets you suffered changed and abnormal behaviour for you being:
i. Compulsive gambling;
ii. Compulsive spending;
iii. Compulsive eating;
iv. Hypersexuality;
v. Punding (meaning a compulsive fascination with and performance of repetitive, mechanical tasks);
vi. or a combination of one or more behaviours referred to above; and
e. You suffered loss and / or damage as a result of that changed and abnormal behaviour caused by the tablets.
If you meet the above criteria you are a Group Member unless you filed a written notice with the Federal Court opting out of the Class Action on or before 15 February 2013.
This notice affects the Applicant and Group Members in the Permax Class Action.
3. IF YOU WISH TO PARTICIPATE IN ONE OR BOTH OF THE PROPOSED SETTLEMENTS
If you are a Group Member and wish to participate in one or both of the proposed settlements, you should contact Arnold Thomas & Becker and notify your intention to be a participating group member in one or both of the settlements by 7 October 2013. You can contact Arnold Thomas & Becker by telephone on (03) 9614 1433 or 1300 333 300 or by emailing [email protected] or by writing to Arnold Thomas & Becker, 3rd Floor, 395 Collins Street, Melbourne VIC 3000.
Arnold Thomas & Becker will then provide you with two deeds poll, one in relation to each of the proposed settlements. If you wish to participate in the Aspen Proposed Settlement, you must execute the deed poll which refers to Aspen Pharmacare Australia and return it to Arnold Thomas & Becker by no later than 11 November 2013. If you wish to participate in the Lilly Proposed Settlement, you must execute the deed poll which refers to Eli Lilly Australia and return it to Arnold Thomas & Becker by no later than 11 November 2013. If you wish to participate in both proposed settlements, you must execute both deeds poll and return both deeds poll to Arnold Thomas & Becker by no later than 11 November 2013.
If you do not execute and return a deed poll to Arnold Thomas & Becker by 11 November 2013 in respect of either proposed settlement, then you may still be entitled to participate in that proposed settlement, but only if you execute and return the deed poll in relation to that proposed settlement to Arnold Thomas & Becker before the hearing of the application for approval of the settlement on 29 November 2013, provide a written explanation to Arnold Thomas & Becker for not having done so by the above deadline of 11 November 2013, and in light of your explanation the Federal Court orders that you are entitled to be a participating group member in that proposed settlement.
If you do not execute and return a deed poll in respect of either proposed settlement to Arnold Thomas & Becker by 11 November 2013 (or the Federal Court does not otherwise order that you are entitled to be a participating group member on the basis set out in the preceding paragraph), then if that proposed settlement is approved, you will not be eligible to participate in the settlement AND you will be prevented from at a later stage commencing, continuing or taking any action, claim or proceeding against the respondent to whom that settlement relates for damages, compensation or other relief arising out of, in respect of or attributable to any of the claims in the Permax Class Action.4. IF YOU WISH TO MAKE A SUBMISSION OPPOSING ONE OR BOTH OF THE PROPOSED SETTLEMENTS
If you wish to make submissions on why the Court should not approve the Aspen Proposed Settlement and/or the Lilly Proposed Settlement, you are required to file with the Court, and serve on Arnold Thomas & Becker, by no later than 4pm on 15 November 2013, a written outline of grounds for opposing the proposed settlement(s) together with any affidavit evidence on which you rely.
The address for Arnold Thomas & Becker is Level 3, 395 Collins Street, Melbourne, Victoria 3000.
The address for the Court is as follows:Re Rodney Collin v Aspen Pharmacare Australia Pty Ltd & Anor VID 5/2010
Victoria District Registry
Federal Court of Australia
Commonwealth Law Courts Building
305 William Street
Melbourne VIC 3000
You may then attend and make submissions to the Court in Melbourne at 10:15am on
29 November 2013. At that time, the Court will hear the application for an order approving the Aspen Proposed Settlement and an order approving the Lilly Proposed Settlement.5. FURTHER INFORMATION
Please consider the above matters carefully. If there is anything of which you are unsure, you can contact Arnold Thomas & Becker on (03) 9614 1433 or 1300 333 300 or by emailing [email protected] or contact another lawyer of your choice without delay.
“Schedule 2”
IMPORTANT NOTICE TO USERS OR FORMER USERS OF PERMAX
If in the period 1994 to 2010 you were prescribed Permax for the treatment of Parkinson’s Disease or Restless Leg Syndrome
AND
You have suffered from changed and abnormal behaviour for you being one or more of compulsive gambling, compulsive spending, compulsive eating, hyper-sexuality or punding (meaning a compulsive fascination with and performance of repetitive, mechanical tasks)
THEN THIS NOTICE IS IMPORTANT TO YOUA class action has been commenced in the Federal Court of Australia seeking compensation for loss and damage allegedly suffered as a result of the consumption of Permax (the Permax Class Action). In the Permax Class Action, the applicant is pursuing compensation for himself and the class on whose behalf the action is brought (“group members”)
You may be a group member.
On 26 July 2013, the applicant and the first respondent notified the Court of a proposed settlement of the claims against the First Respondent. On the same day, the applicant and the second respondent also notified the Court that they had reached in principle agreement and subsequently agreed on terms of the settlement of the claims against the second respondent on 3 September 2013. Each of the proposed settlements is subject to Court approval. The Court has ordered that information about both settlements be provided to people who have registered as group members with the class action solicitors, Arnold Thomas & Becker.
What you need to do
If you think you are a group member and you wish to participate in one or both of the proposed settlements, you should contact Arnold Thomas & Becker by 7 October 2013 to obtain deeds poll relating to the settlements. To participate in one or both proposed settlements, you must execute and return the deed(s) poll relating to that settlement to Arnold Thomas & Becker BEFORE 11 November 2013.If you are a group member and you wish to oppose one or both of the settlement, you must file and serve a written outline of grounds for opposing the proposed settlement(s) together with any affidavit evidence on which you rely BEFORE 15 November 2013.
If you do nothing, and one or both of the proposed settlements are approved, you will not be eligible to participate in any approved settlement and you will lose any rights you may have to make a claim for compensation against a respondent who is party to an approved settlement relating to the subject matter of the Permax Class Action.
IT IS IMPORTANT THAT YOU TAKE STEPS TO PROTECT YOUR INTERESTS
Comprehensive notices which detail the nature of the Permax Class Action and the options for group members can be obtained from the class action solicitors, Arnold Thomas & Becker, by:
·Visiting their website at (If you are not connected to the internet you could enquire at your local public library for internet access and assistance)
·Telephoning them on 1300 333 300 or (03) 9614 1433
·Writing to Arnold Thomas & Becker, 3rd Floor, 395 Collins Street, Melbourne VIC 3000 and requesting that a copy of the notice be mailed to you.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate:
Dated: 18 September 2013
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