Courtney v Medtel Pty Limited (No 6)

[2004] FCA 1598

FEDERAL COURT OF AUSTRALIA

Courtney v Medtel Pty Limited (No 6) [2004] FCA 1598

KEVIN GLYNN COURTNEY in a representative capacity on behalf of the persons referred to in par 1 of the Eighth Amended Statement of Claim v MEDTEL PTY LIMITED & Anor
NSD 661 of 2000

SACKVILLE J
SYDNEY
3 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 661 of 2000

BETWEEN:

KEVIN GLYNN COURTNEY in a representative capacity on behalf of the persons referred to in par 1 of the Eighth Amended Statement of Claim
APPLICANT

AND:

MEDTEL PTY LIMITED
(acn 076 530 946)
FIRST RESPONDENT

NO SECOND RESPONDENT

PACESETTER INC a Delaware corporation with its principal place of business 15900 Valley View Court, Sylmar, California
THIRD RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

3 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The settlement agreement embodied in:

(a)the Deed of Settlement which is Annexure 1 to these Orders; and

(b)the Settlement Scheme which is Annexure 2 to these Orders;

be approved for the purposes of s 33V of the Federal Court of Australia Act 1976 (Cth) (‘the Act’),

2. Pursuant to subs 33J(3) of the Act, the date by which the estate of the late Kevin Hunter may opt out of these proceedings be extended to 26 October 2004.
3. The Amended Notice of Motion filed by the Applicant on 13 July 2004 be dismissed.
4. The Notice of Motion filed by the Respondents on 1 July 2004 be dismissed.
5. The proceedings otherwise be dismissed but without prejudice to such entitlement as the Respondents may have to re-list the proceedings before this Court pursuant to cl 2.7 of Sch 1 to the Deed of Settlement.
6. All costs orders be vacated.

THE COURT NOTES THAT:

7. The group members affected by these Orders are the 462 persons or representatives of deceased estates identified in the affidavit of Kathryn Tanos sworn on 6 December 2004.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ANNEXURE 1 TO THE ORDERS

ANNEXURE 2 TO THE ORDERS

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 661 of 2000

BETWEEN:

KEVIN GLYNN COURTNEY in a representative capacity on behalf of the persons referred to in par 1 of the Eighth Amended Statement of Claim
APPLICANT

AND:

MEDTEL PTY LIMITED
(acn 076 530 946)
FIRST RESPONDENT

NO SECOND RESPONDENT

PACESETTER INC a Delaware corporation with its principal place of business 15900 Valley View Court, Sylmar, California
THIRD RESPONDENT

JUDGE:	SACKVILLE J
DATE:	3 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In these proceedings I delivered a judgment on 2 November 2004 (Courtney v Medtel Pty Limited (No 5) [2004] FCA 1406). That judgment was delivered in response to an application by the parties pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (‘the Act’) for approval of the proposed settlement in the proceedings. In the judgment, I indicated that I was prepared to approve the settlement subject to the resolution of two matters.

2. The two matters requiring attention were the following:

   (i)   Steps were to be taken to ensure that the few Remaining Group Members who are to receive no compensation in respect of the explantation of a pacemaker (because the persons they represent died before proceedings were commenced but after the Hazard Alert was issued) have a fully informed opportunity to opt out of the proceedings.

   (ii)An affidavit was to be provided from an independent solicitor or costs consultant addressing the issues I identified in the judgment.

3. The parties have addressed the first issue by adducing evidence as to whether there are indeed any Remaining Group Members who fall into the category I identified.  Although Mr Clark has frankly indicated that the inquiries cannot be definitive in this respect, I am satisfied that all appropriate inquiries have been made and that, on the balance of probabilities, there are no Remaining Group Members who fall within the category that I identified in the judgment.  Accordingly, that difficulty has been resolved.

4. An affidavit has been filed from Mr Joseph Mazzeo which address the second issue.  Mr Mazzeo, who is a solicitor and who practices as a costs consultant, addresses the question of costs I raised in the judgment.  In the light of Mr Mazzeo's affidavit, I am satisfied of the matters about which I expressed concern.

5. The third matter that I should note is that the settlement contemplates (in cl 2.7 of Sch 1 to the Settlement Scheme) that if a dispute as to the appropriate classification of a Remaining Group Member cannot be resolved, the respondents must apply to re-list the matter before the Court and seek a direction in relation to the appropriate settlement category for the Group Member concerned.  It is convenient that orders be made disposing of the proceedings in this Court but preserving such entitlement as the respondents may have pursuant to cl 2.7.  I propose therefore to make an order dismissing the proceedings, but without prejudice to such entitlement as the respondents may have to apply to the Court pursuant to cl 2.7 of Sch 1 to the Settlement Scheme. 

6. The fourth matter is that s 33ZB of the Act provides that a judgment in a representative proceeding must describe or otherwise identify the group members who will be affected by it. The judgment binds all such persons, other than any person who has opted out of the proceeding pursuant to s 33J.

7. While it may be possible to identify the Remaining Group Members by reference to the pleadings in the case and the affidavit evidence, I think it preferable to list the 462 Remaining Group Members.  Mr Clark, who appears for the respondents, indicated his could be done by filing an affidavit listing the 462 Remaining Group Members.  I propose that the orders disposing of the proceedings include a notation that the Remaining Group Members affected by the orders are the persons or representatives of deceased estates identified in the affidavit addressing that issue.

8. The parties have indicated that there are 16 deceased estates whose representatives until very recently were believed to be Remaining Group Members.  None of these is a client of the applicant’s solicitors.  The parties now accept that none of the representatives of these estates is in fact a Remaining Group Member having regard to the definition of the represented group in the pleadings.

9. Under the Settlement Scheme, none of the estates is to receive any compensation.  Each of the estates has been contacted and none has opposed the Settlement Scheme.  However, the true position appears to be that since the representatives are not Remaining Group Members, they will not be bound by the orders that have been made in the proceedings.

10. Mr Clark has indicated that the respondents will write to each of the representatives concerned and explain the true situation.  There is very unlikely in my view to be any injustice in this course.  If representatives of any of these estates wish to bring proceedings themselves, they will not be precluded from doing so by the orders I propose to make.  Therefore, I do not regard the misapprehension under which the parties operated as a barrier to approving the Settlement Scheme.

11. The orders provide for the estate of one person to opt out of the proceedings.  The affidavit of Kathryn Tanos sworn 3 December 2004 explains the reason for that order being made.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:            7 December 2004

Counsel for the Applicant:	P Cashman with R Gilsenan
Solicitor for the Applicant:	Maurice Blackburn Cashman
Counsel for the Respondents:	SS Clark with C Harris
Solicitor for the Respondents:	Clayton Utz
Date of Hearing:	3 December 2004
Date of Judgment:	3 December 2004