Darcy v Medtel Pty Limited (No 4)

[2004] FCA 1599

FEDERAL COURT OF AUSTRALIA

Darcy v Medtel Pty Limited (No 4) [2004] FCA 1599

PATRICK NOEL DARCY in a representative capacity on behalf of the persons referred to in par 1 of the Third Amended Statement of Claim v MEDTEL PTY LIMITED & Anor
NSD 932 of 2001

SACKVILLE J
SYDNEY
3 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 932 of 2001

BETWEEN:

PATRICK NOEL DARCY in a representative capacity on behalf of the persons referred to in par 1 of the Third Amended Statement of Claim
APPLICANT

AND:

MEDTEL PTY LIMITED
(acn 076 530 946)
FIRST RESPONDENT

PACESETTER INC a Delaware corporation with its principal place of business 15900 Valley View Court, Sylmar, California
SECOND 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. The proceedings 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.
3. All costs orders be vacated.
4. The parties be granted liberty to apply in relation to any costs orders sought.

THE COURT NOTES THAT:

5. The group members affected by these Orders are the 160 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 932 of 2001

BETWEEN:

PATRICK NOEL DARCY in a representative capacity on behalf of the persons referred to in par 1 of the Third Amended Statement of Claim
APPLICANT

AND:

MEDTEL PTY LIMITED
(acn 076 530 946)
FIRST RESPONDENT

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

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

REASONS FOR JUDGMENT

1. In this matter, the issues in substance are identical to those that I have dealt with in Courtney v Medtel Pty Limited (No 6) [2004] FCA 1598. I have been provided with detailed written submissions which I have initialled and placed with the file. Those submissions, in the light of my earlier judgment in Courtney v Medtel (No 6), satisfy me that the settlement ought to be approved pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (Cth).

2. The orders will follow the same form as those that are to be made in Courtney v Medtel (No 6).  I note that the respondents have undertaken to write to the 10 persons who were thought to be Remaining Group Members but in fact were not.  In this respect, the respondents will follow the same course as in Courtney v Medtel (No 6).

3. An affidavit has been filed identifying the 160 Remaining Group Members who are bound by the judgment. 

4. I will qualify the orders by reserving to the parties, notwithstanding the dismissal of the proceedings, liberty to apply in relation to any cost orders that any party says ought to be made.

I certify that the preceding four (4) 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