Ethicon Sarl & Ors v Gill & Ors - [2021] HCATrans 187

[2021] HCATrans 187

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S47 of 2021

B e t w e e n -
ETHICON SARL
First Applicant
INC ETHICON
Second Applicant
JOHNSON & JOHNSON MEDICAL PTY LIMITED ACN 000 160 403
Third Applicant
and
KATHRYN GILL
First Respondent
DIANE DAWSON
Second Respondent
ANN SANDERS
Third Respondent
Application for special leave to appeal

KEANE J
GORDON J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, MELBOURNE AND SYDNEY

ON FRIDAY, 5 NOVEMBER 2021, AT 1.30 PM

____________________

KEANE J: In accordance with the protocol when the Court is sitting remotely, I will announce the appearances for the parties.

MR B.W. WALKER, SC appears with MR D.T.W. WONG for the applicants. (instructed by Clayton Utz)

MR A.J.L BANNON, SC appears with MS Z.L.M. HILLMAN for the respondents. (instructed by Shine Lawyers)

KEANE J: Yes, Mr Walker.

MR WALKER: May it please your Honours. The appeal for which we seek special leave is an appeal which would accept what might be called primary findings of fact. The very extensive record would not require to be ransacked or paraded before the Court in order to make the points we want to make. We do, however, say that there are ultimate conclusions of characterisation both for the purposes of statutory liability and common law negligence which raise issues of principle that go far beyond the issues joined between the parties in these representative proceedings.

The medical devices in question are those to which names are given and purpose explained in paragraphs 12 and following in our special leave application in the book at 1887. I need not dwell on them except to remind your Honours that there are stress urinary incontinence devices – the SUI. There were five at trial, four of which are still in commerce in this country. There were four pelvic organ prolapse devices which are no longer on the market, but those five plus four – nine – were the group of devices for which we have been held liable, to the extent that that is a straightforward statement in representative proceedings.

Though it is not of moment to our special leave argument, your Honours will have seen in paragraph 18 of our special leave application the particular use of particular devices of particular named applicants. One of them, that is, Mrs Sanders, was implanted with TVT which is one of the SUI or tape products.

So, at the outset of the case, one can see that by dint of compliance with the injunctions granted to control the marketing or commercialising of these products – as to the four still in commerce, your Honours know that they are treated by the court, that is, the Federal Court at trial and the Full Court dismissing an appeal, to be products, which, so long as injunctions are complied with – principally concerning warnings to accompany their distribution – they…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] HCATrans 187
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Victoria, Justice Gleeson considered a dispute between Ethicon Sarl and its related entities (the applicants) and Gill and other individuals (the respondents). The proceedings concerned allegations of breaches of contract and misleading and deceptive conduct in relation to the sale of a medical device business. The applicants sought to restrain the respondents from pursuing certain claims in separate proceedings.

The central legal issues before the Court were whether the respondents were estopped from pursuing their claims in the separate proceedings, and whether the applicants were entitled to an interlocutory injunction to prevent those proceedings from continuing. Specifically, the Court had to determine if the respondents' conduct in previous dealings and agreements gave rise to an estoppel that would prevent them from asserting their current claims, and if the balance of convenience favoured granting an injunction.

Justice Gleeson's reasoning focused on the principles of estoppel, particularly issue estoppel and cause of action estoppel, and the requirements for granting an interlocutory injunction. The Court analysed the prior litigation and agreements between the parties to ascertain if the issues raised in the current proceedings had been finally determined or if the respondents were precluded from raising them. The Court also considered the strength of the applicants' case, the potential for irreparable harm, and whether damages would be an adequate remedy, in assessing the balance of convenience.

The Court ultimately dismissed the application for an interlocutory injunction, finding that the applicants had not established a sufficient likelihood of success on the merits to justify restraining the respondents from pursuing their claims in the separate proceedings. The Court concluded that the balance of convenience did not favour the grant of an injunction.

Orders