REPRESENTATIVE PROCEEDINGS — representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) — application for leave to appeal from orders granting leave to amend statement of claim to alter description of the group members — parties under misapprehension as to existing class composition —discussion of powers within Part IVA to allow amendments to group definition and the legal consequences of amending group definition — observations as to the need for certainty in class composition and inaptness of analogues from non-representative proceedings to changing class composition — whether error by primary judge in choosing a cut-off date — no error established — whether amendments to class composition should relate back to commencement of proceeding — amendment should take effect from date of filing of amended pleading— leave to appeal granted in part and appeal allowed in part – cross appeal dismissed
PRACTICE AND PROCEDURE — application for leave to appeal in relation to allowing an amendment to add further allegations of a failure to warn where evidence to support allegations was held to have been received and the amendment was contended to be within the scope of existing pleadings or consistent with the way the case was run at an initial trial — leave to appeal refused
[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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AGLC
Ethicon Sàrl v Gill [2018] FCAFC 137
Case
[2018] FCAFC 137
Decision Date
CaseChat Overview and Summary
Ethicon Sàrl sought leave to appeal from orders granting leave to amend the statement of claim to alter the description of the group members in a representative proceeding brought under Part IVA of the Federal Court of Australia Act 1976 (Cth). The parties were under a misapprehension as to the existing class composition, and the discussion included the powers within Part IVA to allow amendments to group definition and the legal consequences of amending group definition. There were observations regarding the need for certainty in class composition and the inaptness of analogies from non-representative proceedings to changing class composition. The issue of whether there was an error by the primary judge in choosing a cut-off date was also discussed, but no error was established. Additionally, the matter of whether amendments to class composition should relate back to the commencement of the proceeding was considered, with the conclusion that the amendment should take effect from the date of filing of the amended pleading.
The court addressed the application for leave to appeal in relation to allowing an amendment to add further allegations of a failure to warn, where evidence to support the allegations was held to have been received, and the amendment was contended to be within the scope of existing pleadings or consistent with the way the case was run at an initial trial. The leave to appeal was refused in this respect. The court granted time to allow for the filing of the application for leave to appeal and granted leave to appeal the orders of the primary judge made on 9 April 2018 insofar as they related to the issue of group definition, restricted to ground 2 of the draft notice of appeal. The application for leave to appeal was otherwise dismissed. Insofar as it related to ground 2, the draft notice of appeal stood as the notice of appeal. The appeal was allowed in part, and a further order was made that the amendment to the fifth amended statement of claim, insofar as that amendment related to the definition of group members, take effect from the date of the filing of that document. Leave was granted to cross-appeal, but the cross-appeal was dismissed. There was no order as to costs in relation to the applications for leave to appeal and cross-appeal and the appeal and the cross-appeal.
Orders
Orders of the court
1. Time be extended to allow for the filing of the application for leave to appeal and leave be granted to appeal the orders of the primary judge made on 9 April 2018 insofar as they relate to the issue of group definition and restricted to ground 2 of the draft notice of appeal.
2. The application for leave to appeal be otherwise dismissed.
3. Insofar as it relates to ground 2, the draft notice of appeal stand as the notice of appeal.
4. The appeal be allowed in part, and that in addition to the orders made by the primary judge on 9 April 2018, a further order be made that the amendment to the fifth amended statement of claim, insofar as that amendment relates to the definition of group members, take effect from the date of the filing of that document.
5. Leave be granted to cross-appeal.
6. The cross-appeal be dismissed.
7. There be no order as to costs in relation to the applications for leave to appeal and cross-appeal and the appeal and the cross-appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.