Ethicon Sàrl v Gill

Case [2018] FCAFC 137


FEDERAL COURT OF AUSTRALIA

Ethicon Sarl v Gill [2018] FCAFC 137

Appeal from: Gill v Ethicon SARL [2018] FCA 470
File number: NSD 668 of 2018
Judges: ALLSOP CJ, MURPHY AND LEE JJ
Date of judgment: 23 August 2018
Catchwords:

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

Legislation:

Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth))

Competition and Consumer Act 2010 (Cth)

Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 33ZB, 33C, 33H, 33K, 33ZE, 33J, 33V, 33ZE, 33L, 33Q, 33R, 33S, 33T, 33X, 33ZB

Judiciary Act 1903 (Cth) s 79

Trade Practices Act 1974 (Cth)

Cases cited:

City of Swan v McGraw-Hill Financial Inc [2014] FCA 931; 223 FCR 328

Dillon v RBS Group (Australia) Pty Ltd [2017] FCA 896; 252 FCR 150

Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397

Gibson v Malaysian Airlines System Berhad (No 2) [2017] FCA 701

Multiplex Funds Management Ltd v P Dawson Nominees Pty Ltd [2007] FCAFC 200;164 FCR 275

Street & 7 v Luna Park Sydney Pty Ltd [2006] NSWSC 230

Voxson Pty Ltd v Telstra Corporation Limited (No 7) [2017] FCA 267; 343 ALR 681

Weldon v Neal (1887) 19 QBD 394

Wong v Silkfield Pty Ltd [1999] HCA 48; 199 CLR 255

Date of hearing: 13 August 2018
Registry: Sydney
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Category: Catchwords
Number of paragraphs: 54
Counsel for the Applicants / Cross-Respondents: Ms K Morgan SC with Mr D Wong
Solicitor for the Applicants / Cross-Respondents: Clayton Utz
Counsel for the Respondents / Cross-Appellant: Mr D Graham SC with Mr A Naylor
Solicitor for the Respondents / Cross-Appellant: Shine Lawyers

ORDERS

Continue reading Ethicon Sàrl v Gill

Sign in free to access the full text

Details
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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.