Fenton v Monsanto Australia Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Fenton v Monsanto Australia Pty Ltd [2024] FCA 1525

File numbers: NSD 1971 of 2019
VID 255 of 2020
VID 256 of 2020
VID 257 of 2020
Judgment of: LEE J
Date of judgment: 24 December 2024
Catchwords: REPRSENTATIVE PROCEEDINGS – discontinuance and dismissal – where applicant in duplicative representative proceeding unsuccessful in initial trial concerning the alleged carcinogenic effects of Roundup – where applicant seeks leave to discontinue the proceeding – where respondent seeks terms on discontinuance – whether discontinuance fair and reasonable and in the interests of group members – observations as to the difference between discontinuance and dismissal – necessity of a limitation period order – observations as to meaning of “determined” – where discontinuance fair and reasonable – where no order as to costs – discontinuance approved – orders made
Legislation:

Federal Court of Australia Act 1976 (Cth) Pts IVA, VB; ss 33J, 33N(1), 33V(1), 33X, 33ZF, 33ZG, 43

Federal Court Rules 2011 (Cth) rr 26.12, 26.12(2)

District Court Act 1973 (NSW)

Cases cited:

Davaria Pty Limited v 7-Eleven Stores Pty Ltd [2020] FCA 1234

McNickle v Huntsman Chemical Company Australia Pty Ltd (Initial Trial) [2024] FCA 807

Moira Shire Council v JLT Risk Solutions [2024] VSC 4

Patton v Buchanan Borehole Collieries Pty Ltd (1993) 178 CLR 14

R&B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Limited (Administrators Appointed) (in liq) (Carriage Application) [2022] FCA 1444

Turner v TESA [2022] FCA 435; (2022) 314 IR 214

UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77

Wotton v State of Queensland [2009] FCA 758; (2009) 109 ALD 534

Wreck Bay Aboriginal Community Council v Commonwealth of Australia (No 2) [2023] FCA 811

MacRae, D, Encyclopaedic Australian Legal Dictionary (LexisNexis, 2002)
LexisNexis, Practice and Procedure High Court and Federal Court of Australia (2014)
Division: General Division
Registry: New South Wales
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Number of paragraphs: 41
Date of hearing: 24 December 2024
Counsel for the applicant in NSD 1971 of 2019: Mr G Drew
Solicitor for the applicant in NSD 1971 of 2019: LHD Lawyers
Counsel for the applicants in VID 255 of 2020, VID 256 of 2020 and VID 257 of 2020: Mr D Dealehr
Solicitor for the applicants in VID 255 of 2020, VID 256 of 2020 and VID 257 of 2020: Carbone Lawyers
Counsel for the respondent in NSD 1971 of 2019, VID 255 of 2020, VID 256 of 2020 and VID 257 of 2020: Mr S Finch SC with Mr D Habashy
Solicitor for the respondent in NSD 1971 of 2019, VID 255 of 2020, VID 256 of 2020 and VID 257 of 2020: Herbert Smith Freehills

 

ORDERS

NSD 1971 of 2019
BETWEEN:

JOHN FENTON

Applicant

AND:

MONSANTO AUSTRALIA PTY LTD (ACN 006 725 560)

Respondent

ORDER MADE BY:

LEE J

DATE OF ORDER:

24 DECEMBER 2024

THE COURT ORDERS THAT:

1.Pursuant to s 33V(1) of the Federal Court of Australia Act 1976

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Details
Case
[2024] FCA 1525
Decision Date

CaseChat Overview and Summary

In Fenton v Monsanto Australia Pty Ltd, the applicant, Fenton, sought leave to discontinue a class action lawsuit against Monsanto Australia, which was alleged to have manufactured and sold Roundup, a herbicide with carcinogenic properties. The case was considered a duplicative representative proceeding, as a similar case had already been unsuccessfully tried. The applicant sought to discontinue the proceeding, while the respondent sought terms for such discontinuance. The Federal Court was tasked with determining whether the discontinuance was fair, reasonable, and in the interests of the group members, as well as considering the implications of discontinuance versus dismissal and the necessity of a limitation period order.

The court examined the difference between discontinuance and dismissal, noting that discontinuance did not equate to a finding of the proceeding being without merit, unlike dismissal. The court also considered the meaning of "determined" within the context of the proceeding. The court found that the discontinuance was fair and reasonable and in the interests of the group members. The court declined to make an order as to costs, resulting in all outstanding costs orders being vacated.

The court approved the discontinuance and ordered the dismissal of the proceeding. The court further noted that the parties had entered into a deed of release on 12 December 2024. The entry of orders was governed by Rule 39.32 of the Federal Court Rules 2011. The court's decision and orders provided clarity on the implications of discontinuance in representative proceedings and highlighted the importance of considering the interests of the group members in such cases.

Orders

Orders of the court

1. The proceeding be dismissed.

2. There be no order as to costs and all outstanding costs orders be vacated.

AND THE COURT NOTES THAT:

3. The parties have entered into a deed of release dated 12 December 2024.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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