Fenton v Monsanto Australia Pty Ltd - [2024] FCA 1525

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

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: [2024] FCA 1525
Decision Date: 24 December 2024

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

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.

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

ORDER MADE BY:	LEE J
DATE OF ORDER:	24 DECEMBER 2024