Gill v Ethicon Sàrl (No 11)

Link copied
Case Copied 14 min read

FEDERAL COURT OF AUSTRALIA

Gill v Ethicon Sàrl (No 11) [2023] FCA 229

File numbers: NSD 1590 of 2012
NSD 310 of 2021
Judgment of: LEE J
Date of judgment: 16 March 2023
Catchwords: REPRESENTATIVE PROCEEDINGS – application for settlement approval pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (FCA Act) – novel tender process conducted for appointment of scheme administrator – consideration of Court’s supervisory and protective role in representative proceedings – need to administer settlement schemes in accordance with overarching purpose – appointment of referee to conduct tender process – dismissal of applications for intervention by tenderers for settlement distribution scheme
Legislation:

Federal Court of Australia Act 1976 (Cth) Pt IVA, Pt VB, ss 37M(1), 37P(2), 33V, 33V(1)

Federal Court Rules 2011 (Cth) Div 28.6
Cases cited:

Blairgowrie Trading Ltd v Allco Finance Group Ltd (recs and mgrs apptd) (in liq) (No 3) [2017] FCA 330; (2017) 343 ALR 476

Dorajay Pty Ltd v Aristocrat Leisure Limited [2009] FCA 19

Downie v Spiral Foods Pty Ltd (Ruling No 2) [2016] VSC 675

Gill v Ethicon Sàrl (No 10) [2023] FCA 228

HFPS Pty Limited (Trustee) v Tamaya Resources Limited (in Liq) (No 3) [2017] FCA 650

Matthews v AusNet Electricity Services Pty Ltd (Ruling No 40) [2015] VSC 131

Perera v GetSwift Ltd [2018] FCA 732; (2018) 263 FCR 1

Petersen Superannuation Fund Pty Ltd v Bank of Queensland Limited (No 3) [2018] FCA 1842; (2018) 132 ACSR 258

Rowe v Ausnet Electricity Services Pty Ltd (No 9) [2016] VSC 731
Australian Law Reform Commission, Integrity, Fairness and Efficiency—An Inquiry into Class Action Proceedings and Third-Party Litigation Funders (Report 134, December 2018)
Commonwealth, Parliamentary Debates, House of Representatives, 14 November 1991
Grave D, Adams K and Betts J, Class Actions in Australia (3rd ed, LawBook Co, 2022)
Division: General Division
Registry: New South Wales
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Number of paragraphs: 29
Date of hearing: 5 December 2022, 16 February 2023
Counsel for the applicants: Mr A Bannon SC with Ms Z Hillman and Ms L Rich
Solicitor for the applicants: Shine Lawyers
Counsel for the respondents: Mr RA Dick SC with Mr DTW Wong
Solicitor for the respondents: Clayton Utz
Contradictors: Mr M Darke SC with Ms R Francois
Solicitor for the contradictors: William Roberts Lawyers

 

ORDERS

NSD 1590 of 2012
BETWEEN:

KATHRYN GILL

First Applicant

DIANE DAWSON

Second Applicant

ANN SANDERS

Third Applicant
AND:

ETHICON SÀRL

First Respondent

ETHICON, INC.

Second Respondent

JOHNSON & JOHNSON MEDICAL PTY LIMITED (ACN 000 160 403)

Third Respondent
NSD 310 of 2021
BETWEEN:

LISA TALBOT

Applicant
AND:

ETHICON SÀRL

First Respondent

ETHICON, INC.

Second Respondent

JOHNSON & JOHNSON MEDICAL PTY LIMITED (ACN 000 160 403)

Third Respondent

ORDER MADE BY:

LEE J

DATE OF ORDER:

16 MARCH 2023

THE COURT ORDERS THAT:

1.All applications for intervention by the existing tenderers in relation to administering the just distribution of payments from the…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Gill v Ethicon Sàrl (No 11) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2023] FCA 229
Decision Date

CaseChat Overview and Summary

Gill v Ethicon Sàrl (No 11) concerned an application for the approval of a settlement in a representative proceeding, under section 33V of the Federal Court of Australia Act 1976 (Cth). The dispute involved the appointment of a scheme administrator for the distribution of payments from a settlement fund. The Court was required to consider the process for appointing a referee to conduct a tender process for the scheme administrator and the need to ensure the settlement was administered in accordance with its overarching purpose.

The legal issues before the Court included the supervisory and protective role of the Court in representative proceedings, particularly in relation to the administration of settlement schemes. The Court had to balance the interests of the group members and the contradictors in the settlement, ensuring that the headline settlement was fair and reasonable and that the focus on just distributions was maintained until the end of the process. The Court also had to consider the independence of the referee appointed to conduct the tender process for the scheme administrator.

The Court dismissed the applications for intervention by the existing tenderers in relation to administering the just distribution of payments from the settlement fund. It determined that the referee should be independent of the contradictors and approach the task with an open mind. The Court emphasised the importance of ensuring that the settlement was administered in accordance with its overarching purpose and that a focus on just distributions was maintained. The Court appointed a referee to conduct an inquiry and report into the appointment of a scheme administrator.

The orders made by the Court included the dismissal of all applications for intervention by the existing tenderers in relation to administering the just distribution of payments from the settlement fund. The Court also listed the proceedings for case management to make orders as to the determination of just distributions from the approved settlement fund, including as to unpaid costs and disbursements and further, as to the appointment of a referee to conduct an inquiry and report into the appointment of a scheme administrator. The orders reflect the Court's duty to ensure that the settlement is fair and reasonable and that just distributions are maintained until the end of the process.

Orders

Orders of the court

1. All applications for intervention by the existing tenderers in relation to administering the just distribution of payments from the settlement fund approved in these proceedings be dismissed.

2. The proceedings be listed for case management to make orders as to the determination of just distributions from the approved settlement fund, including as to unpaid costs and disbursements and further, as to the appointment of a referee to conduct an inquiry and report into the appointment of a scheme administrator on a date to be fixed.

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

The contradictors, as might be expected, have been critical of some aspects of Shine’s work in this matter. As noted above, it makes sense that the referee should be independent of the contradictors and approach the task tabula rasa.D CONCLUSION AND ORDERS The orders made today reflect the onerous duty on the Court to ensure not only that the headline settlement is fair and reasonable as between group members, but also that a focus on what orders as are just with respect to deductions is maintained until the end of the settlement process.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.