FEDERAL COURT OF AUSTRALIA
Gill v Ethicon Sàrl (No 11) [2023] FCA 229
File numbers: NSD 1590 of 2012
NSD 310 of 2021Judgment 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…
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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2023] FCA 229
- Decision Date
CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.