Gill v Ethicon Sàrl (No 11)

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.