FEDERAL COURT OF AUSTRALIA
Gill v Ethicon Sàrl (No 13) [2023] FCA 1131
File numbers: NSD 1590 of 2012
NSD 310 of 2021
NSD 244 of 2021Judgment of: LEE J Date of judgment: 15 September 2023 Date of publication of reasons: 21 September 2023 Catchwords: REPRESENTATIVE PROCEEDINGS – three open class representative proceedings brought against manufacturers and suppliers of pelvic “mesh” implants – where proposed settlements approved under s 33V(1) of the Federal Court of Australia Act 1976 (Cth) pending orders for just deductions under s 33V(2) – whether referee’s report as to administration of settlement scheme should be adopted
PRACTICE AND PROCEDURE – achieving the overarching purpose in case management of class actions –utility of reference process in large scale litigation – tender process for administration of settlement scheme
Legislation: Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 33V(1), 33V(2) Cases cited: Fowkes v Boston Scientific Corporation [2023] FCA 230
Gill v Ethicon Sàrl (No 10) [2023] FCA 228
Gill v Ethicon Sàrl (No 11) [2023] FCA 229
VoR Environmental Australia Proprietary Limited v Taset Inc. (No 2) [2019] FCA 1094; (2019) 385 ALR 312
1 Australian Law Reform Commission, Integrity, Fairness and Efficiency—An Inquiry into Class Action Proceedings and Third-Party Litigation Funders (Report 134, December 2018) Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 14 Date of hearing: 15 September 2023 Counsel for the applicants: Ms Z Hillman Solicitor for the applicants: Shine 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:
21 SEPTEMBER 2023
THE COURT ORDERS THAT:
Adoption of the Referee’s Report
1.Pursuant to s 54A(3) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the Report of the Honourable J L B Allsop AC (referee), dated 8 September 2023, be adopted in full (Report).
Payment of the Referee’s and Counsel Assisting’s costs and disbursements
2.Pursuant to s 33V(2) of the FCA Act, the costs and disbursements of the referee and counsel assisting, Ms Aditi Rao, be deducted from the settlement fund.
Settlement Distribution Scheme
3.Pursuant to s 33V(2) of the FCA Act, the amended settlement distribution scheme put forward by BDO, JGA Saddler and Slater and Gordon, a copy of which appears as Exhibit 3 to the Report (Settlement Distribution Scheme), be approved.
4.BDO, JGA Saddler and Slater and Gordon (Administrators) be appointed, jointly and…
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- Case
- [2023] FCA 1131
- Decision Date
CaseChat Overview and Summary
The legal issues centred around the court's role in overseeing the settlement process and ensuring it aligns with the overarching purpose of class actions, which is to achieve justice for the class members efficiently and effectively. The court needed to decide if the referee’s report accurately reflected the administration of the settlement scheme and whether the proposed settlement distribution scheme was fair and appropriate. Furthermore, the court had to consider the tender process for the administration of the settlement scheme and the utility of the reference process in managing large-scale litigation.
The court adopted the referee's report in its entirety, acknowledging the referee's thorough assessment of the settlement scheme's administration. The court approved the amended settlement distribution scheme and appointed the administrators to oversee its implementation. The court also ordered the payment of the referee's and counsel's costs from the settlement fund and granted Shine Lawyers the liberty to apply for a disbursement from the fund for data transfer costs. Additionally, the court extended the time for the Costs Referee to provide his report and required Shine Lawyers to file relevant documents and submissions regarding any additional costs incurred after a specified date.
Orders
Orders of the court
Adoption of the Referee’s Report
1. Pursuant to s 54A(3) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the Report of the Honourable J L B Allsop AC (referee), dated 8 September 2023, be adopted in whole (Report).
Payment of the Scheme Referee’s and Counsel Assisting’s costs and disbursements
2. Pursuant to s 33V(2) of the FCA Act, the costs and disbursements of the referee and counsel assisting, Ms Aditi Rao, be deducted from the settlement fund.
Settlement Distribution Scheme
3. Pursuant to s 33V(2) of the FCA Act, the amended settlement distribution scheme put forward by BDO, JGA Saddler and Slater and Gordon, a copy of which appears as Exhibit 3 to the Report (Settlement Distribution Scheme), be approved.
4. BDO, JGA Saddler and Slater and Gordon (Administrators) be appointed, jointly and severally, to administer the Settlement Distribution Scheme in accordance with its terms.
Data Transfer to Administrators
5. Within 14 days of the date of this Order, Shine Lawyers prepare a handover plan for the orderly handover of all hardcopy and electronic files required for the administration of the Settlement Distribution Scheme. The handover plan is to be provided to the Administrators.
6. Shine Lawyers deliver to the Administrators all documents required for the administration of the Settlement Distribution Scheme within a period of three months from the date of this order. If Shine Lawyers is unable to effect a transfer of data within that time period, they immediately notify the Administrators and the Court and provide an updated time period in which the transfer can be completed.
7. Liberty be granted to Shine Lawyers to apply for a disbursement from the settlement fund in respect of the costs of and incidental to the collection, organisation, and transfer of data by Shine Lawyers to the Administrators.
Costs
8. The time by which Mr Roland Matters (Costs Referee) is to provide his report to the Court in accordance with the Orders dated 4 July 2023 (Costs Report) be extended to 2 October 2023.
9. Within 14 days of the Costs Referee providing the Costs Report to the Court, Shine Lawyers file and serve:
(a) an affidavit in relation to any costs and disbursements incurred after 27 May 2023 in respect of which an order pursuant to s 33V(2) of the FCA Act is sought; and
(b) written submissions, of not more than two pages, in support of approval of a disbursement from the settlement fund of any such costs.
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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