FEDERAL COURT OF AUSTRALIA
Gill v Ethicon Sàrl (No 3) [2019] FCA 587
File number: NSD 1590 of 2012 Judge: LEE J Date of judgment: 10 April 2019 Catchwords: REPRESENTATIVE PROCEEDINGS – application to expand the class in a representative proceeding – importance of Merck orders in Pt IVA proceedings – principles relating to Merck orders – principles relating to group definition – argument as to futility – whether new group members’ claims would be doomed to fail – application to expand the class granted in circumstances of registration orders made in advance of a proposed mediation Legislation: Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 33X, 33ZB, 33ZF
Federal Rules of Civil Procedure (US) r 23
Cases cited: Ethicon Sàrl v Gill [2018] FCAFC 137
Femcare Ltd v Bright [2000] FCA 512; (2000) 100 FCR 331
Gill v Ethicon Sàrl (No 2) [2019] FCA 177
Mobil Oil Australia Pty Limited v Victoria [2002] HCA 27; (2002) 211 CLR 1
Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd [2010] FCA 180; (2010) 184 FCR 1
Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd (No 5) [2010] FCA 605; (2010) 87 IPR 234
Schanka v Employment National (Administration) Pty Limited (No 2) [2001] FCA 1623; (2001) 114 FCR 379
Timbercorp Finance Pty Ltd (in liquidation) v Collins [2016] HCA 44; (2016) 259 CLR 212
Date of hearing: 10 April 2019 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Category: Catchwords Number of paragraphs: 36 Counsel for the Applicants: Mr D Graham SC Counsel for the Respondents: Mr S G Finch SC with Mr D Wong ORDERS
NSD 1590 of 2012 BETWEEN: KATHRYN GILL
First Applicant
DIANE DAWSON
Second Applicant
ANN SANDERS
Third Applicant
AND: ETHICON SÁRL
First Respondent
ETHICON INC
Second Respondent
JOHNSON & JOHNSON MEDICAL PTY LIMITED ACN 000 160 403
Third Respondent
JUDGE:
LEE J
DATE OF ORDER:
11 APRIL 2019
THE COURT ORDERS THAT:
1.The parties provide to the Associate to Lee J a minute of order reflecting these reasons.
2.The time for bringing any application for leave to appeal from orders made reflecting these reasons be extended to a date 7 days after the delivery of revised reasons.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Revised from the TranscriptLEE J:
This matter has once again come before me, this time by way of an application for leave to expand the current group definition.
The application was listed before me at 9.30am this morning, having previously been listed and adjourned part-heard on 1 April 2019. The application seeks an order that the group definition be amended by replacing the existing cut-off date (being the current date by which claimants need to have met the criteria for group membership) with what is identified as being a “date to be fixed”. This would have the…
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- Case
- [2019] FCA 587
- Decision Date
CaseChat Overview and Summary
The court considered the importance of Merck orders, which are orders that require parties to provide information about the proceedings to potential plaintiffs. The court held that the importance of Merck orders in Pt IVA proceedings is that they allow potential plaintiffs to make an informed decision about whether to join the proceeding. The court also considered the principles relating to Merck orders, which include that the orders should be made as early as possible, and that they should be made in a way that does not prejudice the rights of any party. The court held that the principles relating to Merck orders were relevant to the decision whether to expand the class of plaintiffs. The court also considered the principles relating to group definition, which include that the group should be defined in a way that is fair and just to all members of the group. The court held that the principles relating to group definition were also relevant to the decision whether to expand the class of plaintiffs.
The court held that the application to expand the class should be granted. The court found that the new group members' claims were not doomed to fail and that the registration orders made in advance of a proposed mediation would assist in identifying potential plaintiffs. The court held that the importance of Merck orders, the principles relating to Merck orders, and the principles relating to group definition all supported the grant of the application. The court also held that the application to expand the class should be granted in circumstances of registration orders made in advance of a proposed mediation.
The court made orders that the parties provide to the Associate to Lee J a minute of order reflecting these reasons. The court also extended the time for bringing any application for leave to appeal from orders made reflecting these reasons to a date 7 days after the delivery of revised reasons.
Orders
Orders of the court
1. The parties provide to the Associate to Lee J a minute of order reflecting these reasons.
2. The time for bringing any application for leave to appeal from orders made reflecting these reasons be extended to a date 7 days after the delivery of revised reasons.
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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