Gill v Ethicon Sarl (No 4) - [2019] FCA 1814

FEDERAL COURT OF AUSTRALIA
Gill v Ethicon Sàrl (No 4) [2019] FCA 1814

File number: NSD 1590 of 2012

Judge: LEE J

Date of judgment: 1 November 2019

Catchwords: REPRESENTATIVE PROCEEDINGS – impact of delivery of substantive judgment upon new class members who have not had opportunity to opt-out – new class members added by recent but unnotified amendment excluded from class – whether Court has power to extend suspension of limitation periods that apply to individual claims of relevant group members – suspension unaffected by change to class definition but to avoid doubt order made by which current suspension of limitation period extended

Legislation:
Federal Court of Australia Act 1976 (Cth) ss 33J, 33K, 33ZB, 33ZE, 33ZF, 33V

Judiciary Act 1903 (Cth) s 79

Supreme Court Act 1986 (Vic) Pt 4A, s 33J

Federal Court of Australia Amendment Bill 1991 (Cth)

Cases cited:
Ethicon Sàrl v Gill [2018] FCAFC 137; (2018) 264 FCR 394

Gill v Ethicon Sàrl (No 2) [2019] FCA 177; (2019) 134 ACSR 649

Gill v Ethicon Sàrl (No 3) [2019] FCA 587; (2019) 369 ALR 175.

Lowe v Mack Trucks Australia Pty Ltd [2001] FCA 388

Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1

Turner v Tesa Mining (NSW) Pty Limited [2019] FCA 1644

Williams v FAI Home Security Pty Ltd (No 5) [2001] FCA 399

Grouped Proceedings in the Federal Court, Australian Law Reform Commission Report no 46

Date of hearing: 31 October 2019, 1 November 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: 34

Counsel for the Applicants: Mr D Graham SC, Mr A P L Naylor

Solicitor for the Applicants: Shine Lawyers

Counsel for the Respondents: Ms K C Morgan SC with Mr D T W Wong

Solicitor for the Respondents: Clayton Utz

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

JUDGE:

LEE J

DATE OF ORDER:

1 NOVEMBER 2019

THE COURT ORDERS THAT:
1.Orders 1 to 4 of the orders made on 3 May 2019 be vacated with the effect that the originating application and pleadings extant immediately prior to the making of those orders be the current originating application and pleadings in this proceeding.
2.Pursuant to s 33ZF of the Federal Court of Australia Act 1976 (Cth) (Act) the group members be as defined in the fifth further amended statement of claim, save that the group members added pursuant to the orders made on 3 May 2019 (post-4 July 2017 group members) remain as group members until 4 July 2020, but for the purpose only of the suspension of any limitation period pursuant to s 33ZE(1) of the Act and otherwise, the post-4 July 2017 group members are not bound…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCA 1814
Decision Date: 1 November 2019

CaseChat Overview and Summary

This case arose in the Federal Court of Australia, where the plaintiff, Gill, brought a proceeding against Ethicon Sarl under the representative proceedings provisions of the Federal Court of Australia Act 1976. The dispute centres on the impact of the delivery of a substantive judgment on new class members who had not had an opportunity to opt out of the proceeding, particularly those added by a recent but unnotified amendment. The court was tasked with deciding whether it had the power to extend the suspension of limitation periods that apply to individual claims of relevant group members, and whether the suspension was unaffected by changes to the class definition.

The court examined whether it could make orders that extended the suspension of limitation periods for new class members who were added by an amendment to the definition of the group members. It considered whether such orders would be consistent with the statutory framework and whether they would achieve the intended purpose of protecting the interests of the new class members. The court held that while the limitation period suspension remained unaffected by changes to the class definition, it was appropriate to make an order to avoid any doubt regarding the extension of the suspension for the purposes of the new class members.

The court's reasoning led to the conclusion that the orders made on 3 May 2019 should be vacated, with the originating application and pleadings extant immediately prior to those orders becoming the current originating application and pleadings in the proceeding. The group members were defined as per the fifth further amended statement of claim, except for those added pursuant to the orders made on 3 May 2019, who would remain as group members until 4 July 2020 for the purpose of the suspension of any limitation period, but not otherwise bound by any judgment or order or required to participate in the proceeding. The court further extended the time for any application for leave to appeal from these orders until 14 days after the delivery of the revised reasons for judgment.

The final orders vacated the previous orders and reinstated the earlier pleadings, redefined the group members to include those added by the recent amendment until 4 July 2020 for limitation period suspension purposes, and extended the time for leave to appeal.

Orders

Orders of the court

1. Orders 1 to 4 of the orders made on 3 May 2019 be vacated with the effect that the originating application and pleadings extant immediately prior to the making of those orders be the current originating application and pleadings in this proceeding.

2. Pursuant to s 33ZF of the Federal Court of Australia Act 1976 (Cth) (Act) the group members be as defined in the fifth further amended statement of claim, save that the group members added pursuant to the orders made on 3 May 2019 (post-4 July 2017 group members) remain as group members until 4 July 2020, but for the purpose only of the suspension of any limitation period pursuant to s 33ZE(1) of the Act and otherwise, the post-4 July 2017 group members are not bound by any judgment or order or otherwise entitled or required to participate as a group member in the proceeding.

3. The time for any application for leave to appeal from these orders is extended until 14 days after the delivery of the revised reasons for judgment.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	NSD 1590 of 2012
Judge:	LEE J
Date of judgment:	1 November 2019
Catchwords:	REPRESENTATIVE PROCEEDINGS – impact of delivery of substantive judgment upon new class members who have not had opportunity to opt-out – new class members added by recent but unnotified amendment excluded from class – whether Court has power to extend suspension of limitation periods that apply to individual claims of relevant group members – suspension unaffected by change to class definition but to avoid doubt order made by which current suspension of limitation period extended
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 33J, 33K, 33ZB, 33ZE, 33ZF, 33V Judiciary Act 1903 (Cth) s 79 Supreme Court Act 1986 (Vic) Pt 4A, s 33J Federal Court of Australia Amendment Bill 1991 (Cth)
Cases cited:	Ethicon Sàrl v Gill [2018] FCAFC 137; (2018) 264 FCR 394 Gill v Ethicon Sàrl (No 2) [2019] FCA 177; (2019) 134 ACSR 649 Gill v Ethicon Sàrl (No 3) [2019] FCA 587; (2019) 369 ALR 175. Lowe v Mack Trucks Australia Pty Ltd [2001] FCA 388 Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1 Turner v Tesa Mining (NSW) Pty Limited [2019] FCA 1644 Williams v FAI Home Security Pty Ltd (No 5) [2001] FCA 399 Grouped Proceedings in the Federal Court, Australian Law Reform Commission Report no 46
Date of hearing:	31 October 2019, 1 November 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:	34
Counsel for the Applicants:	Mr D Graham SC, Mr A P L Naylor
Solicitor for the Applicants:	Shine Lawyers
Counsel for the Respondents:	Ms K C Morgan SC with Mr D T W Wong
Solicitor for the Respondents:	Clayton Utz