Gill v Ethicon Sarl (No 4)

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.