Gill v Ethicon Sárl (No 8)

In Gill v Ethicon Sàrl (No 8), the respondents, Ethicon Sàrl and Johnson & Johnson Medical Pty Limited, sought to vary an injunction and obtain a stay of the injunction. The injunction, which was imposed by the court on 6 March 2020, required the respondents to include specific information in patient information leaflets and promotional material for certain medical devices. The injunction was part of a broader representative proceeding where the court found the respondents had contravened consumer protection laws by supplying defective goods and making misleading statements about those goods. The medical devices in question were implantable polypropylene mesh devices used to treat pelvic organ prolapse and stress urinary incontinence.

The legal issues before the court were whether to vary the injunction to extend the deadline for compliance and to modify the required information in the patient leaflets, and whether to stay the injunction pending the outcome of an appeal against the principal judgment. The respondents argued that the injunction was overly broad, potentially harmful to patients, and that the information required to be included was misleading. They sought a variation to provide more time for compliance and to refine the information provided to patients. The applicants opposed the application, arguing that the injunction was necessary to protect consumers and that the proposed changes would undermine its effectiveness.

The court considered the urgency of the need to protect consumers, the potential harm of the injunction, and the respondents' ability to comply with the injunction. The court found that while the injunction was necessary to protect consumers, there was merit in extending the deadline to allow the respondents more time to implement the changes. The court also found that the proposed changes to the information were reasonable and did not undermine the effectiveness of the injunction. The court dismissed the application for a stay of the injunction, finding that the appeal did not raise substantial questions of law warranting a stay.

The court varied the injunction to extend the deadline for compliance and to modify the information required in the patient information leaflets and promotional material. The injunction was amended to require the inclusion of additional information about the risks and potential complications associated with the medical devices. The court dismissed the application for a stay of the injunction with costs.