Gill v Ethicon Sárl (No 9)

FEDERAL COURT OF AUSTRALIA

Gill v Ethicon Sárl (No 9) [2020] FCA 1838  

File number:

NSD 1590 of 2012

Judgment of:

KATZMANN J

Date of judgment:

18 December 2020

Catchwords:

 PRACTICE AND PROCEDURE — application for stay of lump sum costs order pending appeal

Cases cited:

Alexander v Cambridge Credit Corporation Ltd (receivers appointed) (1985) 2 NSWLR 685

Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1991) 30 FCR 548

Flight Centre Limited v Australian Competition & Consumer Commission [2014] FCA 658

Gill v Ethicon Sárl (No 8) [2020] FCA 771

Henderson v Amadio Pty Ltd (1996) 65 FCR 66

Fair Work Ombudsman v Priority Matters Ltd [2016] FCA 1415

Urban Alley Brewery Pty Ltd v La Sirène Pty Ltd (No 2) [2020] FCA 351

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Number of paragraphs:

12

Date of hearing:

18 December 2020

Counsel for the Applicants:

Mr AJL Bannon SC with Ms Z Hillman

Solicitor for the Applicants:

Shine Lawyers

Counsel for the Respondents:

Mr DTW 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 SÁRL

First Respondent

ETHICON, INC.

Second Respondent

JOHNSON & JOHNSON MEDICAL PTY LIMITED (ACN 000 160 400)

Third Respondent

ORDER MADE BY:	KATZMANN J
DATE OF ORDER:	18 DECEMBER 2020

THE COURT ORDERS THAT:

1.The respondents’ interlocutory application filed on 17 December 2020 be dismissed with costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from transcript)

KATZMANN J:

1. On 21 November 2019 I delivered judgment in this long-running matter and on 3 March 2020 I made orders in the applicants’ favour.  Order 5 of those orders was that the respondents pay the applicants’ costs.  On 25 May 2020 I ordered that the costs be fixed in a lump sum and directed the Registrar to determine the amount of the lump sum.  On 25 November 2020 the Registrar issued a determination, ordering that the costs be paid in a certain sum and that the amount be paid within 28 days.  An appeal from my original orders is pending and due to be heard in February.  On 17 December 2020 the respondents applied for a stay of the Registrar’s orders pending the disposition of the appeal.  In the alternative, the respondents sought an order that the costs be paid into and then held in escrow (to abide the outcome of the appeal) in an interest-bearing account under the joint management of the parties’ legal representatives.

2. The application was supported by an affidavit of Colin Loveday, a partner of Clayton Utz and the solicitor on the record for the respondents in the proceeding.  Mr Loveday’s affidavit recited the history of the costs questions, the fact of the appeal and referred to some of the remarks by the Chief Justice at a…