Hardy v Reckitt Benckiser (Australia) Pty Limited

FEDERAL COURT OF AUSTRALIA

Hardy v Reckitt Benckiser (Australia) Pty Limited [2017] FCA 341

File number:

NSD 273 of 2016

Judge:

NICHOLAS J

Date of judgment:

31 March 2017

Catchwords:

PRACTICE AND PROCEDURE – representative proceeding – where initial trial is yet to take place – where class closure order proposed by respondent is opposed by applicants – whether class closure order should be made – application for class closure order refused

Legislation:

Federal Court of Australia Act 1976 s 33ZF(1), Pt IVA

Cases cited:

Jones v Treasury Wine Estates Limited (No 2) [2017] FCA 296

Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1

P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 2) [2010] FCA 176

Date of hearing:

30 March 2017

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Category:

Catchwords

Number of paragraphs:

20

Counsel for the Applicants:

Dr P Cashman appears with Mr R White

Solicitor for the Applicants:

Bannister Law

Counsel for the Respondent:

Mr N Hutley SC appears with Mr D Birch

Solicitor for the Respondent:

Allen & Overy

ORDERS

NSD 273 of 2016

BETWEEN:

KEITH GEORGE HARDY

First Applicant

YASMINKA JANG

Second Applicant

AND:

RECKITT BENCKISER (AUSTRALIA) PTY LIMITED

Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	31 MARCH 2017

THE COURT ORDERS THAT:

1.The respondent’s interlocutory application filed 10 March 2017 be dismissed with costs.

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

REASONS FOR JUDGMENT

NICHOLAS J:

1. Before me is an interlocutory application filed by the respondent in a representative proceeding commenced under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (“the Act’) seeking what is colloquially known as a “class closure” order under s 33ZF(1) of the Act. A similar application was refused by Jagot J in this proceeding on 25 November 2016. The initial trial is fixed to commence on 1 August 2017 with an estimate of two to three days.

2. The respondent’s proposed order effectively requires group members to positively indicate whether they wish to advance a claim in the proceeding or participate in a potential settlement.  Under the terms of the respondent’s proposed order they will, in the absence of any such positive indication, be excluded from any settlement and precluded from seeking any relief in the proceeding without the leave of the Court.

3. The respondent says that it seeks the class closure order to facilitate a productive mediation prior to the determination of the applicants’ claim and the resolution of the common questions following the initial trial.  The applicants oppose the making of any form of class closure order prior to the initial trial. 

4. The group members are consumers as defined by s 3 of the Australian Consumer Law (“ACL”) who purchased any of the following products in the Nurofen Specific Pain Range (“NSPR”) between 1 January 2011 and 31 December 2015:

   ·Nurofen Migraine Pain ibuprofen lysine 342 mg tablet blister…