Philipsen v American Medical Systems LLC

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FEDERAL COURT OF AUSTRALIA

Philipsen v American Medical Systems LLC [2018] FCA 246

File number: NSD 35 of 2018
Judge: KATZMANN J
Date of judgment: 7 March 2018
Catchwords: PRACTICE AND PROCEDURE — service of documents in a foreign country — application for leave under r 10.43 of the Federal Court Rules 2011 (Cth) to serve originating application and statement of claim outside jurisdiction — whether prima facie case for relief
Legislation:

Evidence Act 1995 (Cth), s 75

Federal Court of Australia Act 1976 (Cth), s 19

Judiciary Act 1903 (Cth), s 39B(1A)(c)

Trade Practices Act 1974 (Cth), ss 4, 74B, 74D, 75AC, 75AD, 86

Federal Court Rules 2011 (Cth), rr 1.41, 10.41, 10.42, 10.43, 10.44, 13.01

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Opened for signature 15 November 1965. 658 UNTS 163 (entered into force 10 February 1969), art 8 and 10

Cases cited:

Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218

Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317

Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 853; (2004) ATPR ¶42-014

Fencott v Muller (1983) 152 CLR 570

Ho v Akai Pty Limited (in liquidation) (2006) 247 FCR 205

Kadam v MiiResorts Group 1 Pty Ltd (No 2) [2016] FCA 1343

VoR Environmental Australia Pty Limited v Taset Inc. [2017] FCA 541

WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472

Date of hearing: 5 March 2018
Registry: New South Wales
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Category: Catchwords
Number of paragraphs: 44
Counsel for the Applicant: Mr D E Graham SC
Solicitor for the Applicant: Shine Lawyers

ORDERS

NSD 35 of 2018
BETWEEN:

JODIE PHILIPSEN

Applicant
AND:

AMERICAN MEDICAL SYSTEMS LLC

Respondent

JUDGE:

KATZMANN J

DATE OF ORDER:

7 MARCH 2018

THE COURT ORDERS THAT:

1.The applicant have leave, pursuant to rr 10.43(2) and 1.41 of the Federal Court Rules 2011 (Cth), to serve the originating application and the statement of claim in this matter on the respondent in the United States of America in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965 (Hague Convention).

2.Service be effected either through diplomatic or consular agents, in accordance with article 8 of the Hague Convention, or by post in accordance with article 10.

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


REASONS FOR JUDGMENT

  1. This is a representative proceeding brought under Pt IVA of the Federal Court of Australia Act 1976 (Cth). The applicant, Jodie Philipsen, brings the proceeding in her own right and on behalf of others, referred to as “group members” who have allegedly been injured as a result of being surgically implanted with one or more of 11 medical devices. Six of the 11 devices were designed to…

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Details
Case
[2018] FCA 246
Decision Date

CaseChat Overview and Summary

The matter in Philipsen v American Medical Systems LLC was heard in the Federal Court. The applicant, Mrs Philipsen, sought leave to serve the originating application and statement of claim on the respondent, AMS, in the United States, outside the jurisdiction of the Court. The application was made under rule 10.43 of the Federal Court Rules 2011 (Cth). Mrs Philipsen alleged that she suffered complications following implantation of AMS mesh devices and sought various forms of relief under the Federal Court of Australia Act 1976 (Cth).

The legal issues before the court included whether there was a prima facie case for relief against AMS, and if the Hague Convention permitted service of the documents in the United States. The court found that there was sufficient evidence to support a prima facie case against AMS for the claims made by Mrs Philipsen. Additionally, the court determined that the Hague Convention allowed for service of the documents in the United States and that the court had the necessary jurisdiction and power to make the order sought.

The court granted leave for Mrs Philipsen to serve the originating application and statement of claim on AMS in the United States in accordance with the Hague Convention. Service could be effected either through diplomatic or consular agents or by post. The applicant was directed to approach the Registrar in accordance with Division 10.6 of the Federal Court Rules 2011 (Cth) to facilitate the service of the documents. The orders also specified that the service must be in compliance with the Hague Convention and provided for the entry of the orders in accordance with Rule 39.32 of the Federal Court Rules 2011 (Cth).

Orders

Orders of the court

1. The applicant have leave, pursuant to rr 10.43(2) and 1.41 of the Federal Court Rules 2011 (Cth), to serve the originating application and the statement of claim in this matter on the respondent in the United States of America in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965 (Hague Convention).

2. Service be effected either through diplomatic or consular agents, in accordance with article 8 of the Hague Convention, or by post in accordance with article 10.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Hearsay evidence is given in Ms Cook’s first affidavit concerning Mrs Philipsen’s implant surgery and its sequelae. The evidence is brief. Nevertheless, for present purposes it is sufficient proof that Mrs Philipsen was implanted with AMS mesh devices and suffered a number of complications thereafter. The inference is open from the FDA notification and the medical articles that there is a causal connection between the implantation of the mesh, the later operations, and the chronic pain she has allegedly experienced.Conclusion On the basis of the material in Ms Cook’s first two affidavits, I am satisfied that there is a prima facie case against AMS in relation to the s 75AD claim for at least some of the relief claimed in the originating application. To the extent that the claims under ss 74B and 74D rely on the same evidence, I also consider that there is a prima facie case against AMS on those claims. Certainly, there is a serious issue to be tried: compare Kadam at [55]. It is unnecessary to go any further. As I am also satisfied that the Hague Convention permits service of the relevant documents in the United States, that the Court has jurisdiction to hear the action, and that the proceeding is of the relevant kind, the Court has the power to make the order sought. There is no reason why I should not exercise it.The form of order The order sought in the interlocutory application is merely that leave be granted to serve the originating application and statement of claim on AMS. It is usual, however, in a matter of this kind for the Court to identify the method and place of service. I therefore propose making an order granting Mrs Philipsen leave to serve the documents on AMS in the United States under the Hague Convention. She must then approach the Registrar in accordance with Division 10.6 of the Rules to enable service to be effected.

Ratio Decidendi

Legal Principle Established

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