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Rowe v Grünenthal

Rowe v Grünenthal

Case [2011] VSC 657 19 December 2011

Forum non conveniens

Jurisdiction

Service of Process

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. S CI 2011 3527

LYNETTE SUZANNE ROWE

Plaintiff

GRÜNENTHAL GmbH

THE DISTILLERS COMPANY (BIOCHEMICALS) LIMITED (00518031)

DIAGEO SCOTLAND LIMITED (SC 000750)

First Defendant

Second Defendant

Third Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 December 2011
DATE OF JUDGMENT:	19 December 2011
CASE MAY BE CITED AS:	Rowe v Grünenthal & Ors
MEDIUM NEUTRAL CITATION:	[2011] VSC 657

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PRACTICE AND PROCEDURE – Group proceeding – Service out of Australia – Indorsement for service out of Australia – Place of commission of tort – Place where damage suffered – Application to set aside service – Application to stay proceeding – Forum non conveniens – Appropriate forum – Supreme Court (General Civil Procedure) Rules 2005, rules 2.04, 7.01, 7.02, 7.05, 8.08 and 8.09.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D.E. Curtain QC with Mr J.R.C. Gordon and Mr A.A. Higgins	Gordon Legal
For the First Defendant	Mr B.F. Quinn	Clayton Utz
For the Second and Third Defendants	Mr T.J.P. Walker	Freehills

HIS HONOUR:

Introduction

Lynette Suzanne Rowe, the plaintiff, was born in Victoria in March 1962 without arms or legs. The plaintiff alleges that her congenital absence of both arms and both legs, together with other injuries, were caused by her mother’s consumption of thalidomide drugs prior to the plaintiff’s birth. Pursuant to Part 4A of the Supreme Court Act 1986, the plaintiff commenced this proceeding (a group proceeding, or sometimes called a class action) on behalf of herself and others who were born in Australia between 1 January 1958 and 31 December 1970 who have suffered since birth from a congenital malformation and whose mothers, while pregnant with them, consumed and/or were administered thalidomide.[1]
[1]As currently pleaded, there are other conditions that must be satisfied to be a group member. However, at this stage it is not necessary to say anything further in relation to these other conditions.

Grünenthal GmbH, the first defendant, is a company registered in the Federal Republic of Germany. The Distillers Company (Biochemicals) Limited, the second defendant, is a company incorporated in the United Kingdom. Diageo Scotland Limited, the third defendant, asserted in the plaintiff’s statement of claim to have been previously known as Distillers Company Limited, is a company incorporated in Scotland.

By her statement of claim, the plaintiff alleges:

(a)between about 1950 and 1955, Grünenthal developed the drug, thalidomide, and patented it in a number of countries, including Australia;
(b)between about May 1957 and April 1960, Grünenthal and the second and third defendants (referred to in the statement of claim as “the Distillers defendants”) entered into a series of agreements (“the licence agreements”) whereby Grünenthal licensed the Distillers defendants and required the Distillers defendants to bring thalidomide drugs to market in a number of countries, including Australia;
(c)the manufacture, supply, distribution, marketing and promotion of thalidomide drugs in Australia pursuant to the licence agreements was at all relevant times a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rowe v Grünenthal

Details

AGLC: Rowe v Grünenthal [2011] VSC 657
Case: [2011] VSC 657
Decision Date: 19 December 2011

CaseChat Overview and Summary

The plaintiffs, residents of Australia, brought a claim against Grünenthal GmbH, a German pharmaceutical company, in the Supreme Court of New South Wales. They sought damages for harm they allegedly suffered due to the use of the drug Thalidomide, which was manufactured by Grünenthal. The dispute centred on the jurisdiction of the New South Wales court to hear the case, specifically regarding the service of the originating application out of Australia and the application of the appropriate forum doctrine. The plaintiffs argued that the New South Wales court was the most appropriate forum to hear their claims, while Grünenthal contended that the German courts were the appropriate forum and sought to stay the proceedings.

The primary legal issues before the court were whether the New South Wales court had jurisdiction to hear the case, considering the service of the originating application out of Australia, and whether the appropriate forum doctrine applied to the case. The court had to determine whether the New South Wales court was an appropriate forum for the hearing of the claims, taking into account the place where the alleged tort was committed, the place where the damage was suffered, and the applicable rules of procedure. The court also had to assess whether the German courts were a more appropriate forum for the hearing of the claims.

The court held that the New South Wales court had jurisdiction to hear the case, and the service of the originating application out of Australia was valid. The court found that the New South Wales court was an appropriate forum for the hearing of the claims, and the appropriate forum doctrine did not apply to the case. The court noted that the plaintiffs had suffered damage in Australia and the cause of action arose in Australia, and therefore, the New South Wales court was the appropriate forum to hear the case. The court rejected Grünenthal's argument that the German courts were the appropriate forum and dismissed the application to stay the proceedings.

The court dismissed Grünenthal's application to set aside service and to stay the proceedings. The court held that the New South Wales court had jurisdiction to hear the case, and the service of the originating application out of Australia was valid. The court found that the New South Wales court was the appropriate forum to hear the claims, and the appropriate forum doctrine did not apply to the case. The court held that the New South Wales court was the most suitable forum to hear the case, considering the place where the damage was suffered and the applicable rules of procedure. The court rejected Grünenthal's argument that the German courts were the appropriate forum and dismissed the application to stay the proceedings.

Orders