Schofield v TFS Manufacturing

Case [2020] FCA 1526

FEDERAL COURT OF AUSTRALIA

Schofield v TFS Manufacturing [2020] FCA 1526  

File numbers: NSD 181 of 2020
Judgment of: LEE J
Date of judgment: 8 October 2020
Catchwords: REPRESENTATIVE PROCEEDINGS – security for costs in unfunded open class representative proceeding claiming personal injury and product liability concerning pelvic mesh implants – where security sought by one respondent against one applicant – where respondent disclosed that further tranches of security would be sought – consideration of relevant principles – principled approach to such applications and central importance of context including nature of the litigation – whether order of security would stultify proceeding – whether decision to bring claims in representative proceeding relevant in assessing whether security should be ordered – application dismissed   
Legislation:

Evidence Act1995 (Cth) s 140

Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 33N, 33V, 56

Federal Court Rules 2011 (Cth) r 19.01

Trade Practices Act 1974 (Cth)

Cases cited:

Abbott v Zoetis Australia Pty Limited (No 2) [2019] FCA 462; (2019) 369 ALR 512

Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1

Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153; (2003) 130 FCR 317

Capic v Ford Motor Company (No 2) [2016] FCA 1178

Kelly v Willmott Forests Ltd (In Liq) [2012] FCA 1446

Madgwick v Kelly [2013] FCAFC 61; (2013) 212 FCR 1

Turner v Tesa Mining (NSW) Pty Limited [2019] FCA 1644; (2019) 290 IR 388

West v Rane [2019] FCA 2195

West v Rane (No 2) [2020] FCA 616

Zoetis Australia Pty Ltd v Abbott [2019] FCAFC 153

Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 30
Date of hearing: 8 October 2020
Counsel for the Applicants: Dr D Graham SC with Mr M Robinson
Solicitor for the Applicants: AJB Stevens Lawyers
Counsel for the First Respondent: Mr H Chiu
Solicitor for the First Respondent: Wotton + Kearney
Counsel for the Third Respondent: Ms K Morgan SC with Mr D Wong
Solicitor for the Third Respondent: DLA Piper
Counsel for the Prospective Fifth Respondent: Mr P Solomon QC with Mr M Hutchings
Solicitor for the Prospective Fifth Respondent: Meridian Lawyers

ORDERS

NSD 181 of 2020
BETWEEN:

LINDSAY SCHOFIELD

First Applicant

MELISSA WEEDON

Second Applicant
AND:

TFS MANUFACTURING

First Respondent

IVS PTY LTD

Second Respondent

COVIDIEN PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

LEE J

DATE OF ORDER:

8 OCTOBER 2020

THE COURT ORDERS THAT:

1.The application 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)

LEE J:

A        INTRODUCTION AND BACKGROUND

  1. This is an application for security for costs in an unfunded “open class” representative proceeding commenced pursuant to Pt IVA of the Federal Court of Australia Act 1976 (Cth) (Act). 

  2. The current proceeding arises out of circumstances similar to those that I considered in West v Rane

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Details
AGLC
Schofield v TFS Manufacturing [2020] FCA 1526
Case
[2020] FCA 1526
Decision Date

CaseChat Overview and Summary

In Schofield v TFS Manufacturing, the plaintiff, who represented a class of individuals, sought to proceed with a representative action against the defendant, a manufacturer, concerning pelvic mesh implants. The claim alleged personal injury and product liability, and the proceeding was unfunded. The defendant, TFS Manufacturing, applied for security for costs against one of the applicants. The nature of the dispute was the appropriateness of requiring security for costs in an unfunded class action on a speculative basis.

The court was required to determine whether an order for security for costs would stultify the proceeding and if the decision to bring the claims in a representative proceeding should influence the decision on security. The court considered the principles and context of such applications, including the nature of the litigation and the speculative basis of the claims.

The court concluded that the application for security for costs should not be made in the unfunded class action. The court found that if the claims were pursued individually by group members, it would be unreasonable to require those claimants to put up security. The decision to bring the claims in a representative proceeding was not relevant in assessing whether security should be ordered. Therefore, the application was dismissed.

The final orders of the court were that the application be dismissed with costs. The court noted that entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application be dismissed with costs.

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

It follows that, notwithstanding the onus of proving stultification has not been made out (as I understand the concept of stultification), and the further matters raised by Covidien during the course of oral submissions, the application for security for costs ought not be made in this unfunded class action brought on a speculative basis for personal injury. This is an unsurprising result because if these claims were pursued by group members on an individual basis, it would be a risible suggestion to assert that those claimants would have been required to put up security. D CONCLUSION Accordingly, the application will be dismissed. There is no reason why costs should not follow the event.

Ratio Decidendi

Legal Principle Established

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