Stanford v DePuy International Ltd (No 2)
[2014] FCA 505
FEDERAL COURT OF AUSTRALIA
Stanford v DePuy International Ltd (No 2) [2014] FCA 505
Citation: Stanford v DePuy International Ltd (No 2) [2014] FCA 505 Parties: TAMMY MAREE STANFORD and JAMIE DUNSMORE v DEPUY INTERNATIONAL LTD and JOHNSON & JOHNSON MEDICAL PTY LIMITED File number: NSD 213 of 2011 Judge: ROBERTSON J Date of judgment: 15 May 2014 Date of hearing: 14 May 2014 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 20 Counsel for the Applicants: Dr DE Graham SC with Mr NM Bender Solicitor for the First Applicant: Maurice Blackburn Lawyers Solicitor for the Second Applicant: Shine Lawyers Counsel for the Respondents: Mr SG Finch SC with Ms DM Bampton Solicitor for the First Respondent: Herbert Smith Freehills Solicitor for the Second Respondent: Norton Rose Fulbright
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 213 of 2011
BETWEEN: TAMMY MAREE STANFORD
First ApplicantJAMIE DUNSMORE
Second ApplicantAND: DEPUY INTERNATIONAL LTD
First RespondentJOHNSON & JOHNSON MEDICAL PTY LIMITED
Second Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
15 MAY 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The hearing dates for the period 2 June 2014 to 1 August 2014 be vacated.
2.The applicants pay the respondents’ costs, if any, thrown away by reason of the vacation of those hearing dates.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 213 of 2011
BETWEEN: TAMMY MAREE STANFORD
First ApplicantJAMIE DUNSMORE
Second ApplicantAND: DEPUY INTERNATIONAL LTD
First RespondentJOHNSON & JOHNSON MEDICAL PTY LIMITED
Second Respondent
JUDGE:
ROBERTSON J
DATE:
15 MAY 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
These representative proceedings were listed for hearing commencing on 2 June 2014 for a period of nine weeks concluding on 1 August 2014. In very general terms the proceedings are brought on behalf of persons who had certain hip implant surgery performed on them in Australia. The first respondent manufactured and the second respondent distributed in Australia hip implants for use in hip implant surgery to replace damaged hip joints.
When the matter came on for directions yesterday, 14 May 2014, Senior Counsel for the applicants applied for the hearing dates to be vacated for the first four weeks of the hearing, to the effect that the hearing commence on 30 June 2014. This was on the basis that the applicants’ legal representatives could not be in a position to file evidence in reply by the date directed, being 13 May 2014, and that that could not be done until 3 June 2014. This was said to be because the sheer size of the undertaking was much greater than anticipated. The other aspect of the matter, Senior Counsel put, was that the estimate of counsel for the applicants of how long the case would take, instead of some nine weeks, was now “16 weeks, maybe 16 to 18 weeks.” Senior Counsel referred to some 45 to 50 witnesses who needed to be called and to matters of scientific complexity. Senior Counsel for the applicants submitted that if the hearing did start on 2 June 2014 it would not finish within the time allocated.
The position of the applicants was that the hearing should commence on 30 June 2014, be taken as far as it could be and that it then be adjourned to be finished at a later point. Senior Counsel accepted that this proposal was not ideal but submitted it would be a prudent course in the interests of the just, quick and cheap disposal of the proceedings. Senior Counsel for the applicants submitted that a lot of work had gone into the preparation for trial and a lot of the matters could be substantially advanced in the period of five weeks beginning on 30 June 2014.
Senior Counsel for the respondents accepted the necessity, from the applicants’ perspective, of the vacation of the first four weeks of the hearing but opposed the hearing beginning on 30 June 2014 and the consequent splitting of the hearing so that it resumed some months later. Senior Counsel for the respondents submitted that it was the loss of a continuous hearing which was the respondents’ greatest concern.
It was common ground that if the hearing did not commence until 30 June 2014 it would not be finished in the 5 weeks that remained on the current hearing dates. It was also accepted that it would not be possible to find a period of 11 to 13 weeks, being the balance of the hearing as now estimated by Senior Counsel for the applicants, in the course of the remainder of calendar year 2014.
These being the competing proposals I turn to the more specific considerations which were put on each side in favour of either, on the part of the applicants, a start to the hearing on 30 June 2014 but with a substantial break, until early 2015, before the hearing could be resumed and concluded or, on the part of the respondents, that the hearing should not be commenced on 30 June 2014 because of the necessity for a substantial break and that the hearing should be in one continuous block of time, albeit in early 2015.
I should note that there was no evidence before me concerning the matters to which I now turn.
The applicants submitted that it was a weighty consideration that the group members had been told that the trial was to begin in June 2014, particularly because the group members were of advancing or advanced years. The applicants also submitted that if the hearing began on 30 June 2014 settlement of the proceedings would be facilitated.
As to questions of efficiency, the applicants submitted that it was not inefficient to have the hearing split and it was more efficient to begin the hearing on 30 June 2014 because many lawyers had been preparing the matter for hearing and that impetus would be lost.
It was submitted that it was also more efficient to use the remaining five weeks from 30 June 2014 as it would then be easier to find the necessary block of time for the remaining 11 to 13 weeks as opposed to 16 to 18 weeks.
The applicants submitted that if the hearing began on 30 June 2014 then the witnesses, including the lay witnesses, who would not be included in the conclaves of experts may be able to conclude their evidence; those witnesses would not have to return for the later hearing dates; and having that evidence concluded would save time in relation to the later expert evidence.
The most significant matter in my view is the length of the period, some six or seven months, between the end of the period of hearing proposed by the applicants and the commencement of the balance of the hearing of some 11 to 13 weeks.
I do not accept that in those circumstances splitting the hearing would be efficient. There can be no guarantee, and none was proffered, that the non-conclave evidence would be finished in the five week period beginning on 30 June 2014 and, even if it was, it was not suggested that the Court would make findings of fact on that evidence so as to enhance the prospect of the evidence of the other experts being more focused or more efficiently given. In those circumstances the evidence proposed to be given from 30 June 2014 would not be able to be put to one side but both the Court and the legal representatives of the parties, at least, would have to re-familiarise themselves with that material for the resumption of the hearing in 2015. What was proposed for 30 June 2014 and the following weeks was not a discrete exercise.
I do not accept that the hopes or expectations of the group members as to the commencement of the hearing are a weighty consideration: it is the conclusion of the hearing and judgment which must be of greater significance and even on the proposal of the applicants those matters will be delayed until 2015.
As to the proposition on behalf of the applicants that if the hearing began on 30 June 2014, settlement would be facilitated, I have no evidence and no way of assessing the likelihood of that being the case. Senior Counsel for the applicants asserted it and Senior Counsel for the respondents denied it and submitted that a split hearing would have the opposite effect on settlement prospects. In those circumstances I do not give it any weight.
I accept that there will be a loss of impetus if the hearing does not commence on 30 June 2014, but I have no basis for finding that that loss of impetus will be any greater than that occasioned by the matter being part heard for some six or seven months, even on the proposal of the applicants.
I also do not place any weight on the submission that it will be easier to find a mutually convenient period of 11 to 13 weeks, rather than 16 to 18 weeks, in 2015. This submission was put at a level of generality and I do not find persuasive any incremental difficulty in relation to five weeks. Certainly, in my opinion, it does not outweigh the inefficiency of having the proceedings part heard for a period of some six or seven months.
I note but do not place reliance on any timing issues flowing from the applicants’ proposed amendments to their statement of claim or from conclaves between the groups of experts. I also do not place reliance on the respondents’ submission that if the hearing was split it would be necessary to have the experts turn up more than once. That may be the case for some experts if, on the applicants’ proposal, those experts not involved in conclaves did not conclude their evidence in the five-week period beginning 30 June 2014.
I therefore order that the hearing for the period 2 June 2014 to 1 August 2014 be vacated. I will hear the parties on any consequential directions which should be made.
The respondents applied for an order that the applicants pay any costs thrown away by the loss of the hearing dates as originally fixed. In my opinion that is an appropriate order in the circumstances. Although the matter was not argued before me on the basis that any fault should be ascribed to the applicants, the respondents submitted they were ready to proceed on 2 June 2014 and should be indemnified for any costs thrown away by reason of the applicants’ application to vacate the hearing dates. I agree.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate:
Dated: 16 May 2014
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