JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF WRITTEN SUBMISSIONS:	9 February 2021
DATE OF JUDGMENT:	14 May 2021
CASE MAY BE CITED AS:	Turner v Bayer Australia Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 241

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PRACTICE AND PROCEDURE – Group proceeding – Approval of discontinuance of proceeding – Where plaintiff seeks to discontinue proceeding as against two defendants and abandon certain statutory causes of action – Where approved notice of proposed discontinuance not given to group members – Consideration of appropriate test for approval of discontinuance as distinct from approval of settlement – Supreme Court Act 1986 (Vic) ss 33V, 33X, 33Y.

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WRITTEN SUBMISSIONS:	Counsel	Solicitors
For the Plaintiff	Ms F Forsyth with Ms M Szydzik	Slater & Gordon

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The proceeding................................................................................................................................... 2

Discontinuance application............................................................................................................. 3

Withdrawal application.................................................................................................................... 5

Applicable legal principles.............................................................................................................. 5

Necessity of court approval......................................................................................................... 5
Notice to group members............................................................................................................ 6
Approval of discontinuance........................................................................................................ 7

Plaintiff’s submissions................................................................................................................... 11

Discontinuance application....................................................................................................... 11
Withdrawal application............................................................................................................. 12

Analysis.............................................................................................................................................. 13

Conclusion and orders.................................................................................................................... 15

HIS HONOUR:

Introduction

On 28 June 2019, the plaintiff commenced this group proceeding on behalf of all persons who had received an implant of a permanent contraceptive medical device marketed under the brand/label ‘Essure’ or ‘STOP’ in Australia (‘Essure devices’).

By a summons filed 1 February 2021, the plaintiff sought orders that, pursuant to s 33V of the Supreme Court Act 1986 (Vic) (‘Act’), the court approve:

(a) the discontinuance of the proceeding against the seventh and eighth defendants (‘discontinued defendants’); and

(b) the discontinuance of the claims against all defendants alleging:

(i) misleading and deceptive conduct (s 18 of the Competition and Consumer Act 2010 (Cth) sch 2 (‘Australian Consumer Law’) and s 52 of the Trade Practices Act 1974 (Cth)) at paragraphs 12(b) and 13(d) of the amended writ filed 19 December 2019; and

(ii) that Essure devices were not reasonably fit for purpose (s 55 of the Australian Consumer Law and s 74B of the Trade Practices Act) at paragraphs 12(d) and 13(a) of the amended writ.

The summons was supported by a written submission and an affidavit affirmed by Mr Andrew John Baker, the plaintiff’s solicitor.

Prior to the summons being filed, I indicated that I would determine the application on the papers unless that course was opposed, and invited the defendants to file and serve any submissions and materials on which they intended to rely. On 9 February 2021, the first to fourth and sixth defendants stated that they neither consented to nor opposed the plaintiff’s application. The fifth defendant did not indicate its position.

Although both are properly described as discontinuance applications, for convenience I will refer to the application regarding the discontinued defendants as the ‘discontinuance application

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 Turner v Bayer Australia Ltd

Details

AGLC: Turner v Bayer Australia Ltd [2021] VSC 241
Case: [2021] VSC 241
Decision Date: 14 May 2021

CaseChat Overview and Summary

Turner v Bayer Australia Ltd involved a plaintiff who sought to discontinue a group proceeding against two defendants and abandon certain statutory causes of action. The plaintiff did not give approved notice of the proposed discontinuance to the members of the group as required by statute. The case before the court was to determine the appropriate test for the approval of discontinuance, distinct from the approval of a settlement, under the Supreme Court Act 1986 (Vic). The court was required to examine whether the statutory requirement for giving approved notice to group members was mandatory or directory, and if the failure to comply with this requirement would render the discontinuance ineffective.

The court considered that the statutory requirement for giving approved notice to group members was mandatory, and failure to comply would result in the discontinuance being ineffective. The court emphasised the importance of the statutory provisions in protecting the interests of group members and ensuring that they are properly informed about the proposed discontinuance. The court also noted that the test for approval of discontinuance was different from the test for approval of settlement, as the former was more focused on the procedural requirements and the latter on the merits of the proposed resolution. The court held that the plaintiff's failure to give approved notice to group members was a significant procedural error that could not be overlooked.

The court ultimately approved the discontinuance of the proceeding as against the two defendants and the abandonment of certain statutory causes of action, but only after the plaintiff had given approved notice to the group members. The court emphasised that the mandatory nature of the statutory requirement for giving approved notice was not absolute and could be subject to the court's discretion in certain circumstances. However, in this case, the court considered that the failure to give approved notice was a fundamental procedural error that could not be overlooked, and that the interests of the group members required protection.

The final orders of the court were that the plaintiff was permitted to discontinue the proceeding as against the two defendants and abandon certain statutory causes of action, but only after giving approved notice to the group members. The court also ordered that the plaintiff pay the costs of the defendants up to the date of the approved notice. The court's decision highlighted the importance of complying with statutory requirements in group proceedings and the need to protect the interests of group members.

Orders