Zoetis Australia Pty Ltd v Abbott

FEDERAL COURT OF AUSTRALIA

Zoetis Australia Pty Ltd v Abbott [2019] FCAFC 153

Appeal from:

Application for leave to appeal: Abbott v Zoetis Australia Pty Ltd (No 2) [2019] FCA 462

File number:

NSD 589 of 2019

Judges:

ALLSOP CJ, PERRAM AND BEACH JJ

Date of judgment:

30 August 2019

Catchwords:

REPRESENTATIVE PROCEEDINGS – application for leave to appeal – where primary judge refused to make an order for security for costs in primary application – where applicant alleges error by primary judge in failing to undertake balancing exercise in Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153; 130 FCR 317 and Madgwick v Kelly [2013] FCAFC 61; 212 FCR 1 – no error found that went to basis of primary judge’s exercise of discretion – no basis for conclusion that primary judge failed to undertake appropriate balancing – application for leave to appeal refused with costs

Legislation:

Federal Court of Australia Act 1976 (Cth), s 43

Cases cited:

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

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

Date of hearing:

30 August 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Category:

Catchwords

Number of paragraphs:

13

Counsel for the Applicant:

Mr LV Gyles SC with Mr S Fitzpatrick

Solicitor for the Applicant:

Piper Alderman

Counsel for the Respondent:

Mr C Barry QC with Mr JE Rowe

Solicitor for the Respondent:

LHD Lawyers

ORDERS

NSD 589 of 2019

BETWEEN:

ZOETIS AUSTRALIA PTY LTD

Applicant

AND:

RACHAEL ABBOTT

Respondent

JUDGES:	ALLSOP CJ, PERRAM AND BEACH JJ
DATE OF ORDER:	30 AUGUST 2019

THE COURT ORDERS THAT:

1.The application for leave to appeal be refused with costs.

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

REASONS FOR JUDGMENT
(Revised from the transcript)

ALLSOP CJ:

1. This is an application for leave to appeal from orders made by a primary judge who was the docket judge in refusing an order for security for costs in the primary application.  The underlying suit is a representative proceeding brought in relation to the so-called Hendra virus vaccine. 

2. The relevant facts giving rise to the claims needs not be dealt with at any length.  They are referred to sufficiently in the reasons of the primary judge.  His Honour’s reasons encompass a statement of principle in [5]–[18], which, with one exception, is said to be free of error.  The one criticism – and it is a central criticism – that is made on the application for leave for appeal is contained within [15] of the learned primary judge’s reasons, which take the following form:

   Critically, however, context is everything, and nothing in Bray or Madgwick should be seen as delimiting or attenuating the broad discretion the Court has to order, or decline to order, security.  It is a discretion to be exercised judicially, having regard to a consideration of the particular facts…