Ethicon Sarl v Gill (No 2) [2021] FCAFC 52

Ethicon Sarl v Gill (No 2) [2021] FCAFC 52

The existing order was deficient because it did not identify the group members bound by the answers to common questions as required by s 33ZB(a). The order was varied to bind all persons who were group members as at 6 March 2020, other than those who had opted out by that date. The answer to common question 22 was reformulated by reference to the complications identified in common question 3 and the failures to disclose or make adequate disclosure identified in common question 18, reflecting the primary judge's analysis and findings. The appellants, having failed on the appeal, were ordered to pay the respondents' costs, with unresolved quantification to be assessed on a lump sum basis by...

Jurisdiction
Australia
Judgment Date
12 April 2021
Procedural Posture
Representative Proceedings Appeal / Determined on the Papers After Principal Judgment on the Form of Orders Addressing the Section 33 ZB Issue and Costs
Outcome
Orders of the primary judge made on 6 March 2020 varied; appellants ordered to pay the respondents' costs of the appeal; unresolved costs to be assessed on a lump sum basis by a Registrar.
Legal Topics
['section 33 ZB Binding Orders' 'identification of Group Members' 'common Questions' 'misleading or Deceptive Conduct' 'costs Follow the Event' 'lump Sum Costs Assessment']
['representative Proceedings' 'costs' 'consumer Protection'] ['section 33 ZB Binding Orders' 'identification of Group Members' 'common Questions' 'misleading or Deceptive Conduct' 'costs Follow the Event' 'lump Sum Costs Assessment']

Case Brief

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Procedural Posture

Representative Proceedings Appeal / Determined on the Papers After Principal Judgment on the Form of Orders Addressing the Section 33 ZB Issue and Costs

Legal Issues

  1. 1 ['Whether the orders should identify with precision the group members bound by answers to common questions under s 33ZB of the Federal Court of Australia Act 1976 (Cth).' "What answer should be given to common question 22 concerning why the respondents' conduct was misleading or deceptive or likely to mislead or deceive." "Whether the appellants should pay the respondents' costs of the appeal and whether any unresolved quantification should proceed by lump sum assessment."]

Ratio Decidendi

The existing order was deficient because it did not identify the group members bound by the answers to common questions as required by s 33ZB(a). The order was varied to bind all persons who were group members as at 6 March 2020, other than those who had opted out by that date. The answer to common question 22 was reformulated by reference to the complications identified in common question 3 and the failures to disclose or make adequate disclosure identified in common question 18, reflecting the primary judge's analysis and findings. The appellants, having failed on the appeal, were ordered to pay the respondents' costs, with unresolved quantification to be assessed on a lump sum basis by...

Court Disposition

Orders of the primary judge made on 6 March 2020 varied; appellants ordered to pay the respondents' costs of the appeal; unresolved costs to be assessed on a lump sum basis by a Registrar.

Orders

  • ['The orders of the primary judge made on 6 March 2020 be varied by replacing the words of order 1 with orders 1A and 1B identifying the answers to the common questions and binding all persons who were group members in the proceeding as at 6 March 2020, other than any persons defined at that time as group members...