Philipsen v American Medical Systems LLC (No 2) [2018] FCA 1580

The interlocutory application was dismissed because s 33K was not enlivened: the group description was in the statement of claim, not the originating application, and no leave had been given to amend the originating application to alter the group description. In any event, the original statement of claim already included women implanted with nominated AMS sling devices, including Ms Seymour if her pleaded facts were proved, and Part IVA allowed Ms Philipsen to represent group members with different but related claims where s 33C was satisfied. The claims of the Mesh and Sling Sub-Groups arose from at least similar or related circumstances and raised substantial common issues. The...

Jurisdiction: Australia
Judgment Date: 19 October 2018
Procedural Posture: Representative Proceeding Under Pt IVA of the Federal Court of Australia Act 1976 (cth) Concerning Alleged Injuries From Transvaginal Implantation of Medical Devices / Respondent's Interlocutory Application for Orders Under S 33 K That Amendments to the Group Description Take Effect From 31 July 2018
Outcome: Respondent's interlocutory application dismissed.
Legal Topics: ['amendment of Group Description' 'section 33 K of the Federal Court of Australia Act 1976 (cth)' 'suspension of Limitation Periods Under S 33 Ze' 'capacity of Representative Applicant to Represent Sub Groups' 'common Issues in Representative Proceedings' 'certainty of Group Member Definition']

['practice and Procedure' 'representative Proceedings' 'consumer Protection' 'product Liability' 'negligence'] ['amendment of Group Description' 'section 33 K of the Federal Court of Australia Act 1976 (cth)' 'suspension of Limitation Periods Under S 33 Ze' 'capacity of Representative Applicant to Represent Sub Groups' 'common Issues in Representative Proceedings' 'certainty of Group Member Definition']

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Procedural Posture

Representative Proceeding Under Pt IVA of the Federal Court of Australia Act 1976 (cth) Concerning Alleged Injuries From Transvaginal Implantation of Medical Devices / Respondent's Interlocutory Application for Orders Under S 33 K That Amendments to the Group Description Take Effect From 31 July 2018

Legal Issues

1 ['Whether s 33K empowered the Court to order that amendments to a group description contained in a statement of claim, rather than the originating application, take effect from the date of amendment.' 'Whether Ms Philipsen could represent group members in the Sling Sub-Group although she was implanted with a different device for a different medical condition.' 'Whether the original pleading included Ms Seymour and other women implanted with AMS sling devices as group members.' 'Whether claims of the Mesh Sub-Group and Sling Sub-Group arose out of the same, similar or related circumstances and gave rise to a substantial common issue of law or fact under s 33C(1).' 'Whether the amended group definition could include persons whose surgery and complications would occur at an unknown future time before judgment or settlement approval.']

Ratio Decidendi

Court Disposition

Respondent's interlocutory application dismissed.

Orders

['The interlocutory application filed by the respondent on 6 September 2018 be dismissed.' 'The Court noted that the respondent consents to the applicants amending the Amended Statement of Claim to delete from the chapeau to paragraph 1(b) in the description of the group members the words "at any time, including...