Gill v Ethicon Sarl (No 7) [2020] FCA 700

Gill v Ethicon Sarl (No 7) [2020] FCA 700

Respondents unreasonably denied key facts about device complications, creating false issues and causing unnecessary costs. Orders for lump sum costs are appropriate given case complexity but the proportion of indemnity costs must await further evidence.

Parties
Applicant: Kathryn Gill; Applicant: Diane Dawson; Applicant: Ann Sanders; Respondent: Ethicon Sàrl; Respondent: Ethicon Inc.; Respondent: Johnson & Johnson Medical Pty Ltd
Jurisdiction
Australia
Judgment Date
25 May 2020
Procedural Posture
Representative Action / Post Trial Costs Determination
Outcome
Costs to be fixed in lump sum; proportion of indemnity costs reserved; respondents to pay applicants' interlocutory costs; costs of indemnity costs application reserved.
Legal Topics
Costs, Indemnity Costs, Lump Sum Costs, Court Practice and Procedure
Civil Procedure Consumer Protection Product Liability Costs Indemnity Costs Lump Sum Costs Court Practice and Procedure

Case Brief

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Parties

Kathryn Gill

Applicant

Diane Dawson

Applicant

Ann Sanders

Applicant

Ethicon Sàrl

Respondent

Ethicon Inc.

Respondent

Johnson & Johnson Medical Pty Ltd

Respondent

Procedural Posture

Representative Action / Post Trial Costs Determination

Legal Issues

  1. 1 Whether respondents' conduct justified an order for indemnity costs for 90% of applicants' costs
  2. 2 Whether lump sum costs order should be made
  3. 3 Timing for assessment of costs pending appeal

Ratio Decidendi

Respondents unreasonably denied key facts about device complications, creating false issues and causing unnecessary costs. Orders for lump sum costs are appropriate given case complexity but the proportion of indemnity costs must await further evidence.

Court Disposition

Costs to be fixed in lump sum; proportion of indemnity costs reserved; respondents to pay applicants' interlocutory costs; costs of indemnity costs application reserved.

Orders

  • The costs be fixed in a lump sum.
  • The question of what proportion of those costs should be paid on an indemnity basis be reserved.