Gill v Ethicon Sarl (No 11) [2023] FCA 229

Gill v Ethicon Sarl (No 11) [2023] FCA 229

Because the Court's protective and supervisory role in representative proceedings continues after settlement approval, and because substantial administration costs were proposed for deduction from the settlement fund, it was appropriate to move toward an independent referee process to assess tender responses for a settlement administrator. The existing tenderers were commercial tenderers with no presently accrued legal interest sufficient to justify intervention, so their intervention applications were dismissed.

Jurisdiction
Australia
Judgment Date
16 March 2023
Procedural Posture
Representative Proceedings; Application for Settlement Approval Pursuant to S 33 V of the Federal Court of Australia Act 1976 (cth) and Determination of Just Distribution From an Approved Settlement Fund / Post Settlement Approval Case Management Concerning Dismissal of Intervention Applications and Proposed Appointment of a Referee for Settlement Administration Tender Process
Outcome
All applications for intervention by existing tenderers were dismissed, and the proceedings were to be listed for case management concerning just distributions and appointment of a referee.
Legal Topics
['settlement Approval' 'settlement Distribution Scheme' 'court Supervision of Class Action Settlements' 'appointment of Referee' 'competitive Tender Process for Scheme Administrator' 'intervention' 'legal Costs and Disbursements']
['representative Proceedings' 'civil Procedure' 'class Actions' 'consumer Protection'] ['settlement Approval' 'settlement Distribution Scheme' 'court Supervision of Class Action Settlements' 'appointment of Referee' 'competitive Tender Process for Scheme Administrator' 'intervention' 'legal Costs and Disbursements']

Case Brief

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Procedural Posture

Representative Proceedings; Application for Settlement Approval Pursuant to S 33 V of the Federal Court of Australia Act 1976 (cth) and Determination of Just Distribution From an Approved Settlement Fund / Post Settlement Approval Case Management Concerning Dismissal of Intervention Applications and Proposed Appointment of a Referee for Settlement Administration Tender Process

Legal Issues

  1. 1 ['How the Court should determine what payments out of the approved settlement fund are just under s 33V(2) of the Federal Court of Australia Act 1976 (Cth).' 'Whether applications for intervention by existing tenderers in relation to administering the settlement fund should be allowed.' 'Whether an independent referee should be appointed to inquire into and report on the tender responses for appointment of a scheme administrator.']

Ratio Decidendi

Because the Court's protective and supervisory role in representative proceedings continues after settlement approval, and because substantial administration costs were proposed for deduction from the settlement fund, it was appropriate to move toward an independent referee process to assess tender responses for a settlement administrator. The existing tenderers were commercial tenderers with no presently accrued legal interest sufficient to justify intervention, so their intervention applications were dismissed.

Court Disposition

All applications for intervention by existing tenderers were dismissed, and the proceedings were to be listed for case management concerning just distributions and appointment of a referee.

Orders

  • ['All applications for intervention by the existing tenderers in relation to administering the just distribution of payments from the settlement fund approved in these proceedings be dismissed.' 'The proceedings be listed for case management to make orders as to the determination of just distributions from the...