Abbott v Zoetis Australia Pty Ltd (No 2) [2019] FCA 462

Abbott v Zoetis Australia Pty Ltd (No 2) [2019] FCA 462

Although the Court has power to order security for costs in a Part IVA class action, the discretion should not be exercised to order security in this open, unfunded product liability class action. The claims appeared to be modest individual claims of Australian horse owners, there was no evidence that substantial group members were opportunistically standing behind the impecunious applicant, group members were entitled to remain passive before opt-out and determination of common issues, and a security order or intrusive questionnaire process would create access to justice and case management complications disproportionate to the respondent's prejudice. The real risk of injustice to the...

Jurisdiction
Australia
Judgment Date
04 April 2019
Procedural Posture
Part IVA Representative Proceeding / Class Action Concerning Alleged Side Effects From an Equine Hendra Virus Vaccine / Respondent's Interlocutory Application for Security for Costs
Outcome
Respondent's interlocutory application for security for costs dismissed.
Legal Topics
['security for Costs' 'unfunded Open Class Actions' 'part IVA Representative Proceedings' "group Members' Costs Immunity" 'stultification' 'discretion to Order Security']
['civil Procedure' 'representative Proceedings' 'costs'] ['security for Costs' 'unfunded Open Class Actions' 'part IVA Representative Proceedings' "group Members' Costs Immunity" 'stultification' 'discretion to Order Security']

Case Brief

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Procedural Posture

Part IVA Representative Proceeding / Class Action Concerning Alleged Side Effects From an Equine Hendra Virus Vaccine / Respondent's Interlocutory Application for Security for Costs

Legal Issues

  1. 1 ['Whether the Court has power to order security for costs against a representative applicant in a Part IVA class action.' 'Whether security for costs should be ordered in an open, unfunded class action where the applicant is impecunious and group members may benefit from the proceeding.' "Whether the respondent's proposed notice and questionnaire process seeking group members' financial information should be ordered." 'How Bray v F Hoffmann-La Roche Ltd and Madgwick v Kelly apply to security for costs applications in class actions.']

Ratio Decidendi

Although the Court has power to order security for costs in a Part IVA class action, the discretion should not be exercised to order security in this open, unfunded product liability class action. The claims appeared to be modest individual claims of Australian horse owners, there was no evidence that substantial group members were opportunistically standing behind the impecunious applicant, group members were entitled to remain passive before opt-out and determination of common issues, and a security order or intrusive questionnaire process would create access to justice and case management complications disproportionate to the respondent's prejudice. The real risk of injustice to the...

Court Disposition

Respondent's interlocutory application for security for costs dismissed.

Orders

  • ["The respondent's interlocutory application for security for costs be dismissed." 'If an order for costs is sought in relation to the interlocutory application, then such an application is to be argued and determined at the next case management hearing.']