the decision appealed from
101 Her Honour identified the following topics as arising from the paragraphs listed in par 159 of the statement of claim:
· Paragraph 9 (meaning of calibration).
· Paragraphs 10, 17, & 30 (importance of calibration).
· Paragraphs 15, 20, 25, 33, 40, 43, 44, 48, 49, 53, 54 & 64 (manuals and promotional material supplied to hospitals and doctors).
· Paragraphs 18, 19, 22, 23 & 24 (content of warning).
· Paragraph 21 (care of Filshie applicators).
· Paragraphs 26, 34, 37 & 38 (importance of checking calibration and keeping records of use).
· Paragraphs 27, 28, 31 & 32 (availability of means of checking calibration of Filshie applicator).
· Paragraphs 16, 35, 36, 66, 67, 97, 105 & 114 (knowledge of respondents).
· Paragraph 39 (Filshie applicators not known to have been regularly checked should not be used).
· Paragraphs 42, 47 & 52 (same Filshie applicators supplied over time).
· Paragraphs 45, 50, 55, 94, 96, 102, 104, 111, 113, 143(b) and 145(b) (information given to hospitals and doctors).
· Paragraphs 60 to 63 (publicity).
· Paragraph 65 (relevant hospitals and doctors failed to have Filshie applicators serviced regularly).
· Paragraphs 95, 103, 112, 143(b) and 145(b) (warnings not given to distributors).
· Paragraphs 98, 100, 106, 108, 115 and 117 (reasonable and legitimate expectations of relevant hospitals, doctors and distributors).
· Paragraphs 99, 101, 107, 109, 116, 118, 142 and 144 (existence of duty to give certain warnings to relevant hospitals, doctors and distributors and to take certain steps).
· Paragraph 110 (certain statements did not constitute a required warning).
· Paragraphs 119 and 120 (certain representations made to relevant hospitals, doctors and distributors).
· Paragraphs 121 to 134 (certain misleading or deceptive and certain statements inaccurate).
· Paragraph 135 (aiding and abetting).
· Paragraphs 136 to 141 (certain conduct is in trade and commerce).
· Paragraph 29 (no means of checking Filshie applicator is in calibration available to hospitals and doctors).
· Paragraph 146(a) (access to "onsite" gauge).
· Paragraphs 143(a) and 145(a) (failure to design and make available an onsite gauge is breach of duty of care).
· Paragraphs 147, 148, 151, 152, 154, 155, 157 and 158 (lost chance to avoid loss and damage, increased risk of loss and damage).
· Paragraph 149 (if warnings had been given, an onsite gauge would have been developed).
· Common question of law in relation to group a members - damages for birth of healthy child.
102 Her Honour identified the following issue as arising from the statement of claim with respect to the importance of calibration (at [28]):
"The use in a Filshie Procedure of a Filshie applicator which is not adjusted so that it will sufficiently close the Filshie clip so as to occlude the fallopian tube without cutting it increases the risk of a failed sterilisation."
103 Her Honour accepted the first respondent's submission that this statement was unlikely to be controversial. Her Honour accepted that evidence as to what might occur if an applicator was out of calibration would require expert evidence and that the evidence might be relevant and significant in determining the claims of group members. Its relevance lay in connexion with determining the duty to warn, whether the respondents' conduct in that regard was such as that it might have been misleading and deceptive within the meaning of s 52 of the TPA and also in assessing the likelihood that the pregnancy of a Group A member arose from use of a Filshie applicator that was out of calibration. Her Honour considered that the question of causation was best dealt with at the level of the individual group member, and that it was "pointless to consider this question in the abstract"[30]. Her Honour accepted that the first respondent would seek to show that a failed sterilisation is more likely to be attributable to hospital or surgeon error than an applicator which is out of calibration and that:
"Resolution of this issue is likely to depend on evidence of what the surgeon observed during and after the procedures, what a competent surgeon might be expected to conclude from such observations, the position of the Filshie clip after the procedure (where this has been subsequently investigated) and the status of the relevant Filshie applicator at or about the time of the operation rather than on a general proposition that use of a Filshie applicator that is out of calibration may have negative consequences" (at [30]).
104 Her Honour also concluded that the question whether regular servicing would have ensured that Filshie applicators remained in calibration was a common one, albeit an uncontroversial one. So far as concerned the actual use of Filshie applicators, as to how they were handled and the likelihood that they would be handled by more than one person, to the first respondent's knowledge, her Honour considered that practices would almost certainly vary from hospital to hospital and concluded that the issue was not a common one. Her Honour dealt with the question of the first respondent's knowledge separately. Her Honour considered that the allegations concerning the importance of checking calibrations and keeping records gave rise to inferences, but not to common issues. Further, they were described too generally to be of application in the group members' cases. The allegation that the hospital and doctors failed to have the applicators serviced regularly was not a common issue, in her Honour's view. It would require separate evidence in each case. Her Honour considered the possibility of creating sub-groups, but considered that it was difficult to assess the benefit of a finding on this issue to the various sub-groups.
105 So far as concerned the knowledge of the respondents, as to matters such as the importance of maintaining the applicators in calibration and that they were not in fact checked regularly, that issue was held to be common in the negligence claim, but not common to the claim under s 52 of the TPA. Whether there was no means available to the hospitals and doctors to check whether an applicator was in calibration could not, in her Honour's view, be a common issue since they may have had different means at their disposal to check whether that was the case. As to the allegation that the first respondent could have made such a device available to users, some common issues were raised. Whether it would have been used, was not a common issue, but required evidence in each case.
106 Her Honour appears to have considered the possibility that different manuals and promotional materials were supplied from time to time. In any event her Honour did not consider that proof in any given case would be onerous and, implicitly, thought that not much was to be gained by it. Other information provided to users was not a common issue since it was quite possible that different information was provided by distributors and sub-distributors to different hospitals and doctors in face-to-face meetings. This possibility had been adverted to in the evidence.
107 The statement of claim had alleged that doctors and hospitals would have had an expectation that any necessary warnings would be given. Her Honour did not consider these allegations to raise common issues since much would depend upon the individual's circumstances and experience. Similarly her Honour held that the question whether a duty was owed to users and the content of that duty could not be said to be common because of the variation in circumstances. At another point her Honour held that whilst the applicant's pleading referred to other warnings, her case required only one to be given, namely that each applicator should be checked immediately before use. I infer that her Honour considered that this would require little by way of evidence. The allegation that warnings were not given gave rise to both common and uncommon issues. Evidence as to information passing between the first respondent and the Australian distributors was common; but evidence as to information passing between the distributors and sub-distributors was not. Whether certain statements made in the material provided to the hospitals constituted a required warning was a common issue. Her Honour however considered that this did not necessarily conclude the question, as different information might have been provided.
108 The representations said to have been made to distributors, hospitals and doctors were common and, her Honour observed, were based on evidence that was common to both the applicant and group members namely the material provided to them. However the respondents might seek to raise a case that no implication could be said to arise from the material because of the circumstances of the sale of the Filshie equipment and accordingly the issue was not common. So far as concerned conduct said to be misleading and deceptive, her Honour again considered that the conduct could be different with respect to each hospital or doctor. Therefore it was not a common issue. Her Honour also held that whether the first respondent was guilty of accessorial liability, with respect to the conduct of the second respondent, was not a common issue. That would not be known until after findings were made as to the second respondent's conduct.
109 Of the few remaining matters which her Honour had listed, only two were considered to be common: whether the first respondent was acting in trade and commerce in Australia, which it had said it would put in issue, and a legal issue about the measure of damages for Group A members.
110 Her Honour concluded that there were a number of issues that could be said to be common and substantial in the sense referred to in Wong v Silkfield Pty Ltd (1999) 199 CLR 255, 266-267. It was there held that for a common issue to be regarded as "substantial" for the purposes of s 33C(1), it was not necessary that its determination would have a major impact on the litigation, but only that the issue said to be common was "real or of substance" [27, 28]. As her Honour observed, the requirement in s 33C was easier to meet than had previously been thought.
111 Her Honour listed (at [63]) the issues which were not considered to be common:
· whether the woman is a group member (and whether she is in group A or B);
· whether the Filshie applicator used in the woman's operation can be identified;
· whether the Filshie applicator used in the woman's operation was regularly serviced;
· whether the Filshie applicator used in the woman's operation was out of calibration at the time of the procedure and, if so, whether it was sufficiently out of calibration to cause the procedure to fail (taking into account the woman's biology and blood pressure);
· whether the surgeon who carried out the procedure was aware of the alleged propensity of Filshie applicators to lose calibration;
· whether the woman's pregnancy (in the case of Group A) arose as the result of an improperly calibrated applicator as opposed to, for example, surgeon error;
· whether the woman would be in a different situation had the warnings been given (for example, the doctor may already have known of these matters or may have ignored any warning given);
· whether the relevant hospital and doctor relied on any misrepresentations made; and
· what is the amount of any loss and damages.
112 It was submitted for the applicant before her Honour that, because the issues remained poorly defined, it was premature to consider the application of s 33N. Her Honour did not accept that submission. In her Honour's view the applicant could not be prejudiced if the matter was approached on the basis that the respondents would put each allegation in issue.
113 Her Honour then proceeded (at [66]) to consider those common issues which might be determined in the applicant's proceeding and to evaluate what assistance that might provide in the determination of the claims of the group members. Those identified were as follows:
"(a) the content of manuals and promotional material generally supplied to hospitals;
(b) the content of any necessary warning;
(c) whether an onsite gauge had or should have been developed in 1982;
(d) the knowledge of the two respondents;
(e) the Filshie applicators that were supplied over a period of time were similar in appearance and functionality;
(f) the existence and content of the publicity following the "John Hunter incidents";
(g) information passing between Femcare and Endovasive (and previous exclusive Australian distributors);
(h) whether certain alleged conduct was misleading or deceptive ([51]); and
(i) whether Femcare was carrying on business in Australia"
114 Her Honour concluded that only issue (a) could be said to provide a benefit from a single determination. Even then it would be more efficiently dealt with by alternative case management procedures. In her Honour's view any findings made with respect to the content of the manuals and any necessary warning (issues (a) and (b)), could not be said to be of great importance, since the case was based upon omissions. Issues (c) and (d) were relevant to the scope of any duty of care owed by Femcare, but that question could not however be determined by reference solely to those issues. Issue (g) was to be viewed in a similar light. Issues (e) and (f) were, her Honour considered, unlikely to involve much, if any, controversial evidence. In relation to whether certain conduct was misleading or deceptive, the applicant had submitted that it was not necessary to consider, in each case, the knowledge of the particular people targeted. Her Honour considered, however, that the difficulty the applicant faced in relying upon this issue was that different conduct may have been directed towards different hospitals and doctors "(that is, they may have received different information)".
115 The applicant argued before her Honour that the respondents should not benefit from the fact that individual group members might not consider it worthwhile to commence proceedings of their own: Ryan v Great Lakes Council (1998) 155 ALR 447, 456; ACCC v Giraffe World Australia Pty Ltd (1998) 84 FCR 512, 534. In her Honour's view that was only one aspect of the policy of Part IVA of the Act. Section 33N provides for an order that a proceeding not continue unless the Court is satisfied "that it is in the interests of justice to do so" and recognises that there may be circumstances where, despite the existence of substantial common issues, the procedures under Part IVA are not appropriate. In that regard her Honour considered some other factors, pertaining to the proceedings, to be relevant.
116 The respondents argued that the surgeons and hospitals responsible for each of the procedures would not be joined by the applicant to the proceedings. This was said to disadvantage the respondents and also to lull women falling within Group A "into a false sense of security" about time limits for making such a claim, in addition to the claims here made. The applicant submitted, in response, that it was a matter for individual group members or their legal advisers to decide whether to join the doctors. Further it was submitted that if the common issues were determined in the applicant's favour, the respondents would retain a right of contribution against the doctor concerned. Her Honour said in this regard (at [76]):
"Despite the possibility of the respondents claiming contribution from surgeons in any case involving joint negligence, proceeding in this manner does not lend itself to efficient resolution of the claims of the group members. Further, the doctor would not be bound by findings of fact made in the main proceedings and it is possible that, following the doctor's evidence and submissions, inconsistent findings of fact would be made."
117 The first respondent also submitted before her Honour that the existence and content of any duty of care would depend upon the circumstances pertaining to the recipient of the warning. Her Honour accepted that it would be necessary, at the least, to assess the knowledge of the practitioner carrying out the procedure. In this regard it would be necessary to consider both information generally provided by the respondents, and information provided to the individual doctor. The respondents' promotional material would need to be considered having regard to the circumstances of each case. Her Honour concluded (at [78]):
"Having reviewed the evidence and the submissions made by both parties, I have concluded that the representative proceeding will not provide an efficient and effective means of dealing with the claims of the group members and that, in the interests of justice, it should not continue under Pt IVA of the Act. Although there are issues of substance common to the claims of group members, in the main, they are either issues that are stated at such a level of generality that their resolution will not materially advance the determination of the claims of individual group members and/or they would need to be revisited in the context of each group member's claim. In addition, the intertwining of the common and individual issues is such that I also believe that the costs of continuing the proceeding under Pt IVA are likely to exceed the costs that would be incurred by dealing with the claims of group members individually. There are established techniques of case management by which these costs can be minimised, for example by ensuring that all individual claims are dealt with by the same judge. It may be that, as the respondents suggested, those claims could dealt with more cost effectively in another jurisdiction."
118 Because of the view her Honour had reached, it was not necessary for her to consider the second respondent's contention, that the mandatory requirements of s 33H were not met. The second respondent has given notice of that contention as another basis for supporting the orders made by her Honour.