Darcy v Medtel Pty Ltd

A Delaware corporation with its principal place of business 15900 Valley View Court, Sylmar, California

REASONS FOR JUDGMENT 1 These are representative proceedings brought by the applicant on behalf of the following persons: "(a) persons who have had a Meta 1256 Pacemaker (singularly, a 'Pacemaker', and together, the 'Pacemakers'), surgically implanted by a doctor in Australia, where the Pacemaker was the subject of one or both of the hazard alerts issued in June and July 2000 (the 'Hazard Alerts'), or would have been the subject of one or both of the Hazard Alerts had the Pacemaker not already been explanted; and (b) the legal representatives of the estates of deceased persons who had a Meta 1256 Pacemaker, surgically implanted by a doctor in Australia, where the Pacemaker was the subject of one or both of the Hazard Alerts, or would have been the subject of one or both of the Hazard Alerts had the Pacemaker not already been explanted." It appears that the represented group comprises approximately 258 persons. 2 The details of the pleaded case need not be set out. In substance, the case pleaded is very similar to that pleaded against the first and second respondents by a different representative applicant in Courtney v Medtel Pty Limited, N 661 of 2000. I gave a judgment relating to the form of the opt out notice and associated issues in that case in Courtney v Medtel Pty Ltd [2001] FCA 1037. 3 The applicant has filed a notice of motion seeking orders pursuant to ss 33J, 33X and 33Y of the Federal Court of Australia Act 1976 (Cth). The orders sought follow very closely the orders made by me in Courtney v Medtel Pty Ltd. Similarly, the proposed opt out notice follows very closely the form of opt out notice approved by me in the earlier proceedings. 4 The affidavit evidence suggests that the circumstances of the present case, in so far as they bear on the orders sought by the applicant, are not materially different from those which arose in the earlier proceedings. Mr Clark, who appears on behalf of the respondents in these proceedings, consents to orders being made in the terms suggested by the applicant. 5 In my view, I should approve the form and content of the notice annexed to the affidavit of Ms Gilsenan affirmed on 21 September 2001. The date by which group members may opt out of the proceedings should be fixed as 30 November 2001. The parties should follow the agreed protocol, set out in the orders I propose to make. I note that no party has sought an order for costs in respect of the current application. 6 The orders that I make are the following:

1. The notice of motion filed on 21 September 2001 by the applicant be made returnable instanter.
2. Pursuant to s 33J(1) of the Federal Court of Australia Act 1976 (Cth) ("the Act"), 30 November 2001, is fixed as the date by which group members may opt out of the proceedings.
3. The form and content of the Notice, being Annexure RG1 to the affidavit of Rebecca Gilsenan affirmed on 21 September 2001 ("the Notice"), be approved for the purposes of s 33Y(2) of the Act.
4. Subject to Order 5, the Notice be sent to each group member or, in the case of a deceased group member, to the executor or administrator of the estate of the deceased group member.
5. The Notice be sent by pre-paid registered post.
6. The parties follow the protocol set out in this Order 6: (a) The applicant's solicitors will provide the respondents' solicitors Notices in envelopes which have been pre-paid for registered post. (b) The respondents' solicitors will address and post the envelopes to group members, other than those group members known by the respondent to be deceased. (c) In the case of any group member known to reside overseas, the respondents' solicitors will ensure that the envelope is posted with the correct postage for pre-paid registered post. (d) The envelope referred to in subparagraphs (b) and (c) will be posted not before 5 October 2001 and not later than 19 October 2001. (e) The field staff of the first respondent will contact each of the institutions and medical practitioners to whom the Pacemakers the subject of the proceedings were supplied, seeking information as to the current status of the patients in whom the Pacemakers were implanted. (f) The respondents' solicitors will provide to the applicant's solicitors by 5 October 2001, the name, last known address, date of birth and approximate date of death of any group member known to be deceased. (g) The applicants' solicitors will undertake by 12 October 2001 a search in the Probate Division of the Supreme Court of the State or Territory in which any deceased group member last resided, where such searches are available to the public. (h) Where the applicant's solicitors are able to identify the executor or administrator of the estate of the deceased group members, the envelope containing the Notice will be addressed and sent by the applicant's solicitors to that executor or administrator. (i) Where the applicant's solicitors are unable to identify the executor or administrator of the estate of the deceased group member, the applicants' solicitors will address the envelope containing the Notice to "The Estate of the late [name of deceased group member]". (j) Where a registered post envelope containing a Notice is returned to sender the parties will work together to identify updated contact details for the group member and wherever possible, re-post the Notice by pre-post registered post.
7. A copy of the Amended Application and Amended Statement of Claim be available for inspection at each District Registry of the Court during Registry hours on and after 5 October 2001. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville .

Solicitor for the Applicant: Maurice Blackburn Cashman