Ethicon Sàrl v Gill

1 Section 33ZB Issue 2 There were two aspects to the Section 33ZB Issue. 3 First, although the existing Order 1 made on 6 March 2020 identifies the answers to the questions posed by the primary judge as between the parties (which binds those parties by application of orthodox principles of res judicata and issue estoppel), the current order is deficient in a class action. As was made evident during the course of oral submissions on the appeal and in the judgment (see, for example, at J[55] and [813]), s 33ZB(a) of the Federal Court of Australia Act 1976 (Cth) provides that any answers binding non-parties, that is, the group members, must describe or otherwise identify the group members who will be affected by it. 4 Neither draft order provided by the parties addresses this requirement - although we noted in the judgment that precision in this regard is important, particularly in a case such as the present as there has been significant confusion between the parties as to who precisely was a group member at various times. We noted at J[813] that in the absence of any submissions on the point, we presumed that the non-parties who will be bound by the statutory estoppel would be "all persons who were group members pursuant to the group definition extant at the end of the initial trial, save for any persons who opted-out". In the absence of any submission to the contrary, a variation to the order will be made to this effect to ensure the order complies with the requirements of s 33ZB(a). 5 Secondly, is the proper form of answer to common question 22: "Why was the respondents' conduct misleading or deceptive or likely to mislead or deceive?" The form of answer proposed by the appellants was as follows: Throughout the period from the first supply in Australia of the Ethicon devices to 4 July 2017, the respondents failed to provide adequate information, advice or warnings in the instructions for use or marketing materials to group members or their treating surgeons about the complications as described in the answers to common questions 3 and 18. 6 The form of answer proposed by the representative respondents was: Throughout the period from the first supply in Australia of the Ethicon devices to 4 July 2017, the respondents' conduct in marketing the Ethicon devices was misleading or deceptive or likely to mislead or deceive because the information in the IFUs and brochures provided to patients and surgeons about the Ethicon devices omitted warnings of the complications referred to in questions 3 and 4 above, and the gravity of those complications. 7 The Court formed the preliminary view that it may be the case that neither proposed answer sufficiently responded to the need, identified in the judgment (at [816]-[817]), that answers to common questions, like declarations to similar effect, should contain in their terms sufficient indication about how and why the relevant conduct contravened the applicable statutory norm and that the answer should, in express terms and in detail, identify the conduct found to have been misleading and deceptive or likely to mislead and deceive. 8 After raising our preliminary concerns as to the form of s 33ZB order, we received a supplementary submission from the appellants. After reviewing this material, we are satisfied, as the appellants submit, that the answer to the common question "Why was the respondents' conduct misleading or deceptive or likely to mislead and deceive" must, in the circumstances, be found in Part XI of the primary judgment so as to reflect the primary judge's analysis and findings (and this is achieved by linking the answer to question 22 to other answers given by her Honour). 9 We cannot pass from this issue without repeating our concerns that identifying the answers to common questions and ensuring that the answers are in proper form has been made difficult by the failure of the parties to engage in either agreeing the common questions or ensuring the Court resolved any dispute as to their form in advance of the initial trial. There are findings of her Honour which go to common issues which are not caught by the answers given. As we indicated in the judgment, it is no part of our role to recraft the common questions (and provide answers to them) in the absence of a ground of appeal. Although for reasons we have explained in the principal judgment, this may have no practical importance to later group member determinations (given the way the primary judge resolved relevant contested issues), in other class actions, this failure to give attention to formulating common questions in advance of an initial trial could cause significant difficulty. 10 Given the way the case was run below and the findings of the primary judge, orders should be made in the following terms: The orders of the primary judge made on 6 March 2020 be varied by replacing the words: (1) of Order 1 with the following: 1A The answers to the common questions identified on 6 March 2020 (common questions) are as specified in Schedule A to this order. 1B Pursuant to s 33ZB of the Federal Court of Australia Act 1976 (Cth) all persons who were group members in the proceeding as at 6 March 2020 (other than any persons defined at that time as group members who had opted-out of the proceeding by that date) are bound by the answers to the common questions as specified in Schedule A to this order. (2) appearing as the answer under "Q22: Why was the respondents' conduct misleading or deceptive or likely to mislead and deceive?", with the following: In circumstances where: (a) the Ethicon devices caused the complications identified in the answer to common question 3 above; and (b) the respondents failed to disclose or make adequate disclosure of the matters identified in the answer to common question 18 above, throughout the period from the first supply in Australia of the Ethicon devices to 4 July 2017, the conduct of the respondents in the marketing and promoting of the Ethicon devices was conduct that was misleading and deceptive or conduct likely to mislead and deceive.

2 Costs Issue 11 There is no reason why the costs of the appeal should not follow the event. Absent resolution, to proceed to a lump-sum assessment of the costs payable would be consistent with the quick, inexpensive and efficient resolution of any dispute as to the quantum of costs. This was the course that commended itself to the primary judge below (see Gill v Ethicon Sàrl (No 7) [2020] FCA 700; (2020) 146 ACSR 137) and it is the appropriate course to be adopted on appeal. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Jagot, Murphy and Lee.