THE RESPONDENTS' MOTION UNDER S 33N
28 Section 33N(1) of the Federal Court of Australia Act provides as follows:
The Court may, on application by the respondent or of its own motion, order that a proceeding no longer continue under this Part where it is satisfied that it is in the interests of justice to do so because:
(a) the costs that would be incurred if the proceeding were to continue as a representative proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding; or
(b) all the relief sought can be obtained by means of a proceeding other than a representative proceeding under this Part; or
(c) the representative proceeding will not provide an efficient and effective means of dealing with the claims of group members; or
(d) it is otherwise inappropriate that the claims be pursued by means of a representative proceeding.
In the motion before the court, the respondents relied upon pars (c) and (d) of this sub-section.
29 Counsel for the respondents made it clear that they were not concerned to challenge the propriety of the proceeding having been commenced under Part IVA of the Federal Court Act. They recognised that a proceeding such as the present may involve separate acts or omissions of the respondents done or omitted to be done in relation to individual group members: see s 33C(2)(b)(ii). However, they pointed out that s 33N necessarily contemplated a situation in which, notwithstanding that the requirements of s 33C were satisfied, the court might, in its discretion, take the view that it was no longer in the interests of justice that the proceeding be a representative one. They contended that such a situation arose in the present case.
30 It was submitted on behalf of the respondents that it is apparent, by reference to the nature of the claims in the case and of the applicant's non-expert evidence, that there are no substantial issues in the proceeding beyond those which are involved in the applicant's individual claim; or, to the extent that there are such issues, that they do not justify the proceeding remaining as a representative one. It was submitted that resolution of the applicant's claim will not, or at least will not necessarily, resolve issues which are substantial enough to justify the procedure for which Part IVA of the Federal Court Act provides. These broad submissions were supported by reference to an analysis of the causes of action on which the applicant sues, to the allegations which he makes in his pleading, and to the legal consequences of the resolution of his case.
31 As to the applicant's claim in negligence, counsel for the respondents pointed out that the applicant had to establish the existence of a duty of care, the breach of that duty, the events which were caused by that breach and the suffering of loss or damage as a result of those events. While they accepted that the applicant's factual case with respect to some of these elements might be expected to resolve corresponding issues in the cases of other group members, they submitted that the other elements, which related only to the applicant, would be so significant, and so weighty in the parties' evidentiary cases generally, as to make it inappropriate for the proceeding to be a representative one.
32 Counsel submitted that, in any negligence claim, the existence and content of the duty of care must necessarily take into account the particular circumstances of those to whom it is presumptively owed, but the present case involves additional complications. First, the consumption of Vioxx is mediated through the medical practitioners who prescribe it and the pharmacists who dispense it. That is to say, the influences which may be presumed to have borne upon the applicant and others who took Vioxx were not, even as alleged, merely the doing of the first respondent. Secondly, there is no suggestion by the applicant of negligence in the manufacturing process of Vioxx. This was a specific product which was made as intended and was, moreover, approved for consumption by the TGA. Rather, the applicant's case was that the consumption of Vioxx carried with it the risk of unwanted side-effects. This means that the content of the respondents' duty of care would depend upon the availability from time to time of information relevant to the risk alleged, and the interaction of that risk with other factors, varying as between individuals, which predispose them towards cardiovascular outcomes of the kind referred to in the applicant's pleading. Thirdly, the applicant's case involves a range of alternative allegations and fall-back positions varying with reference to the level and duration of the use of Vioxx. It is said that the applicant claims, for instance, not only that the first respondent should have withdrawn Vioxx from the market, but alternatively that it should have advised consumers to use it only under certain conditions, for certain periods or in certain doses - depending, in each case, upon the circumstances of the particular person and the advice which he or she received from his or her practitioner. Counsel for the respondents submitted that the existence of these complications will shift the centre of gravity of the forthcoming trial far away from issues which the applicant's case will have in common with the cases of others and towards issues which relate to his case alone. And to this, according to counsel, must be added the indisputably individual aspects of any negligence case, causation and damages.
33 With respect to the case under s 52 of the Trade Practices Act, counsel for the respondents made a distinction between the applicant's allegations of positive conduct - such as the making of the so-called Vioxx representations - and the applicant's allegations of omissions. As to the former, counsel submitted that the applicant's case apparently would be based on the first respondent's communication to its employees and representatives (largely those who are alleged to have interacted with the medical profession) of information about Vioxx that should be regarded as having been misleading or deceptive. It was submitted that a corporation's communications with its own staff could not be regarded as conduct capable of giving rise to a s 52 claim by a third party. What mattered was the content of the communication made to that third party, and in the assumed circumstances of the present case that was done not by the first respondent but by persons over whom it had no control, the various prescribing practitioners. And even then, in one of its aspects the applicant's case is, it was said, more problematic again, in that these practitioners were themselves alleged to be influenced in what they prescribed by the so-called key opinion leaders in the profession. Here the respondents were not making the point that the applicant's s 52 case was likely to fail: rather, they were indicating respects in which that case will inevitably not be made good without a consideration of the messages that were conveyed to him as an individual by his own treating practitioners, and, without a consideration of the other professional influences to which those practitioners were subject. These last aspects, it was submitted, would not be common ones as between the applicant and other group members.
34 To the extent that the applicant's s 52 case is based on omissions, counsel for the respondents submitted that it was, apparently, an allegation of conduct by silence. Whether the conduct was misleading or deceptive necessarily depended on the body of information actually or constructively available to the first respondent from time to time, and the relevance of that information to the individual circumstances of each group member. As I understood them, counsel for the respondents made the same kind of submissions here as they made with respect to so much of the applicant's negligence case as alleged a failure to act at various points in time and in various circumstances. There was, they submitted, a great deal in the applicant's own case that is unlikely to have relevance to the cases of other group members.
35 Against the broad understanding of the points they made as summarised above, counsel for the respondents dealt somewhat more compendiously with the applicant's case under other provisions of the Trade Practices Act. With respect to s 74B, they submitted that the case was not to be approached on the assumption that the single purpose (of consuming Vioxx) which was common to all group members was relief from the discomfort of arthritis. They submitted that the purpose of each group member was an individual factual entity, as it were, which depended on the particular state of his or her condition and the advice which he or she had received from his or her treating practitioner. Since Vioxx was not an "off-the-shelf" item, a single common purpose could not be assumed. With respect to s 75AD, they submitted that the identification of the defect alleged - particularly in the light of the instruction in s 75AC(2) to have regard to "all relevant circumstances" - required a consideration of the needs of the particular group member. This was so because at least an important aspect of the applicant's case was that Vioxx gave rise to a risk of encountering side effects, rather than that Vioxx was toxic as such. Counsel made the same point with respect to the matter of merchantable quality arising under s 74D, emphasising the need to have regard to "all the other relevant circumstances": see sub-s (3).
36 Counsel for the respondents next submitted that such findings as the court might make in relation to the case of the applicant would not be binding on any of the other group members. Absent a formal splitting of the trial under O 29 of the Federal Court Rules, a finding made at any time before final judgment on the whole case would be interlocutory only and thus not binding. In this respect, counsel drew my attention to the warning against attempting to make interlocutory declarations given by Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 590-591 [128] and repeated by Hayne and Callinan JJ in Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317, 363 [143]. The result of observing that warning, according to counsel, would be that group members other than the applicant could, at some later point but before the final determination of the proceeding, put in contest not only findings made, but also rulings on evidence given, in the course of the applicant's own case. Thus the determination of the applicant's case, and the questions which arose in it, would have been of no utility with respect to the cases of the other group members.
37 In support of their motion, the respondents pointed also to the non-expert evidence which has recently been filed (in the form of witness statements) on behalf of the applicant (by reference to which also they justified the timing of the motion). That evidence relates to the personal circumstances of the applicant himself, and to his general practitioners' decision to prescribe Vioxx for him. The evidence deals with the applicant's personal, occupational and recreational background, with his living habits, with the medical conditions which he encountered over the years, with the joint pain from which he suffered, with the steps he took to alleviate that pain, with the circumstances in which he came to be prescribed Vioxx, with his practitioners' thinking on that subject, with the rate at which, and the period over which, he consumed Vioxx, with a myocardial infarction which he suffered in December 2003, with the treatment he received in relation thereto and his recovery therefrom, and with the effect of that infarction on his life, habits and work. The applicant's practitioners' witness statements deal also with their interactions with drug companies and with the kind of things they tended to take into account when prescribing drugs for the relief of pain.
38 In summary, the essence of the respondents' position was that the applicant's claims, properly understood, involved so many important questions which were not common to the group members as should lead the court to take the view, in the exercise of its discretion, that it was not in the interests of justice for the proceeding to continue under Pt IVA because it would not provide an efficient and effective means of dealing with claims of group members, or because it was inappropriate that those claims be pursued by means of a representative proceeding.
39 It is, of course, well within the contemplation of Part IVA that a proceeding properly commenced, and prosecuted, thereunder will have non-common questions, or questions which relate to group members as individuals. That is recognised by s 33C itself, to which might be added ss 33Q and 33R. However, when the point is reached at which it appears that the proceeding "will not provide an efficient and effective means of dealing with the claims of group members", the discretion under s 33N(1)(c) is enlivened. The comparison which is implicitly required by this provision is between the continuation of the Part IVA proceeding in its existing format and the bringing of separate actions by all group members to prosecute the claims which they presumptively have. In the present case specifically, the comparison is between maintaining the status of the proceeding under Part IVA and converting the proceeding to one which is concerned with the applicant's claim alone, thereby leaving each other group member to bring his or her claim against the respondents or either of them. It must be assumed that every one of them would do so.
40 It will be apparent from the survey of the pleadings set out earlier in these reasons that there remain very substantial areas of factual dispute with respect to questions that go beyond the individual circumstances of the applicant. A very large question in the proceeding will be whether the consumption of rofecoxib, and therefore of Vioxx, causes, or had a tendency to cause, the cardiovascular conditions referred to in the Further Amended Statement of Claim, or increased the risk of those conditions arising. In addition to purely medical, or scientific, questions of this kind, the proceeding also raises the question of the timing and extent of the respondents' appreciation of such risks as there were. It is true that, jurisprudentially, in at least a number of ways the applicant puts his case, the respondents' liability may depend to a large extent on how a reasonable supplier would have reacted to a growing body of scientific and medical evidence as had potential relevance to the applicant himself. But that is not to gainsay the relevance, or the significance, of that evidence as such to all group members. In other words, although the evidence may have a relevance which differs in point of detail between group members, it will, almost by definition, have a relevance.
41 Of the items on the applicant's list of significant issues, Nos 1, 3, 4, 7, 8, 9, 11 and 12 would appear to raise questions the utility of the determination of which will not be confined to the applicant's claims as an individual. Further, the first aspect of each of items 6, 13 and 15 would appear to be in the same category. Of the items on the respondents' list, Nos 8-16 (although described as "not likely to be in issue"), parts (a)-(d) of No 18 and Nos 28-32 (including Annexure A) would appear to be in the same category. These will be significant and weighty matters. The advantages of addressing them in a single proceeding, rather than dealing with them again and again each time an individual group member makes his or her own claim, are too obvious to require emphasis.
42 There is also the matter of discovery. In this proceeding, the bulk of the time taken in the interlocutory stages so far has been occupied by the respondents making discovery of documents. The enormity and expense of that undertaking has been stressed to me on various occasions by the respondents themselves. As I understand it, the vast bulk of the discovery (and therefore of the work which lies behind it) relates to circumstances other than those concerning only the applicant and his treating practitioners. If this proceeding were not to continue as a representative one, that discovery would have to be given again and again to every other applicant who chose to commence proceedings for damages against the respondents. The respondents' answer to this consideration is to suggest that their experience in giving discovery to the applicant in the present case would inform their approach in other cases, and lead to the saving of time and expense. Undoubtedly that would be correct so far as it goes, but the response fails to take account of the circumstance that, in this proceeding, discovery has been given by reference, originally, to a protocol proposed by the respondents and accepted by the applicant and, since late 2007, by reference to categories proposed by the applicant and accepted by the court. Since then, the court has held the applicant to his categories. That approach would not be available if all the group members came before the court in separate proceedings. Each would be entitled to agitate for a regime of discovery that appeared to be productive in the eyes of his or her own legal practitioners. Such an approach would, in my view, be neither efficient nor effective.
43 As mentioned earlier, counsel for the respondents emphasised the limited nature of the non-expert evidence filed on behalf of the applicant. It is true that that evidence is concerned very substantially with the applicant himself and with his practitioners. There are, however, two things to be said about that. First, the present application is to be determined by reference to the questions that will arise at trial as disclosed by the pleadings. The filing of evidence - in effect a forewarning designed to promote the efficient conduct of the trial - is not to be regarded as limiting in this respect. Secondly, the applicant has not yet filed his expert evidence. In the lexicon of the parties in this proceeding, "expert" evidence is not limited to opinion evidence. Without knowing what the applicant's expert evidence will be, I am in no position to decide the respondents' motion as though all of the applicant's evidence has been filed. I must assume that the applicant will attempt to make good all the allegations in his Further Amended Statement of Claim.
44 For the purposes of deciding the present motion, I am prepared to accept the respondents' thesis that, structurally, the negligence part of the case will involve a degree of complexity in the resolution of the applicant's individual claims that is not necessarily present in any product liability action as such. The interposition of medical practitioners, pharmacists and others between the first respondent and the applicant and the apparent circumstance that Vioxx was a product made and supplied as indented, and registered on the ARTG after having been through a process of approval will, for example, provide that complexity. However, even those aspects of the case are not without factual dimensions that, once addressed in the applicant's case, are likely to present common questions that, once answered, will have been answered for all group members. As alleged by the applicant, the first respondent's dealings with practitioners in relation to the flow of information about Vioxx was systematic, rather than random. The very fact of ARTG registration, and the consequences of it with respect to the first respondent's duty of care to consumers generally, are matters which are not confined to the applicant's case. I mention these aspects as examples only. The general proposition which the submissions made on behalf of the respondents have not gainsaid is that, even with respect to the content of such duty of care which the respondents owed to the applicant, there are important matters of fact which, once decided, will conveniently carry forward into the resolution of the cases of the other group members.
45 The case for granting the respondents' motion is, if anything, weaker yet to the extent that it relies upon the applicant's claims under the Trade Practices Act. Whether the first respondent breached the norm of conduct stated in s 52 is, it appears to me as presently advised, a question the resolution of which depends to no extent upon the individual circumstances of the applicant. It is true that the applicant will be entitled to damages under s 82(1) only if he suffered loss or damage by the first respondent's conduct, but the conduct itself, to the extent that it occurred, at least prima facie has a freestanding presence apart from the applicant. Counsel for the respondents accepted that it would not be necessary for the applicant to show that a misleading or deceptive representation was made to the applicant, and that it would be sufficient if, for example, such a representation was made to an intermediary and the applicant suffered loss or damage as a result. In the applicant's s 52 case, there is manifestly a deal to be determined that will have potential application to other group members.
46 With respect to the case under s 74B, the applicant alleges that each group member acquired Vioxx "for the purpose of consumption as a safe non-steroidal anti-inflammatory drug". That allegation is denied. It is true that purpose, as contemplated by s 74B and as alleged by the applicant, is an individual thing. However, s 74B will be contravened - other requirements thereof being satisfied - if Vioxx was not "reasonably fit" for the purpose alleged by the applicant. That is to say, it will be a common question whether Vioxx was reasonably fit for consumption as a safe non-steroidal anti-inflammatory drug. Whether any particular group member had that purpose, and whether he or she made it known to the first respondent are, of course, matters to be determined individually. But that circumstance does not deny the utility of trying the fitness point once only in the applicant's proceeding.
47 The question arising under s 74D in the present case - whether Vioxx was of merchantable quality - will require consideration of whether the tablets were "as fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to" various matters, including, as the respondents point out, "all the other relevant circumstances". Here the issue will centre not on the purpose of a particular consumer, but on the purpose for which Vioxx is "commonly bought". The utility of maintaining the present proceeding as a representative one to the extent that it relies on s 74D is, in my view, self-evident.
48 Likewise, a significant question arising under s 75AD will be whether the Vioxx tablets consumed by the applicant had a "defect". Vioxx will be found to have had a defect if its "safety [was] not such as persons generally are entitled to expect": see s 75AC(1). The statutory norm here is concerned with a characteristic of the goods themselves, rather than with the effect of consumption upon a particular person. Although, again, s 75AC(2) requires reference to be had to "all relevant circumstances", the examples given in pars (a)-(f) are concerned with the general rather than the particular.
49 The respondents' argument based upon Graham Barclay Oysters and Dovuro seems to be such as would have application to any representative proceeding under Part IVA of the Federal Court Act. The argument might, if sound, stand in support of a proposition that Part IVA should not be in the Act at all. However, I do not consider the argument to be sound, at least in the categorical way it was put here. It is true that, until final orders are made in any case, nothing said or done, and no rulings given by the court can finally affect the rights of the parties. A declaration, by definition, does finally establish the rights of the parties affected thereby. But there is no suggestion by the applicant that the disposition of his claim under Part IVA must be accompanied by a declaration made before the stage is reached at which the making of final orders is appropriate.
50 What sets a Part IVA proceeding apart from other proceedings with multiple parties is that the named party - the applicant - represents others who are not on the record. Steps taken by the applicant in the conduct of the case are binding on the group members because he acts as their representative. Likewise, findings and rulings made in the course of the applicant's case are binding on the group members not because they have the legal status of final orders but because the group members are represented by the applicant. There is, of course, a point at which the individual claims of group members may need to be considered. Depending on the measure of success which the applicant achieves at trial, that point may never be reached. However, if it is, I accept that there is likely to be a problematic interface between the issues which have already been determined and the issues which will relate to each group member's separate claim. The existence of such an interface, in my view, is a necessary complexity in the conduct of any proceeding of a kind for which Part IVA of the Act provides, and is contemplated by s 33Q. It is not such as should persuade the court that it is not in the interests of justice for the present proceeding to remain as a representative one.
51 For the reasons stated above, I dismissed the respondents' motion under s 33N. In summary, I was not satisfied that it was in the interests of justice to order that the present proceeding no longer continue under Part IVA. I was persuaded neither that the proceeding, in its existing format, will not provide an efficient and effective means of dealing with the claims of group members nor that it was otherwise inappropriate that those claims be pursued by means of a representative proceeding.