Tester v Trueman [2025] FCA 445

1. The applicants in these proceedings, Ms Tester and Ms Brash, are group members in the class action brought against Ethicon Sarl and others, being the manufacturers and distributors of devices used for the treatment of pelvic organ prolapse and stress urinary incontinence.
2. As is well known, the Ethicon class action has now resolved, and listed before me today were a number of matters relevant to distribution of a settlement fund to group members in that proceeding. Following the conclusion of the process of distribution, each "claim" (as that term is used in s 33C of the Federal Court of Australia Act 1976 (Cth) (FCA Act)) of the applicants and group members against the respondents to the Ethicon class action will have been quelled by reason of the operation of ss 33V and 33ZF of the FCA Act.
3. The reason for this judgment is that, by way of interlocutory application, Ms Tester and Ms Brash seek orders that a temporary stay of individual proceedings against other respondents that they filed now be lifted and that they be granted leave to file an amended statement of claim.
4. The history to a significant number of individual proceedings being commenced in this Court in relation to personal injury arising from the use of pelvic implant products is set out in both West v Rane [2019] FCA 2195 and West v Rane (No 2) [2020] FCA 616. In those judgments, I was critical about the way in which a significant number of unnecessary ordinary inter partes proceedings were commenced (notwithstanding the existence of common issues), and I dealt with the costs consequences of what had occurred. It is unnecessary to repeat those matters for present purposes, save for noting that I dealt with submissions made on behalf of counsel appearing for solicitors who were faced with the prospect of an adverse personal costs order.
5. Needless to say, the submissions made by counsel for the solicitors were based on the evidence adduced before me at that hearing. Reference was made in West v Rane (No 2) (at [69]) to that evidence and those submissions, including a finding that senior and junior counsel who were retained in the Ethicon class action had been briefed for the purposes of providing advice concerning what I found was a misdirected strategy.
6. Counsel appearing on behalf of Ms Tester and Ms Brash, Mr Naylor, was briefed in the Ethicon class action, and he had appeared at an earlier stage of the proceedings discussed in West v Rane before another judge of the Court. Mr Naylor did not have an opportunity to be heard on that application, and he has informed me (and I, of course, accept) that the material before me was inaccurate. I am advised that to the extent that someone reading the judgment would form the impression that he was involved in providing advice concerning the criticised strategy, such a conclusion is contrary to the facts. This error should be corrected publicly and expressly out of fairness to Mr Naylor (whose assistance on this application, I appreciate).

1. Turning to the application itself, there is no reason why the stay ought not be lifted, and the respondent has sensibly not opposed this course. I have decided that the most effective course is to grant leave to file an amended statement of claim, which will address some issues already raised by the respondents to the current draft pleading.
2. Of course, although the claim against the respondents to the Ethicon class action has now been resolved by the exercise of judicial power, it is free to the former group members to seek to agitate other causes of action they have against persons not subject to the settlement, and that is what they wish to do by the progression of these proceedings in the Court following the lifting of the temporary stay. There is nothing unorthodox about this and, indeed, if the Ethicon class action had not settled, all other group members, following a de-classing, would have been free to join additional respondents to individual claims.
3. I am informed that, at the moment, individual proceedings by former group members involve two proceedings in the Federal Court of Australia (being the current proceedings); five proceedings in the Supreme Court of New South Wales; and three proceedings in the Supreme Court of Western Australia. It is not immediately apparent to me why it would not be efficient for all proceedings to be listed in the one court, but no application has been made to cross-vest the other proceedings and I will leave it to the good sense of those acting to consider whether this course should be adopted.
4. For my part, in relation to the two proceedings in the Federal Court, they should progress and be resolved in accordance with the overarching purpose. Accordingly, I have indicated a joinder of issue should occur as soon as practicable and then I will consider the appropriate case management of the proceedings. This requires some close thought as the proceeding commenced by Ms Brash appears to have significant connections with Western Australia, and but one of all the relevant witnesses appear to be located in that State. By way of contrast, the proceeding commenced by Ms Tester has connexions with both Queensland and New South Wales.
5. Both proceedings will involve the application of surrogate federal law and appear to involve the application of the Civil Liability Act 2002 (WA) in the case of Brash and the Civil Liability Act 2003 (Qld) in the case of Tester. I will reserve for a further case management hearing whether the best course is for a recommendation to be made that both proceedings be allocated to the same docket judge and for them to be heard successively with, perhaps, the same judge sitting in both Western Australia and/or Queensland to take the necessary evidence.
6. Additionally, at the case management hearing, I have indicated to the parties that rather than undertaking the cumbrous and expensive process of the service of medical reports by both the applicant and the respondent, a more cost-effective and efficient mode may be for a reference to be ordered for inquiry and report in relation to various identified questions, which otherwise would have been the subject of expert medical evidence. I form no final views about that at present, but that will be a matter discussed at the next case management hearing, together with any other issues relevant to the expeditious progression of these matters towards a hearing.
7. There should be no order as to costs in relation to the application for the lifting of the stay or the other orders made today.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.