FEDERAL COURT OF AUSTRALIA

Philipsen v American Medical Systems LLC (No 2) [2018] FCA 1580

File number:

NSD 35 of 2018

Judge:

KATZMANN J

Date of judgment:

19 October 2018

Catchwords:

PRACTICE AND PROCEDURE representative proceeding — interlocutory application by respondent for order under s 33K of the Federal Court of Australia Act 1976 (Cth) that amendments made to description of group take effect from date of amendmentwhere description of group appeared in statement of claim and not originating application whether applicant representing one of two sub-groups could represent members of both sub-groups source of power to make order — scope of s 33K — effect of amendments to group description where amended statement of claim also named member of second sub-group representative applicant of that sub-group —whether claims made in statement of claim on behalf of both sub-groups were in respect of, or arose out of, the same, similar or related circumstances under s 33C(1)(b) whether claims gave rise to a substantial common issue of law or fact under s 33C(1)(c) of the Act — need for certainty in definition of group members — whether order sought in interlocutory application should be granted

Legislation:

Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 33C, 33H, 33K, 33Q, 33R, 33ZE, 33ZF, 33ZG

Federal Court Rules 2011 (Cth) rr 1.32, 16.51, 16.54

Cases cited:

Dillon v RBS Group (Australia) Pty Ltd (2017) 252 FCR 150

Ethicon Sàrl v Gill [2018] FCAFC 137

Gill v Ethicon SÁRL [2018] FCA 470

Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212

Wong v Silkfield Pty Limited (1999) 199 CLR 255

Date of hearing:

18 October 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Category:

Catchwords

Number of paragraphs:

50

Counsel for the Applicants:

Mr DE Graham SC with Ms Hillman

Solicitor for the Applicants:

Shine Lawyers

Counsel for the Respondent:

Ms KC Morgan SC with Mr Wong

Solicitor for the Respondent:

Baker McKenzie

ORDERS

NSD 35 of 2018

BETWEEN:

JODIE PHILIPSEN

First Applicant

JANICE SEYMOUR

Second Applicant

AND:

AMERICAN MEDICAL SYSTEMS LLC

Respondent

JUDGE:

KATZMANN J

DATE OF ORDER:

19 OCTOBER 2018

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the respondent on 6 September 2018 be dismissed.

THE COURT NOTES THAT:

2.    The respondent consents to the applicants amending the Amended Statement of Claim to delete from the chapeau to paragraph 1(b) in the description of the group members the words “at any time, including after the commencement of these proceedings but before the date of any judgment, or approval of any settlement of the proceedings” and insert in their place the words “as at 31 July 2018”.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Jodie Philipsen and Janice Seymour both claim they have suffered injuries after and as a result of transvaginal implantation with medical devices manufactured by American Medical Systems LLC (AMS), for the purpose, in Ms Philipsen’s case, of treating pelvic organ prolapse and, in Ms Seymour’s case, stress urinary incontinence. The claim is brought on behalf of others (group members) who had surgery of a like nature in which the same or other devices also manufactured by AMS and made wholly or partly from polypropylene mesh were implanted via the same route. The group consists of two sub-groups, referred to in the pleading as the “Mesh Sub-Group” and the “Sling Sub-Group”. Several causes of action are pleaded under the Trade Practices Act 1974 (Cth) and the Competition and Consumer Act 2010 (Cth). In addition or in the alternative the applicants have included a count of negligence. The proceeding is governed by the terms of Pt IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act), which allows for the institution of such a proceeding if seven or more persons have claims against the same person and the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances and give rise to a substantial common issue of law or fact.

2    In Dillon v RBS Group (Australia) Pty Ltd (2017) 252 FCR 150 at [1] Lee J lamented that, although Part IVA has been in operation for 25 years, procedural arguments recur and often they are the same arguments in different guises”. Regrettably, the appetite for disputation over procedural matters of this nature continues.

3    This proceeding began on 16 January 2018 when an originating application and statement of claim were filed. At that time Ms Philipsen was the sole applicant. Ms Seymour was added as an applicant on 31 July 2018 when an amended originating application and statement of claim were filed. Leave was not sought for this purpose and leave was unnecessary since an applicant may amend a statement of claim once without leave before the close of pleadings (Federal Court Rules 2011 (Cth) r 16.51(1)) and no defence had been filed. Indeed, a defence is yet to be filed. At the same time, additional amendments were made both to the originating application and to the statement of claim. Apart from the deletion of two causes of action, for the most part the amendments are not significant. Ms Seymour was a group member within the definition of the group in the original statement of claim. The only substantive change to the group definition was to take her out of the group and add her as an applicant representing the members of the Sling Sub-Group.

4    On 6 September 2018, AMS filed an interlocutory application seeking the following orders:

1    An order pursuant to section 33K of the Federal Court of Australia Act 1976 (Cth) that the amendments in the Amended Originating Application and Amended Statement of Claim, which altered the description of group members, take effect from 31 July 2018.

2    A declaration that section 33ZE(1) of the Federal Court of Australia Act 1976 (Cth) applies to the group members added pursuant to the amendment identified in order 1 above from 31 July 2018.

5    The interlocutory application was supported by an affidavit sworn the same date by David Cameron McCredie, the solicitor on the record for AMS, to which were exhibited filed copies of the Amended Originating Application and the Amended Statement of Claim, unfiled copies of those documents with the amendments shown in mark-up, and a copy of the Full Court’s judgment in Ethicon Sàrl v Gill [2018] FCAFC 137.

6    Section 33K gives the Court the power at any stage of a representative proceeding to grant leave to a representative party to amend the application commencing the proceeding so as to alter the group description in a particular way and, where it does so, to also make any other orders it thinks just. Section 33ZE(1) provides that, upon the commencement of a representative proceeding the running of any limitation period that applies to the claim of a group member to which the proceeding relates is suspended.

7    AMS argued, in effect, that, until Ms Seymour became a representative applicant she should not have the benefit of s 33ZE(1) and that, although the group included women who were implanted with an AMS sling device, neither should they. The argument in support of this rather extraordinary proposition was developed in the written submissions in this way:

14    Ms Philipsen could not (and did not) bring a claim on behalf of Ms Seymour, or on behalf of women implanted with a Sling Implant. As outlined above, Ms Philipsen did not suffer from stress urinary incontinence, was not implanted with a Sling Implant, and was not (and is not alleged to be) a Sling Sub-Group Member. As made clear in the AOA, it is Ms Seymour who brings claims on behalf of Sling Sub-Group Members.

15    It follows that the filing of the AOA and the ASOC, and the addition of Ms Seymour as the second representative applicant effectively changed the group definition by adding the claims of Ms Seymour and the Sling Sub-Group Members to the proceedings. Accordingly, as the Full Court indicated, “any change to a group definition in an originating application required leave to be granted pursuant to the power contained in that section [section 33K]”.

16    In a similar manner to the Full Court’s decision, this Court’s orders on 18 June 2018 for the applicant to file and serve an ASOC by 30 July 2018 necessarily amounted to the exercise by the Court of the power under section 33K to permit an amendment (in the AOA, and to the ASOC) to the group definition. It follows, consistent with the Full Court’s decision, that the amendments should take effect from the date of amendment.

8    For the same reasons, AMS argued, the Court should make the declaration sought. The applicants agreed to a modified form of order and consequential declaration. At the hearing, however, AMS did not press the claim for the declaration and nothing more need be said about it.

9    I accept that the Court has the power to make an order as to the date upon which an amendment to the group definition takes effect. I do not accept, however, that where, as here, the group definition appears in the statement of claim rather than in the originating application, the source of the power is s 33K.

10    Section 33K reads:

33K Causes of action accruing after commencement of representative proceeding

(1)    The Court may at any stage of a representative proceeding, on application made by the representative party, give leave to amend the application commencing the representative proceeding so as to alter the description of the group.

(2)    The description of the group may be altered so as to include a person:

(a)    whose cause of action accrued after the commencement of the representative proceeding but before such date as the Court fixes when giving leave; and

(b)    who would have been included in the group, or, with the consent of the person would have been included in the group, if the cause of action had accrued before the commencement of the proceeding.

(3)    The date mentioned in paragraph (2)(a) may be the date on which leave is given or another date before or after that date.

(4)    Where the Court gives leave under subsection (1), it may also make any other orders it thinks just, including an order relating to the giving of notice to persons who, as a result of the amendment, will be included in the group and the date before which such persons may opt out of the proceeding.

11    Here, however, the Court did not give leave to the representative party (Ms Philipsen) to amend the application commencing the proceeding so as to alter the description of the group.

12    The description of the group appeared in the statement of claim, not the originating application. As I explained in Gill v Ethicon SÁRL [2018] FCA 470 at [21], s 33K is inapplicable where, as here, the group is described in the statement of claim but not in the originating application. An application is not a statement of claim. Section 33H draws a distinction between an application commencing a representative proceeding (the originating application) and a document filed in support of such an application (which would include a statement of claim or an affidavit). In Wong v Silkfield Pty Limited (1999) 199 CLR 255 at [11] the High Court observed that, “[l]ike other provisions conferring jurisdiction upon or granting powers to a court, Pt IVA is not to be read by making implications or imposing limitations not found in the words used” — “even if the evident purpose of the statute is to displace generally understood procedures”.

13    Furthermore, s 33K only comes into operation upon the application of a representative applicant for leave to amend the originating application. Both the originating application and the statement of claim were amended without leave. I merely made an order at the behest of Ms Philipsen’s counsel that they be filed by a particular date. No amount of rhetoric can transform that order into an order that leave be given to amend the application to alter the description of the group. For completion I should note that naming Ms Seymour as an applicant did not alter the group description. AMS was represented at the case management hearing by senior and junior counsel when the relevant order was made. I indicated at the time that leave was unnecessary. No-one from either side suggested that I was mistaken. No-one submitted that, since the group description was being changed, an application for leave was required.

14    In these circumstances the power to make an ancillary order, conferred by s 33K(4), is not enlivened.

15    Nevertheless, s 33ZF gives the Court a general power in any representative proceeding to make an order of its own motion or on the application of a party or group member to make any order it thinks appropriate or necessary to ensure that justice is done in the proceeding. A similar power is given by r 1.32 of the Rules, which entitles the Court to make any order it considers appropriate in the interests of justice. Section 33ZG provides that, except as otherwise provided by Part IVA, nothing in that Part affects the Court’s powers under other provisions.

16    The question of power is one thing. Whether and, if so, how it should be exercised, however, is another.

17    Following the exchange of submissions it was clear that the parties were in agreement that the amendments made to the description of the group should apply from the date of the filing of the Amended Statement of Claim. The dispute turned on the central point in AMS’s written submissions that Ms Philipsen could not and did not bring a claim on behalf of Ms Seymour or on behalf of other women implanted with a sling device. If this proposition were right, then the suspension of any limitation period would only operate from the time Ms Seymour was joined as an applicant and so, too, the claims of all the Sling Sub-Group members.

18    That proposition is wrong on both counts.

19    First, Ms Philipsen did bring such a claim in the statement of claim filed and served with the originating application. The original description of the group appeared in paragraph 1(b) of the statement of claim. It consisted of all persons other than Ms Philipsen who had suffered certain complications after they had undergone surgery in Australia to implant any one of more of a number of medical devices manufactured by AMS, supplied to their treating doctors or hospitals. They were women other than Ms Philipsen who (had):

(i)    had surgery performed on them in Australia to implant one or more of the following Implants (Implants):

(A)    mesh implants (Mesh Implants), consisting of:

(i)    the Perigee Transobturator Anterior Prolapse Repair System with:

i.    IntePro™ (the Perigee InteProImplant) which was made of non-absorbable polypropylene; or

ii.    IntePro Lite (the Perigee IntePro Lite Implant) which was made of light weight non-absorbable polypropylene;

(ii)    the Apogee Vaginal Vault and Posterior Prolapse Repair System with:

i.    IntePro (the Apogee IntePro Implant) which was made of non-absorbable polypropylene; or

ii.    InteProLite (the Apogee InteProLite Implant) which was made of non-absorbable polypropylene;

(iii)    the Elevate Anterior and Apical Prolapse Repair System (the Elevate Anterior and Apical Implant) which was made of lntePro Lite, non-absorbable polypropylene mesh;

(iv)    the Elevate Apical and Posterior Prolapse Repair System (the Elevate Apical and Posterior Implant) which was made of IntePro Lite, non-absorbable polypropylene mesh;

Group Members who had surgery to implant one or more of the Mesh Implants being the Mesh Sub-Group Members; and

(B)    sling implants (Sling Implants), consisting of:

(i)    the SPARC Sling System (Sparc Implant) which was made with AMS Polypropylene sling mesh;

(ii)    the MONARC Subfascial Hammock System (Monarc Implant) which was made with AMS Polypropylene sling mesh;

(iii)    the MiniArc Single-Incision Sling System (MiniArc Single Incision Implant) which was made with AMS Polypropylene sling mesh;

(iv)    the MiniArc Precise Single-Incision Sling System (MiniArc Precise Implant) which was made with AMS Polypropylene sling mesh;

(v)    the RetroArc Retropubic Sling System (RetroArc Implant) which was made with polypropylene mesh;

Group Members who had surgery to implant one or more of the Sling Implants being the Sling Sub-Group Members;

(ii)    were supplied with one or more of the Implants by their treating hospital or doctor for the Mesh Purpose, and in addition or alternatively the Sling Purpose (as defined in paragraphs 19 and 69 below); and

(iii)    have suffered from one or more of:

(A).    the Mesh Complications and/or Mesh Removal Complications pleaded in paragraphs 24 and 25 below in relation to the Mesh Implants, and in addition, or alternatively;

(B)    the Sling Complications and/or Sling Removal Complications pleaded in paragraphs 74 and 75 below in relation to the Sling Implants.

20    This description expressly covered women who had been implanted with one of the nominated AMS sling devices. If the facts alleged are proved, Ms Seymour was at that time one of them, for she alleges in the Amended Statement of Claim that she had surgery performed on her in Australia to implant a Monarc implant that had been supplied by her treating doctor and that she suffered complications of the kind described in the pleading. As the applicants submitted, she was a person who would have been included in the hypothetical list of persons identified at the outset of the litigation as persons captured in the group. The definition of the group was not augmented by the filing of the Amended Originating Application or the Amended Statement of Claim to permit her to join the group. Until she was named as an applicant she had been a member. So, too, were any other women who met the definition in paragraph 1(b) of the statement of claim.

21    Second, Ms Philipsen could bring such a claim, despite the fact that the device she received was not a sling used to treat stress urinary incontinence. Part IVA envisages that, provided certain conditions are satisfied, a person may bring a claim on behalf of others who have different claims. As the Full Court put it in Ethicon at [50], “the regime expressly contemplates and provides for the individuality of claims within a group proceeding”. See, too, Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212 at [104] (Gordon J) dealing with the equivalent regime in Pt 4A of the Supreme Court Act 1986 (Vic).

22    AMS’s arguments are reminiscent of those so emphatically rejected in Dillon. In that case the applicants contended that their claims and those of the described group members arose in similar or related circumstances in that they were all clients of the one financial services company (Navra) and that they all invested (in a specified time period) in one or more Unlisted Rolling Instalment Warrants or Managed Fund Instalment Warrants created or issued by the three respondents (collectively referred to as RBS), where the underlying reference assets consisted directly or indirectly of shares or units in one of a number of Navra managed funds. They also contended that the Managed Fund Instalment Warrants were acquired on Navra’s advice. The respondents argued, however, that the applicants who had not acquired one of the latter warrants could not validly represent those who had and that only the persons who had acquired those warrants were group members.

23    Lee J described both these arguments (at [41] and [46]) as “misconceived”. For the reasons given by his Honour in that case, the propositions advanced by AMS in this case are equally misconceived.

24    The lead provision is s 33C of the FCA Act, which deals with the commencement of a representative proceeding. It reads:

(1)    Subject to this Part, where:

(a)    7 or more persons have claims against the same person; and

(b)    the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and

(c)    the claims of all those persons give rise to a substantial common issue of law or fact;

a proceeding may be commenced by one or more of those persons as representing some or all of them.

(2)    A representative proceeding may be commenced:

(a)    whether or not the relief sought:

(i)    is, or includes, equitable relief; or

(ii)    consists of, or includes, damages; or

(iii)    includes claims for damages that would require individual assessment; or

(iv)    is the same for each person represented; and

(b)    whether or not the proceeding:

(i)    is concerned with separate contracts or transactions between the respondent in the proceeding and individual group members; or

(ii)    involves separate acts or omissions of the respondent done or omitted to be done in relation to individual group members.

25    The only other condition is that set by s 33H. Here, a description complying with the requirement in s 33H was provided in paragraph 1 of the statement of claim. That much was not in dispute.

26    In Dillon, Lee J observed at [44]:

The “claims” of all persons referred to in this “gateway” provision are only required to be in respect of, or arise out of, similar or related circumstances and give rise to one substantial common issue of law or fact. It necessarily follows that the claims of the applicants (who represent the group) and group members (represented persons) can be quite different.

27    It is clear from the terms of s 33C(1) that, provided the conditions set out in paragraphs (a)–(c) are made out, one or more persons can commence a proceeding representing some or all of the members of the group no matter how different their claims may be. As Gordon J observed in Timbercorp at [107], these conditions are “not only the minimum requirements but also the outer limit of the connection between the group members”.

28    The point is reinforced by s 33Q which provides that, where it appears that the determination of the questions common to all group members will not finally determine the claims of all group members, the Court may give directions in relation to the determination of the remaining questions and for that purpose may establish sub-groups and appoint a representative party on behalf of the sub-group members. The important point here is that the section permits but does not require the Court to give directions establishing a sub-group of group members and to appoint a person to be a representative party on their behalf: see Timbercorp at [109], [134] (Gordon J). Furthermore, s 33R allows the Court to permit an individual group member to appear in the proceeding for the purpose of determining an issue that relates only to the claims of that group member.

29    As Lee J might have put it, it is as plain as a pikestaff” (see Dillon at [35]) that Ms Philipsen satisfied the conditions in s 33C at the time the proceeding was commenced. While her claims are not the same as the claims made by Ms Seymour or the members of the Sling Sub-Group, on the assumption that the facts as alleged are provable, they arise out of similar or related circumstances and they give rise to at least one substantial common issue of law and/or fact.

30    Both the Mesh Implants and the Sling Implants are alleged to have been manufactured by AMS and marketed and promoted in Australia. Both are alleged to have been supplied to a related entity, American Medical Systems Australia Pty Limited in turn to be supplied to hospitals and medical practitioners for resupply to patients including group members. They are all made from or with non-absorbable polypropylene. The applicants’ case is that implantation of these devices can cause the same or similar complications. It is also the applicants’ case, as I understand it, that those complications are due, at least in part, to the physical, mechanical, chemical, and surface characteristics of the mesh and the fact that they are implanted through the vagina. Although the Mesh Implants were devices for the treatment of pelvic organ prolapse and the Sling Implants were devices for the treatment of stress urinary incontinence, these circumstances are at least related, if not similar.

31    I reject AMS’s contention that Ms Philipsen had no “substantial” issues in common with members of the Sling Sub-Group because of the structure of the applicants’ pleading and/or because the respective devices were acquired for different purposes. “Substantial” in this context merely means “real or of substance”: Wong v Silkfield at [28].

32    Although no defence has yet been filed, I do not anticipate the proceeding will be undefended.

33    On the face of the applicants’ pleading there are likely to be a number of issues in common. It is sufficient for present purposes to note that one of the applicants’ allegations is that AMS did not undertake adequate clinical or other evaluation of the risks associated with the use of both the Mesh and the Sling Implants. They also allege that AMS gave inadequate warnings of those risks. Moreover, they allege that AMS failed to conduct adequate evaluation of the safety and effectiveness of both the Mesh and the Sling Implants after they were released on the Australian market. These allegations are likely to raise issues of substance about the systems employed by AMS to produce and supply medical devices intended for permanent implantation in the female pelvis and the adequacy of the steps they took to comply with regulatory requirements and guidelines. Another factual issue of substance raised by the pleading is likely to be whether AMS carried on business in Australia.

34    I also expect, and as senior counsel for AMS all but conceded, there will be substantial common issues of law, since the causes of action raised on behalf of both sub-groups are identical.

35    It does not matter one iota that Ms Philipsen was not implanted with the same AMS medical device as Ms Seymour or members of the Sling Sub-Group or that her implant was designed to treat a different medical condition from the condition the slings were designed to treat.

36    But the reason I do not intend to grant AMS the relief it seeks is only in part due to its misconception about the scope of the original pleading and the capacity of Ms Philipsen to represent women who were implanted with the sling devices. The other reason is that it is unnecessary.

37    Rule 16.54 of the Federal Court Rules provides that an amendment of a pleading that is made under r 16.51 takes effect on the date the amendment is made. No application was made to vary the operation of the rule.

38    Lest there be any doubt about it I should make it clear that, because Ms Seymour was a group member at the time the proceeding commenced, as were other women who then fell within the original group definition, her and their positions are unaffected by the amendment. Her new status as a representative of the Sling Sub-Group does not mean that she is or should be deprived of the benefit of s 33ZE(1). For her and those other women who were captured by the original group definition, the running of any limitation period applying to their claims was suspended in January when the originating application and statement of claim were filed. Section 33ZE(2) provides that the limitation period does not begin to run again unless either the member opts out of the proceeding under s 33J or the proceeding and any appeals arising out of it are determined without finally disposing of the group member’s claim. It does not also provide that the limitation period begins to run again if a group member becomes a sub-group representative party, whether pursuant to a direction made under s 33Q or otherwise.

39    Consequently, any amendment to the group description only affects those women who, in the period between 16 January and 30 July, suffered complications from surgery in Australia in which they were implanted with one of the nominated AMS devices.

40    That said, the description of the group in the Amended Statement of Claim cannot stand.

41    As amended and with the amendments tracked, the group is described in paragraph 1(b) of the Amended Statement of Claim as persons other than Ms Philipsen:

who at any time, including after the commencement of these proceedings but before the date of any judgment or approval of any settlement of the proceedings:

(i)    had surgery performed on them in Australia to implant one or more of the following Implants (Implants):

(A)    mesh implants (Mesh Implants), consisting of:

(i)    the implants contained in the Perigee Transobturator Anterior Prolapse Repair System with being an:

i.    IntePro™ (the Perigee lntePro™ Implant) which was made of non-absorbable polypropylene; or

ii.    InteProLite (the Perigee lnteProLite Implant) which was made of lighter weight non-absorbable polypropylene;

(ii)    the implants contained in the Apogee Vaginal Vault and Posterior Prolapse Repair System with being an:

i.    IntePro(the Apogee IntePro™ Implant) which was made of non-absorbable polypropylene; or

ii.    InteProLite (the Apogee InteProLite Implant) which was made of a lighter weight non-absorbable polypropylene;

(iii)    the implants contained in the Elevate Anterior and Apical Prolapse Repair System (the Elevate Anterior and Apical Implant) which was were made of lnteProLite, non-absorbable polypropylene mesh;

(iv)    the implants contained in the Elevate Apical and Posterior Prolapse Repair System (the Elevate Apical and Posterior Implant) which was were made of InteProLite, non-absorbable polypropylene mesh;

(Group Members who had surgery to implant one or more of the Mesh Implants being the Mesh Sub-Group Members); and/or

(B)    sling implants (Sling Implants), consisting of:

(i)    the implants contained in the SPARC Sling System (Sparc Implant) which was were made with AMS Polypropylene sling mesh;

(ii)    the implants contained in the MONARC Subfascial Hammock System (Monarc Implant) which was were made with AMS Polypropylene sling mesh;

(iii)    the implants contained in the MiniArc Single-Incision Sling System (MiniArc Single Incision Implant) which was were made with AMS Polypropylene sling mesh;

(iv)    the implants contained in the MiniArc Precise Single-Incision Sling System (MiniArc Precise Implant) which was were made with AMS Polypropylene sling mesh;

(v)    the implants contained in the RetroArc Retropubic Sling System (RetroArc Implant) which was were made with polypropylene mesh;

(Group Members who had surgery to implant one or more of the Sling Implants being the Sling Sub-Group Members); and

(ii)    were supplied with one or more of the Implants by their treating hospital or doctor for the Mesh Purpose, and in addition or alternatively the Sling Purpose (as defined in paragraphs 19 and 69 below) have suffered from one of more of the Implant Complications and/or Implant Removal Complications pleaded in paragraphs 9 and 10 below; and

(iii)    have suffered from one or more of:

(A).    the Mesh Complications and/or Mesh Removal Complications pleaded in paragraphs 24 and 25 below in relation to the Mesh Implants, and in addition, or alternatively;

(B)    the Sling Complications and/or Sling Removal Complications pleaded in paragraphs 74 and 75 below in relation to the Sling Implants.

42    The problem with the description of the group in the Amended Statement of Claim is that it includes women who will have surgery to implant one of the relevant devices and suffer one or more of the pleaded complications at some unknown time in the future but before some indeterminate date when judgment is pronounced or settlement is approved. These are women whose identity is presently unknown and could not be known.

43    The Full Court made it abundantly clear in Ethicon at [24]–[27] and also at [36]–[39] that such a description was untenable. At [25] the Full Court cited with approval the following remarks of Lee J in Dillon at [50]:

It is important to bear in mind [a] fundamental concept which, although simple, is sometimes obscured: a group comprises persons and not the claims of persons. The best way of avoiding confusion is by imagining that a list of group members is always a list of names but, when actual names are not used, the “list” of persons is defined by a criterion (or more usually criteria) specified at the time the group is described. The identity of all persons is ascertainable and the characteristics describing membership, subject to leave under s 33K, will necessarily all be in existence immediately prior to the commencement of the proceeding on their behalf. The claims which are the subject of the proceeding are the entirety of the claim of each of those persons, which each existed separately from the proceeding.

(Original emphasis.)

44    The Full Court went on to observe that this certainty had been present when the Ethicon proceeding had commenced because it was brought on behalf of “identifiable women, who at the time of commencement, met two criteria”: (a) women who had had surgery in Australia and (b) women whose surgery was implantation of one of three specified implants. The definition was certain, the Full Court added, because “if those women were readily identifiable, it would have been possible to prepare a list of names” (see Ethicon at [26]). The same could be said of the present proceeding. Since the filing of the Amended Statement of Claim, however, it could not be said of the proceeding as presently constituted.

45    The Full Court also observed in Ethicon at [37] that “it is foreign to the statutory scheme for group definitions to operate in an ambulatory fashion which allows the composition of the class to change automatically by the happening of an event post commencement”.

46    There is no apparent reason why the group definition could not be amended at a later date to incorporate women who do receive such surgery and do suffer such complications.

47    During oral argument I suggested that the applicants could cure the problem by deleting the phrase in the chapeau to paragraph 1(b) “at any time, including after the commencement of these proceedings but before the date of any judgment, or approval of any settlement of the proceedings” and substituting the words “as at 31 July 2018.

48    This morning I was informed that AMS consented to such an amendment.

49    In all the circumstances, the interlocutory application should be dismissed.

50    I will hear from the parties on costs.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Associate:

Dated:    19 October 2018