Federal Court of Australia

Eaton v Depuy International Ltd (No 2) [2026] FCAFC 76

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 39.05(e) and (h) of the Federal Court Rules 2011 (Cth), order 6 of the orders made by the Court on 27 March 2026 be varied to read as follows:

Determination of the appellant’s claim under the Compensation Protocol be referred to a different Independent Counsel for determination according to law.

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

REASONS FOR JUDGMENT

MURPHY AND SHARIFF JJ:

1    On 27 March 2026 the Court made orders in this appeal. By majority the appeal was decided in favour of the appellant. Orders 5 and 6 of the orders provided as follows:

5.    The determination of Independent Counsel, Mr Richard Sergi, dated 5 October 2023 be set aside.

6.    Determination of the appellant’s claim for non-economic loss and gratuitous care under the Compensation Protocol be referred to a different Independent Counsel for determination according to law.

2    In written submissions following judgment, the appellant contended that orders 5 and 6 are not reconcilable because:

(a)    Independent Counsel’s determination of the appellant’s claim is set aside in its entirety under order 5; but

(b)    only part of that claim is referred to a different Independent Counsel’s determination under order 6, being the appellant’s claim for non-economic loss and gratuitous care.

3    The appellant sought variation of order 6, under the slip rule, as follows:

Determination of the appellant’s claim for non-economic loss and gratuitous care under the Compensation Protocol be referred to a different Independent Counsel for determination according to law.

4    In opposing the proposed variation, the first and second respondents contended that orders 5 and 6 are reconcilable and no variation is required. They further submitted that, insofar as any variation is required, it is order 5 which should be varied, as follows (new text underlined):

The determination of Mr Eaton’s claim for non-economic loss and gratuitous care by Independent Counsel, Mr Richard Sergi, dated 5 October 2023 be set aside.

5    The parties advanced competing reasons for their approach which are unnecessary to recite. In our view it is plain that orders 5 and 6 are difficult to reconcile and are ambiguous: see, generally, Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629; 129 FCR 558 at [34]–[40] and [66]–[76] (Allsop J).

6    Further, orders 5 and 6 do not reflect the intention of the majority. We intended that the entire determination of Independent Counsel be set aside, and that the entirety of the appellant’s claim under the Compensation Protocol be referred to a different Independent Counsel for determination according to law. Although we stated in our judgment at [227] that it is appropriate that the determination of Mr Eaton’s claim for “non-economic loss and gratuitous care under the Compensation Protocol be referred to a different Independent Counsel for determination according to law”, our intention was not to limit the redetermination to only those claims. What we said in the second sentence of [227] was poorly expressed. Our intention (as reflected in the first sentence of [227]) was that whole of the Independent Counsel’s determination should be set aside, which would naturally mean that all of Mr Eaton’s claims will need to be redetermined. Our reference to “non-economic loss and gratuitous care” in the second sentence was intended to single out those as being amongst the aspects of Mr Eaton’s claim that will have to be redetermined.

7    Rule 39.05 of the Federal Court Rules 2011 (Cth) provides that the Court may vary or set aside a judgment or order after it has been entered if “it does not reflect the intention of the Court” (r 39.05(e)) or “there is an error arising in a judgment or order from an accidental slip or omission” (r 39.05(h)). Our error meets both of those criteria, and we are therefore satisfied that it is appropriate to vary the orders as sought by the appellant.

8    We make the attached orders.

Associate:

Dated: 27 May 2026

REASONS FOR JUDGMENT

CHEESEMAN J:

9    The present application does not raise any issue with my reasons for judgment. It is not necessary or appropriate for me to participate in the determination of this application, which properly falls for consideration by other members of the Court.

Associate:

Dated: 27 May 2026