FEDERAL COURT OF AUSTRALIA

Courtney v Medtel Pty Limited [2001] FCA 1037

REPRESENTATIVE PROCEEDINGS - Opt out notices – role of the Court in determining form of opt out notice – need to identify deceased Group Members.

Federal Court of Australia Act 1976 (Cth), ss 33X, 33J, 33Y.

Trade Practices Act 1974 (Cth), ss 52, 74B, 75AD, 82.

King v GIO Holdings Ltd [2000] FCA 1869

King v GIO Holdings Ltd [2001] FCA 270

Femcare Ltd v Bright (2000) 100 FCR 331

McMullin v ICI Australia Operations Pty Ltd (1998) 156 ALR 257

KEVIN GLYNN COURTNEY in a representative capacity on behalf of all persons in whom St Jude Tempo Pacemakers were surgically implanted in Australia v MEDTEL PTY LIMITED

N 661 of 2000

SACKVILLE J

SYDNEY

2 AUGUST 2001

THE COURT ORDERS THAT:

1.                  Pursuant to s 33J(1) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act”), 12 October 2001 is fixed as the date by which a Group Member (as defined in paragraph 1 of the Fourth Amended Application filed herein) may opt out of these proceedings.

2.                  The form and content of the notice which is Annexure B to these reasons (“the Notice”) be approved for the purposes of s 33Y(2) of the Federal Court Act.

3.                  Subject to Order 5, the Notice be sent to each Group Member or, in the case of a deceased Group Member, to the executor or administrator of the deceased Group Member.

4.                  The Notice be sent by pre-paid registered post.

5.                  The parties follow the protocol set out in this Order:

(a)                The Applicant’s solicitors will provide the Respondents’ solicitors Notices in envelopes which have been pre-paid for registered post.

(b)               The Respondents’ solicitors will address and post the envelopes to Group Members, other than those Group Members known by the Respondents to be deceased.

(c)                In the case of any Group Member known to reside overseas, the Respondents’ solicitors will ensure that the envelope is posted with the correct postage for pre-paid registered mail.

(d)               The envelope referred to in subpars (b) and (c) will be posted not before 15 August 2001 and not later than 29 August 2001.

(e)                The field staff of the first respondent will contact each of the institutions and medical practitioners to whom the Pacemakers (as defined in par 1(a) of the fourth amended application) were supplied, seeking information as to the current status of the patients in whom the Pacemakers were implanted.

(f)                 The respondents’ solicitors will provide to the applicant’s solicitors by 15 August 2001, the name, last known address, date of birth and approximate date of death of any Group Members known to be deceased.

(g)                The applicant’s solicitors will undertake a search in the Probate Division of the Supreme Court of the State or Territory in which any deceased Group Member last resided, where such searches are available to the public, by 22 August 2001.

(h)                Where the applicant’s solicitors are able to identify the executor or administrator of the estate of the deceased Group Members, the envelope containing the opt out notice shall be addressed and sent by the applicant’s solicitors to that executor or administrator.

(i)                  Where the applicant’s solicitors are unable to identify the executor or administrator of the estate of the deceased Group Member, the applicant’s solicitors shall address the envelope containing the opt out notice to “The Estate of [name of deceased Group Member]”.

6.                  A copy of the fourth amended application and the fourth amended statement of claim be available for inspection at each District Registry during Registry hours on and after 15 August 2001.

7.                  The parties have liberty to apply on 24 hours notice.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

the proceedings

1                     The applicant commenced representative proceedings in this Court on 22 June 2000, pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”).  According to the fourth amended application, the applicant brings this action on his own behalf and on behalf of

“(a)     persons who have had a St Jude Medical Tempo Pacemaker, model number 1102, 1902, 2102, 2902…surgically implanted by a doctor in Australia, including persons who have had or may in the future have surgical removal of the Pacemaker; and

(b)           the legal personal representatives of the estates of deceased persons who had a St Jude Medical Pacemaker, model number 1102, 1902, 2102, 2902, surgically implanted by a doctor in Australia, including persons who had surgical removal of the Pacemaker.”

The application defines the expression “Group Members” to mean “the person or persons who had or have had a Pacemaker implanted, including deceased persons”.  I use “Group Members” in the same sense.  The expression “Pacemaker” is used in the application and in this Judgment to mean a St Jude Medical Tempo Pacemaker, model number 1102, 1902, 2102 or 2902.  According to the applicant’s pleadings there are approximately 992 Group Members.

2                     The applicant pleads that the first respondent (“Medtel”), a company incorporated in New South Wales, was in the business of importing, marketing and distributing medical devices in Australia, including the Pacemaker, under the business names “Cardiac Rhythm Solutions” and “Medtel Australia”.  The third respondent (“Pacesetters”) is said to be the manufacturer of the Pacemaker.  The second respondent (“St Jude”) is said to have been involved in the marketing of the Pacemaker.  Both St Jude and Pacesetters are incorporated in the United States.

3                     The statement of claim describes the Pacemaker as

“a cardiac device manufactured and used for the particular purpose of being surgically implanted on the advice of doctors inside the human body attached to the heart so as to restore and maintain a normal heart beat by providing an electrical impulse or energy or beat that is carried through leads to the heart.  The Pacemaker is triggered by an irregular pulse in the user to send a series of light electric pulses activating a regular heart beat.”

It is alleged that the Pacemakers had a fault, namely that they

“were prone to a circuitry problem, resulting or likely to result in accelerated battery depletion and consequential failure of the device, whereby the Pacemaker may cease to function without any prior warning or indication.”

4                     The applicant pleads that the Pacemaker was not reasonably fit for its purpose within s 74B of the Trade Practices Act 1974 (Cth) (“Trade Practices Act”) and had a “defect” which caused injury to the applicant and Group Members within s 75AD of the Trade Practices Act.  Each of the respondents is said to have engaged in misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act.  They are also said to have breached a duty of care owed by them to the applicant and the Group Members.  The applicant seeks declaratory relief, compensation pursuant to ss 74B and 75AD of the Trade Practices Act and damages under s 82 of the Trade Practices Act and under the general law.

the motion relating to the opt out notice

5                     The applicant has filed a motion seeking the following orders:

“1.       The parties…make arrangements to send by ordinary mail to each group member a notice pursuant to s 33X of the Federal Court of Australia Act 1976 in the form of the notice exhibited to the Affidavit of Rebecca Gilsenan, and filed herein;

2.                Such notice be forwarded on or before 27 July 2001, or such other date as is fixed by the Court.

3.                Group members be given the opportunity to opt out of these proceedings and that the dates for so opting out be fixed at 14 September 2001, or such other date as is fixed by the Court…”.

The notice exhibited to Ms Gilsenan’s affidavit is reproduced as Annexure A to this judgment.  The form of the notice is said to derive from that approved by Moore J in King v GIO Holdings Ltd [2000] FCA 1869, as modified by the Full Court in that case: King v GIO Holdings Ltd [2001] FCA 270, at [19].

the legislation

6                     Section 33X(1)(a) of the Federal Court Act provides as follows:

“(1)     Notice must be given to group members of the following matters in relation to a representative proceeding:

(a)               the commencement of the proceeding and the right of the group members to opt out of the proceedings before a specified date, being the date fixed under subsection 33J(1).”

Section 33J(1) requires the Court to fix a date before which a group member may opt out of a representative proceeding.  A group member may opt out of the representative proceedings by written notice under the Federal Court Act before the date is fixed: s 33J(2).

7                     Section 33Y of the Federal Court Act relevantly provides as follows:

“33Y    (1)        This section is concerned with notices under section 33X.

(2)               The form and content of a notice must be as approved by the Court.

(3)               The Court must, by order, specify:

(a)               who is to give the notice; and

(b)               the way in which the notice is to be given;

and the order may include provision:

(c)                directing a party to provide information relevant to the giving of the notice; and

(d)               relating to the costs of notice.

(4)               An order under subsection (3) may require that notice be given by means of press advertisement, radio or television broadcast, or by any other means;

(5)               The Court may not order that notice be given personally to each group member unless it is satisfied that it is reasonably practicable, and not unduly expensive, to do so.

…

(8)               The failure of a group member to receive or respond to a notice does not affect a step taken, an order made, or a judgment given, in a proceeding.”

form of the notice

8                     Section 33Y(2) of the Federal Court Act requires the Court to consider whether it should approve the form and content of the opt out notice provided for in s 33X(1)(a).  Neither party in the present case disputed that the Court is entitled to determine for itself whether a notice drafted by one or both parties is satisfactory having regard to the objects of the legislation and the circumstances of the case.

9                     As the Full Court observed in King v GIO (at [15]):

“[t]he principal purpose of the notice given under s 33X(1)(a) and s 33Y(2) is to ensure that group members can make an informed decision concerning their rights.”

In Femcare Ltd v Bright (2000) 100 FCR 331, at 349, the Full Court noted that the object underlying the direction to the Court in s 33Y(5) is

“to find the most economical means of ensuring that the group members are informed of the proceedings and their rights.  The [Law Reform Commission, Grouped Proceedings (Report No 46, 1988), par 190] had considered that ‘the more at stake for each person, the more effective the notice should be’.”

10                  It is also important to bear in mind that, as was said by Wilcox J in McMullin v ICI Australia Operations Pty Ltd (1998) 156 ALR 257, at 260:

“Any notice that is to be issued to members of the public in connection with a representative proceeding must be readily comprehensible by non-lawyers.  It should be written in plain English.”

11                  I would add a further observation.  Any opt-out notice should be framed so as not to cause unnecessary alarm or distress to intended recipients.  Practising lawyers, and for that matter judges, may tend to underestimate the impact that publication or service of a Court ordered notice may have on members of the represented group.  The recipients of a notice under s 33X of the Federal Court Act may become anxious when they learn for the first time of legal proceedings which may affect their legal rights and in respect of which they must decide whether or not to participate.  They may be concerned by technical language that is difficult to understand.  The notice may also alert them, particularly in personal injury cases, to the possibility that they are at risk of future harm.  People who are at risk of harm or who are otherwise vulnerable, such as elderly persons, may be particularly susceptible to anxiety or distress.  Notices must be accurate but should be drafted with sensitivity to these considerations.

the course of events

12                  The form and manner of distribution of the opt-out notice was first discussed at a hearing on 29 June 2001.  At that time the pleadings did not specifically state that Group Members included deceased persons who had had the Pacemaker implanted.  The parties jointly supported giving a notice to Group Members in the form of Annexure A to this Judgment.  Senior counsel for the applicant supported the proposal that the notice be sent to the Group Members by ordinary mail by reference to evidence suggesting that the cost of this form of notice would only be about $1,000, compared with about $25,000 if newspaper and television advertisements were to be placed nationally.  The evidence also indicated that the respondents maintained a database comprising the names and addresses of persons in whom the Pacemaker had been inserted and that this database was “reasonably current”.

13                  At the hearing, I expressed concern that a notice in the form of Annexure A, despite the authors’ intentions, might induce unnecessary anxiety in some Group Members.  In particular, I suggested that the first paragraph might actually alarm some recipients of the notice or their families, and I thought that some of the other language could be simplified.  I presented an amended version of the notice to the parties for their consideration.  The matter was then adjourned until 4 July 2001 to enable the parties to obtain further instructions and to address the concerns I had expressed.

14                  At the hearing on 4 July 2001, counsel for the respondent read an affidavit which recorded that the average age of Group Members was 78 years.  The affidavit also recorded the following information concerning the notification of a “hazard alert” to patients who had received a Pacemaker:

“(a)     a hazard alert dated 5 June 2000 was prepared by Cardiac Rhythm Solutions in conjunction with the Therapeutic Goods Administration, in relation to the pacemakers the subject of these proceedings (respectively ‘the Hazard Alert’ and ‘the pacemakers’);

 (b)      patient registration information was forwarded to Cardiac Rhythm Solutions by implanting hospitals at the time of implantation of the pacemakers, and this information included details of the patient’s name, the names of the implanting and follow-up doctors and the implanting hospital (‘the patient registration information’);

 (c)       from information obtained from the patient registration information, copies of the Hazard Alert were hand-delivered, or sent by ordinary mail or facsimile, by Cardiac Rhythms Solutions’ sales staff to follow-up doctors and persons in charge of major hospitals with cardiac clinics;

 (d)      in addition Cardiac Rhythm Solutions identified specific implanting doctors who were responsible persons in charge of pacemakers at specified institutions.  Copies of the Hazard Alert were also hand-delivered, or sent by ordinary mail or facsimile, by Cardiac Rhythm Solutions to these specified implanting doctors;

 (e)       product specialists from each State have confirmed to Cardiac Rhythm Solutions that copies of the Hazard Alert were received by the follow-up doctors, the persons in charge of major hospitals with cardiac clinics and the specified implanting doctors; and

 (f)       the copies of the Hazard Alert sent to the doctors and clinics attached a list of patients under the particular doctors’ care (for implant or follow-up) or as having been under the care of particular clinics, as relevant.”

15                  The reference to the average age of Group Members prompted me to raise two further questions with the parties:

(i)                  The first was whether any effort had been made by the parties to identify those Group Members who had died.  I was concerned, inter alia, that the relatives of a deceased Group Member should not be exposed to unnecessary distress by a letter addressed to the deceased person as though he or she were still alive.

(ii)                The second was whether the applicant intended to include the estates of Group Members as represented parties in the proceedings.

Mr Bannon SC, who appeared for the applicant, answered the first question, in substance, in the negative.  After seeking instructions, he answered the second question in the affirmative, but acknowledged that the third amended statement of claim would have to be further amended to make this clear.  Following further discussion about additional inquiries the parties could make, especially in relation to those Group Members who may have died, the matter was further adjourned until 17 July 2001.

16                  At the hearing on 17 July 2001, the applicant sought leave to file a fourth amended application and a fourth amended statement of claim.  Counsel for the respondents requested time to consider the proposed amendments but has since advised the Court that there is no objection to the filing of the amended pleadings.  The application is now said to be brought by the applicant on his own behalf and on behalf of persons referred to in [1] above, including the legal personal representatives of the estate of deceased persons who had a Pacemaker surgically implanted in Australia.

17                  At the hearing, the applicant handed up a further amended version of the proposed notice, which incorporated references to the fact that Group Members include the legal representatives of the estates of deceased persons who had the Pacemaker implanted in Australia.  Some further minor changes were suggested and adopted at that hearing.  Mr Bannon also indicated that the applicant now proposed that notice should be given to Group Members by registered mail rather than ordinary mail.

18                  At the same hearing, the respondent read an affidavit which recorded that Medtel had been notified of the deaths of twenty-three Group Members.  Medtel had become aware of some deaths because surgeons who had removed a Pacemaker upon the death of a patient had on occasions returned the device to the distributor.  In addition, Medtel had been notified of other deaths through product specialists who had become aware that some Group Members had died in the course of delivering the hazard alert to doctors and hospitals.  The affidavit pointed out that, because there is no system in place by which Medtel is notified of the deaths of all recipients of Pacemakers, the information available to it concerning deceased recipients is necessarily incomplete.  I was informed from the Bar table that all of the twenty-three deceased Group Members whose names were known were from Victoria.

19                  The parties relied on joint written submissions in which they contended that there was no suitable means of ascertaining which other Group Members, if any, had died.  They asserted in the submissions that searches at State and Territory Registries of Births, Deaths and Marriages “would be extremely expensive, cumbersome and time consuming”.  This assertion was apparently based upon the fact that a separate search must be conducted by name for each deceased person and, in some States and Territories, a fee of $17 to $29 is payable in respect of each search.  Furthermore, in New South Wales and South Australia, persons other than a deceased’s next of kin or their agents lack standing to conduct a search.  The joint submission further asserted that it would be “expensive, cumbersome and time consuming” to conduct searches in the Probate Divisions of the Supreme Courts of the States and Territories.  This was said to be the case because search fees are payable in some States or Territories, while elsewhere the search will not disclose the details of the executors or of the deceased’s last address.  In order to obtain this additional information, another paid search is required.

20                  The joint submission concluded with the observation that the parties were unable to suggest a time and cost effective mechanism which would result in the certain identification of all deceased recipients of Pacemakers and the names and addresses of the executors of their estates. 

21                  Despite the terms of the joint submission, discussion took place concerning the feasibility of further inquiries being made in order to identify deceased Group Members and the executors or administrators of their estates.  The parties agreed to explore this question further.  They subsequently forwarded to the Court an “agreed protocol”.  That protocol, subject to minor editorial changes, is as follows:

1.      The field staff of the first respondent contact each of the institutions and medical practitioners to whom the Pacemakers were supplied, seeking information in relation to the current status of the patients in whom a Pacemaker was implanted.

2.      The respondents’ solicitors provide to the applicant’s solicitors by 15 August 2001, the name, last known address, date of birth and approximate date of death of any Group Members known to be deceased.

3.      The applicant’s solicitors undertake a search in the Probate Division of the Supreme Court of the State or Territory in which any deceased Group Member last resided, where such searches are available to the public, by 22 August 2001.

4.      Where the applicant’s solicitors are able to identify the executor or administrator of the estate of the deceased Group Member, the envelope containing the opt out notice shall be addressed and sent by the applicant’s solicitors to that executor or administrator.

5.      Where the applicant’s solicitors are unable to identify the executor or administrator of the estate of the deceased Group Member, the applicant’s solicitors shall address the envelope containing the opt out notice to “The Estate of [name of deceased Group Member]”.

reasoning

22                  In my view, it is appropriate that notice be given by pre-paid registered mail to each Group Member (or that Group Member’s executor or administrator) of the matters referred to in s 33X(1)(a) of the Federal Court Act.  This provides an economical means of ensuring, to the maximum extent possible, that Group Members are individually informed of the proceedings and of their rights.  I am satisfied, in terms of s 33Y(5) of the Federal Court Act, that it is reasonably practicable and not unduly expensive to order that notice be given in this manner personally to each Group Member.  As the applicant has recognised, the cost of service by registered mail is relatively modest and the parties and the Court would have the advantage of knowing which notices have not been delivered.  As agreed between the parties, the applicant’s solicitors should send the notices by prepaid registered post to each Group Member at his or her address as ascertained from the database maintained by the respondents. 

23                  It is clearly necessary that steps be taken to identify deceased Group Members and to ensure that the notices to the executors or administrators are appropriately addressed.  In my opinion, the agreed protocol between the parties should be adopted.  While adherence to the protocol will not necessarily identify every deceased Group Member, it seems to me that the approach is a reasonable one in the circumstances of the case.  It should minimise, if not avoid all together, the difficulties discussed in argument.

24                  The form of the notice to be sent to Group Members should be that set out in Annexure B.  It is, of course, a matter of judgment as to whether a particular form of notice achieves sometimes conflicting objectives of accuracy, simplicity, and avoidance of unnecessary distress to recipients.  Doubtless the notice in the form of Annexure B could be refined further.  I think, however, that it is a significant improvement on the original draft.  Moreover, the parties have indicated that they are content with a notice in this form.

25                  I fix 12 October 2001 as the date by which a Group Member may opt out of the proceedings.

26                  The parties have not asked for any costs order to be made in respect of the notice.

Associate:

Dated:              2 August 2001

ANNEXURE “A”

CLASS ACTION – TEMPO PACEMAKERS (MODELS: 1102, 1902, 2102, 2902)

You should not be alarmed about receiving this Notice.  It does not mean that there is anything wrong with your pacemaker.  If you have any concerns or questions in relation to your pacemaker, you should contact your GP or cardiologist.

This Notice is issued to you pursuant to the order of Justice Sackville dated 29 June 2001 and in accordance with the rules of the Federal Court of Australia which govern the conduct of representative proceedings.

This Notice is a very important document which may affect your legal rights.  You should read it carefully and, if you do not understand any part of it, you may wish to seek legal advice in relation to its contents.

On 22 June 2000 a representative proceeding was commenced under Part IVA of the Federal Court of Australia Act 1976 (the Act) in the Federal Court of Australia against Medtel Pty Limited, St Jude Medical Inc. and Pacesetter Inc. (the Respondents).

The Applicant, Mr Kevin Courtney, is claiming damages and other relief for himself and on behalf of all persons in whom Tempo pacemakers (models 1102, 1902, 2102, 2902) (the Pacemakers) were surgically implanted in Australia.  The Applicant alleges that he and group members suffered loss, injury and/or damage because:

a.                   the Pacemakers were not reasonably fit for their purpose;

b.                  the Pacemakers were not of merchantable quality;

c.                   the Pacemakers were defective;

d.                  the Respondents engaged in misleading and deceptive conduct;

e.                   the Respondents made false representations; and,

f.                    the Respondents breached their duty of care.

The Respondents deny these allegations and are defending the proceeding.

You are a group member in the proceeding if you had a Tempo pacemaker (model nos. 1102, 1902, 2102 or 2902) surgically implanted in Australia.  You are a Group Member whether or not you have had the pacemaker removed.

If you would like to inspect the court documents you may do so on any weekday between 9am and 5pm at the offices of Maurice Blackburn Cashman Lawyers:

269 Sussex Street, Sydney, NSW

550 Swanston Street, Carlton, VIC

861 Ann Street, Fortitude Valley, QLD

If you are a group member as defined in these proceedings, you have the right to exclude yourself (opt out) from these proceedings.  The Court has fixed 4:00pm on 14 September 2001 as the time by which you may opt out of these proceedings.

If you are not sure whether you are a group member, or whether you should opt out please contact your solicitor or Rebecca Gilsenan or Ben Slade at Maurice Blackburn Cashman, at 269 Sussex Street, Sydney, NSW 2000, Telephone (02) 9261 1488.

IF YOU WISH TO OPT OUT

If you wish to opt out of the proceedings you must send or deliver a notice in the form attached, to the following person and address.  It must arrive there by 4:00pm on 14 September 2001.

The Registrar

New South Wales District Registry

Federal Court of Australia

Level 16 Law Courts Building

Queens Square

Sydney, NSW, 2000

IF YOU DO NOT OPT OUT

If you do not opt out of the proceedings you will be one of the group members on whose behalf the Applicant is conducting the proceedings and you will be bound by any judgment made in the proceedings.

Maurice Blackburn Cashman Lawyers are representing the Applicant in the proceedings.  You will not be liable for their legal fees merely by remaining a group member.  That is subject to the qualification that the Court has power under Section 33ZJ of the Act to order that the costs reasonably incurred by the Applicant in prosecuting the claim, to the extent that they exceed the costs recoverable by him from the Respondents, be paid to the Applicant out of any damages awarded to group members in the proceedings.

If the proceedings against the Respondents are successful, in order to obtain compensation you will need to prove that you suffered loss or damage because of the Respondents’ conduct.  To do this you are likely to need legal representation.  If you want Maurice Blackburn Cashman Lawyers to act on your behalf for this purpose you will have to enter into a fee and retainer agreement with them.  To obtain a copy of the fee and retainer agreement contact Maurice Blackburn Cashman Lawyers at 269 Sussex Street, Sydney, New South Wales, telephone (02) 9261-1488.

NOTICE OF OPTING OUT BY GROUP MEMBER

(Order 73, Rule 6)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY                                             No N661/2000

B E T W E E N:

KEVIN GLYNN COURTNEY

in a representative capacity on behalf

of all persons in whom St Jude Tempo

Pacemakers were surgically

implanted in Australia                                                                                                         Applicant

MEDTEL PTY LIMITED

CAN 076 530 946                                                                                                               First Respondent

ST JUDE MEDICAL, INC

a Minnesota corporation with its principal

place of business at One Lillehei Plaza,

City of St Paul, County of Ramsey,

State of Minnesota                                                                                                              Second Respondent

PACESETTER INC.

a Delaware corporation with its principal

place of business 15900 Valley View Court,

Sylmar, California

To:

The Registrar

New South Wales District Registry

Federal Court of Australia

Level 16 Law Courts Building

Queens Square

Sydney, NSW, 2000

I,…………………………………, a group member in the above representative proceedings give notice under Section 33J of the Federal Court of Australia Act 1976 that I am opting out of the representative proceedings.

……………………………………

Date

…………………………………………

Signature of Group Member or his or her Solicitor

…………………………………………

…………………………………………

…………………………………………

Address of Group Member

ANNEXURE “B”

FEDERAL COURT CLASS ACTION – TEMPO PACEMAKER (MODEL: 1102, 1902, 2102 or 2902)

This Notice has been sent to you as the result of a case that is under way in the Federal Court of Australia.  The purpose of the Notice is to explain to you and to other people who have had a Tempo Pacemaker surgically implanted in Australia the nature of the court case and to give you an opportunity to decide if you do or do not want to be a part of it.  If you have had one of these Pacemakers implanted in Australia you are automatically part of the case, unless you choose to opt out of it.

Please understand that the sending of this Notice does not necessarily mean that there is anything at all wrong with your pacemaker.  Of course, if you have any concerns or questions about your pacemaker, you should contact your general practitioner, treating cardiologist or cardiac clinic.

A Judge of the Federal Court has directed that a Notice in this form be sent to all people who have had a Tempo Pacemaker (Model 1102, 1902, 2102 or 2902) surgically implanted in Australia.  This procedure is in accordance with the requirements of the Federal Court of Australia Act 1976 (Cth) (“the Act”). 

You should understand that this Notice is an important document because your decision whether or not to join the Court case could affect your legal rights.  You should read the Notice carefully.  You may wish to seek your own legal advice in relation to its contents.

The Court case was commenced in the Federal Court of Australia on 22 June 2000.  The Applicant is Mr Kevin Courtney and he is suing Medtel Pty Limited, St Jude Medical Inc and Pacesetter Inc (the “Respondents”).  These companies are alleged to have been involved in the manufacture, distribution or promotion of the Tempo Pacemaker.  The case is not against doctors or hospitals.

The applicant, Mr Courtney, is claiming damages and other legal remedies against the Respondents, not only for himself, but on behalf of the members of a Group.  The Group Members comprise all persons in whom a Tempo Pacemaker (Model 1102, 1902, 2102 or 2902) has been surgically implanted in Australia.  Any such person is a Group Member whether or not the person has had the Pacemaker removed. The Group also includes the legal personal representatives of the estate of any deceased persons who had a Tempo Pacemaker (Model 1102, 1902, 2102 or 2902) surgically implanted in Australia.  Please understand that the reference to deceased persons does not necessarily mean that anybody has died as a consequence of any problem with the pacemaker.

The Applicant alleges that he and Group Members suffered loss, injury or damage because one or more of the Respondents supplied a defective product or one that was not suitable for its intended purpose, engaged in misleading or deceptive conduct or acted negligently.

The Respondents deny these allegations and are defending the proceedings.

If you would like to inspect the Court documents you may do so on any weekday between 9am and 5pm, at the offices of Maurice Blackburn Cashman Lawyers:

269 Sussex Street, Sydney, NSW

550 Swanston Street, Carlton, VIC

861 Ann Street, Fortitude Valley, QLD.

If you are a Group Member as defined in these proceedings, you have the right to exclude yourself (opt out) from these proceedings.  The Court has fixed 12 October 2001 as the date by which you may opt out of these proceedings.

If you are not sure whether you are a Group Member, or whether you should opt out please contact your solicitor, or Rebecca Gilsenan or Ben Slade at Maurice Blackburn Cashman, at 269 Sussex Street, Sydney, NSW 2000, telephone (02) 9261 1488.

IF YOU WISH TO OPT OUT

If you wish to opt out of the proceedings you should send or deliver a notice in the form attached to

The Registrar

New South Wales District Registry

Federal Court of Australia

Level 16 Law Courts Building

Queens Square

Sydney  NSW  2000

The opt out notice must arrive at this address by 12 October 2001.

IF YOU DO NOT WISH TO OPT OUT

If you want to remain a Group Member you are not required to do anything at this time.  If you do not opt out of the proceedings you will be one of the Group Members on whose behalf the Applicant is conducting the proceedings.  This means that you will be bound by any judgment given in the proceedings.

Maurice Blackburn Cashman Lawyers are representing the Applicant in the proceedings.  You will not be liable for their legal fees merely by remaining a Group Member.  The only qualification is if the Applicant is successful, and the Court awards compensation to Group Members, the Court may make an order that some of that compensation be used to help pay a share of any remainder of the Applicant’s legal costs which is not recovered from the Respondents.

If the proceedings against the Respondents are successful, in order to obtain compensation you will need to prove that you suffered loss or damage because of the Respondents’ conduct.  To do this you are likely to need legal representation.  You are entitled to choose your own lawyer to act on your behalf.  If, however, you want Maurice Blackburn Cashman Lawyers to act for you for this purpose you will have to enter into a fee and retainer agreement with them. To obtain a copy of the fee and retainer agreement contact Maurice Blackburn Cashman Lawyers at 269 Sussex Street, Sydney, New South Wales, telephone (02) 9261 1488.

[The form of opt-out notice is identical to that in Annexure A.]