FEDERAL COURT OF AUSTRALIA

[2001] FCA 1477

Bright v Femcare Limited

SUMMARY

In accordance with the practice of the Federal Court in some cases of public interest, the following summary has been prepared to accompany the reasons for judgment delivered today. The summary is intended to assist understanding of the decision of the Court. It is not a complete statement of the conclusions reached by the Court or the reasons for those conclusions. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment. The published reasons for judgment and this summary will be available on the Internet at  www.fedcourt.gov.au.

This proceeding is a representative proceeding commenced by Ms Bright on her own behalf and, in a representative capacity, on behalf of an unknown number of other women. The substantive case centres on surgical sterilisation procedures undergone by the applicant and the other women (together “the group members”).

For reasons that have not been established at this point in time, some sterilisation procedures failed and some of the group members (“Group A”) became pregnant. For the remaining group members (“Group B”) who have not become pregnant, awareness of failed sterilisations made them uncertain about the effectiveness of the procedures they have undergone. This is alleged to have caused them mental distress and, in some cases, led them to take additional precautions.

The applicant has alleged that the sterilisation procedure failed because the Filshie applicators used in the procedures were not properly adjusted. It is alleged that, for various reasons, this was a result of the respondents’ negligence or misleading or deceptive conduct. The respondents deny the claim.

The decision handed down today does not deal with the disputed claims of the group members but only with the way in which the proceeding should be managed in the future. The respondents had asked the Court to order that the proceeding not to continue as a representative action. In accordance with the provisions of the Federal Court of Australia Act 1976 (Cth), the Court has satisfied itself that a representative proceeding is not the most efficient and effective way of dealing with the claims of group members and that, in the interests of justice, this proceeding should not continue as a representative proceeding.

The reasons for this conclusion are set out in detail in the Court’s published reasons for judgment. In summary, the reasons are that, compared with the number and significance of issues that are not common, the common issues are few and relatively insignificant. Further, many of the issues that are common are so intertwined with issues that are not common that it would not be efficient or effective to deal with common and non-common issues in separate proceedings. It is also the case that, in relation to many of the common issues, findings could only be made at a most general level and the evidence and reasoning that led to those findings would have to be revisited when the claims of an individual woman were considered. This would be an inefficient and costly way of dealing with such claims and not in the interests of justice.

The fact that the proceedings will no longer continue as representative proceedings means that any group member (other than the applicant) wishing to make a claim against either or both respondents will need to bring separate proceedings, either in this or some other cCourt or in the District or Supreme Court. No decision has yet been made on the merits of the claims made by the applicant or any of the group members.