FEDERAL COURT OF AUSTRALIA

West v Rane [2019] FCA 2195

ORDERS

THE COURT ORDERS THAT:

1.    The 14 Federal Court proceedings be adjourned to 10.15am on 24 February 2020.

2.    The applicants file and serve written submissions by 6 February 2020.

3.    The respondents file and serve any written submissions in response by 18 February 2020.

4.    The applicants file and serve any written submissions in reply by 21 February 2020.

5.    Costs of the case management hearing on 18 December 2019 be reserved.

6.    The applicants prepare a consolidated pleadings folder which is to include the statement of claim for each of the 14 Federal Court proceedings and the 26 State proceedings, with such folder to be delivered to Chambers of Lee J by 12pm on 20 February 2020.

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

REASONS FOR JUDGMENT

(Revised from the Transcript)

LEE J:

I    INTRODUCTION AND BACKGROUND

1    The world was different in 1990: the Soviet Union existed; Margaret Thatcher was entering her final days as Prime Minister of the United Kingdom; Sir Nigel Bowen was Chief Justice of this Court; mobile telephones resembled house bricks; there was still a rental market for Betamax videos; and the world had yet to be introduced to the Macarena. The approach of those advising the applicants in this related litigation has been redolent of these very different (and some would say halcyon) days. For reasons that surpass understanding, a very large number of individual proceedings have been commenced in circumstances where there are common issues between them, as if Pt IVA of the Federal Court of Australia Act (1976) (Cth) (Act) (which was designed to allow such cases to be advanced in a cost effective and efficient way), did not exist.

2    The following matters are common ground between the parties:

(1)    14 cases are before the Federal Court for case management (Federal Proceedings).

(2)    26 or so similar, further cases have been commenced and are extant: nine in the Supreme Court of Queensland; 13 in the Supreme Court of New South Wales; two in the Supreme Court of Victoria; and two in the Supreme Court of Western Australia (State Proceedings).

(3)    AJB Stevens are the solicitors for the applicant or plaintiff in each of the Federal Proceedings and State Proceedings.

(4)    A subset of the Federal Proceedings and State Proceedings (10 matters, including NSD1684 of 2019 (Schofield Proceeding) and NSD1315 of 2019 (Cole Proceeding) (collectively the Subset A Proceedings)) relate to the use of specific implants known as “TFS” or “IVS” (Relevant Implants).

(5)    An open class Pt IVA proceeding is proposed to be commenced on behalf of all persons who had surgery to implant the Relevant Implants (being a class action in which each of the applicants/plaintiffs in the Subset A Proceedings will either be an applicant or a group member).

(6)    The balance of the Federal Proceedings and State Proceedings (30 proceedings) are said, by senior counsel appearing on behalf of the applicants in this Court, to relate to the surgical use of two types of polypropylene products (Subset B Proceedings) and although the legal representatives of the applicants/plaintiffs in the Subset B Proceedings submit “there will be a significant number of common issues” in those individual proceedings, no Pt IVA proceeding is proposed to be commenced and it is proposed that the Subset B Proceedings continue as individual proceedings in state courts where either: (a) they have already been commenced; or (b) to which it is now said by the applicants that 12 of the Federal Court proceedings should be cross-vested.

(7)    There are at least an additional 147 clients of AJB Stevens who, at present, are having claims investigated and who may advance claims which, if advanced, would be claims similar to those currently advanced in either the Subset A or Subset B Proceedings.

(8)    The reason why no Pt IVA proceeding is proposed to be commenced to advance claims currently made in the Subset B Proceedings, is not because it is not possible to do so as a matter of law, but because a client of AJB Stevens has “been unable to be sourced” who would be willing to act as the representative applicant.

(9)    The respondents in each of the Federal Proceedings wish all of the Federal Proceedings (save for the Schofield Proceeding and the Cole Proceeding, which relate to the use of the Relevant Implants) to be cross-vested to state courts. This would involve the transfer of six proceedings to the Supreme Court of Queensland, three proceedings to the Supreme Court of Western Australia, two proceedings to the Supreme Court of New South Wales and one proceeding to the Supreme Court of the Northern Territory. In relation to the Schofield Proceeding and the Cole Proceeding, it is submitted that those proceedings should be adjourned to a date in February until after the commencement of the proposed Pt IVA proceeding to ascertain what should happen to those two proceedings.

3    At present, it is far from self-evident to me, as to why one Pt IVA proceeding could not encompass the entirety of the claims currently being advanced in the Subset A Proceedings and the Subset B Proceedings. Alternatively, even if this was not regarded as possible, it is not disputed that it would be licit for there to be two Pt IVA proceedings which span all claims, some of which are currently being advanced in the Federal Proceedings and the State Proceedings.

4    To engage in a measure of understatement, what has occurred in relation to these claims is highly unfortunate. All of these claims (being not only the Federal Proceedings but also the State Proceedings) are indubitably matters in federal jurisdiction. The fact that in an integrated federal judicature it is proposed that five superior courts deal with these controversies, including potentially dealing with common issues and reaching inconsistent factual findings, is startling and is a demonstration that something has gone awry. Looking at it solely from the perspective of the present applicants or plaintiffs who could be group members in a class action, it is very hard to imagine why it was ever in their interests to have their claim advanced in an individual proceeding. To adopt this course means they were (and presently are) denied the adverse costs protection that they would enjoy as group members under s 43(1A) of the Act, which provides that in a class action an award of costs “may not” be awarded against a group member.

iI    THE APPLICATIONS

5    The principles that inform the determination of these applications that 12 proceedings be transferred to the various state courts pursuant to s 5(4)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) are not in dispute and are well-known. The criterion is whether it is in “the interests of justice” that the matter be determined by another court. Rather than a selection of the most advantageous (or least disadvantageous) forum for one of the parties, the “interests of justice” are to be judged by objective factors to facilitate the identification of the “natural forum” in which it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party: see Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36 at 59-60 [69] per Brereton J.

6    In James Hardie & Coy Pty Limited v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at 379 [95], Mason P endorsed a checklist which had regard to a number of factors: (a) the application of substantive law; (b) any forensic advantage or detriment conferred by procedural law; (c) the choice made by the moving party of the forum and the reasons for that choice; (d) any substantive connexion with the forum; (f) the balance of convenience to parties and witnesses; and (g) the convenience to the court system.

7    Following the decision of the High Court, however, in BHP Billiton v Schultz [2004] HCA 61; (2004) 221 CLR 400 at 425 [25] (Gleeson CJ, McHugh and Heydon JJ); 439 [77] Gummow J; 465 [167] (Kirby J); and 492 [258] (Callinan J), no particular significances are now attached to the original choice of forum.

8    There are a number of matters called in aid by the parties to support the assertion that the interests of justice require the 12 proceedings to be cross-vested. Apart from the fact that all parties consent to this course, they include that the relevant events occurred in the various states and territories to which the proceedings are proposed to be transferred; “state or territory law” governs the claim made; the witnesses and parties are located in the various states and territories; and there are several matters already extant in the various states (although this last factor is not present in relation to the application to transfer proceeding NSD1037 of 2019 to the Supreme Court of the Northern Territory).

9    It is further submitted that in relation to the applications for transfers to Queensland, there is an additional advantage: that is, the application of provisions of the Personal Injuries Proceedings Act 2012 (Qld) (PIPA), the main purpose of which is to provide a procedure for the speedy resolution of claims for damages for personal injury by promoting settlement at an early stage wherever possible. This end is achieved, in part, by ensuring that a person may not start a proceeding based on a claim for damages for personal injury without going through the procedure mandated by the statute. This procedure includes attending a pre-court conference with a view to resolving the matter and if that is unsuccessful, the mandatory exchange of final offers, which the court may then have regard to in making a decision about costs.

10    Three further submissions were made: first, that it would be convenient to have individual trials determined in state courts because of the ability to conduct the hearings at a place convenient to both the parties and the witnesses; secondly, state courts have some advantages in dealing with matters of this type by reason of their familiarity with applications such as the extension of time of limitation periods and the assessment of damages in accordance with the relevant state legislative regimes; and thirdly, it was asserted that the transfers would increase the prospect of early resolution of the claims (which, it was said, would be to the particular advantage of the respondents).

Iii    THE WAY FORWARD

11    At present, I am far from convinced that it is in the interests of justice to make orders cross-vesting the 12 proceedings or any of them. Having said that, I do not propose to dismiss the transfer applications at present, but, rather, intend to adjourn them until after the commencement of the Pt IVA representative proceeding which has been foreshadowed by the solicitors for the applicants. All the Federal Proceedings will be listed together with the Pt IVA proceeding. It was already agreed that the Schofield Proceeding and the Cole Proceeding should be adjourned to such a time.

12    In the interim, those acting for the applicants should reflect very closely indeed on what has occurred to date and should also reach a view as to whether or not it is possible for one Pt IVA proceeding to be commenced which advances the claims of all claimants.

13    I initially also raised with the parties that it would be appropriate for the solicitor for the applicants to swear an affidavit verifying the fact that the potential costs exposure of their clients had been explained to them in pellucid terms, and the clients have been advised properly of how their current position contrasts to their potential role as group members in a class action. There is, after all, a reason why the Australian Law Reform Commission, in proposing the class action regime, perceived very real advantages to persons such as the applicants, if claims could be advanced via the mode of a class action. Prima facie, and subject to hearing further submissions, I have concerns as to whether the solicitor for the applicants, who has apparently advised the applicants to proceed along the course initially adopted, is in a position to give disinterested and wholly unconflicted advice in this respect, but, at least at this stage, I am comforted by the fact experienced and competent counsel have now been briefed.

14    At present, the course I propose to adopt is to require, at the next case management hearing, a detailed explanation from counsel (supported by any direct evidence from the clients proposed to be relied upon) as to why any applicant considers it to be in their best interests to maintain an individual proceeding, in circumstances where they will potentially be liable for an adverse costs order prior to the determination of any common issues and a declassing.

15    Additionally, in the applicants’ written submissions, the common issues that arise in relation to the Pt IVA class action should be identified with precision (which is necessary under s 33H of the Act in any event) and also any common issues which arise in relation to the extant Subset B Proceedings (in the event, that upon mature reflection, it is determined that one Pt IVA proceeding spanning all claims will not be commenced).

16    In the event that the 12 current Subset B Proceedings are not incorporated in a Pt IVA proceeding by the time the matters next come before the Court, notwithstanding my preliminary views, I will hear any further submissions and then give consideration as to whether or not those proceedings should be transferred or, alternatively, whether they should be case managed by me as if they were, in effect, representative proceedings, where any common issues can be identified and determined as a preliminary matter in each case. I would also give consideration, if I adopted this latter course, to requiring procedures similar to that put in place by the PIPA regime to ensure, consistently with the case management imperatives set out in Part VB of the Act, that there is close and early attention given to whether an early settlement is able to be achieved.

17    By the time of the adjourned interlocutory hearing I will also have a better idea of my commitments during 2020. Depending upon the demands upon my time, it may be possible for an accelerated timetable to be put in place to ensure that if these matters are not settled, they be advanced with celerity in this Court, including by the appropriate use of referees to inquire into and report to the Court on various matters which might be relevant to the determination of the factual issues. When the solicitors for the applicants are in a position to file their proposed Pt IVA proceeding or proceedings they should contact my Associate prior to filing to ensure that the originating application is made returnable at the same time as the adjourned hearing of these applications.

18    What has occurred until now has been lamentable and has not served to advance the efficient progression of these claims; the situation should not now be made worse by a lack of close attention being given by counsel briefed, to the matters raised in this judgment.

Associate:

Dated:    13 January 2020