Federal Court of Australia

Green v Johnson and Johnson Pacific Pty Ltd [2025] FCA 583

ORDERS

THE COURT ORDERS THAT:

1.    The following paragraphs of the amended statement of claim be struck out:

(a)    paragraphs 76, 81 and 86;

(b)    paragraphs 77, 79, 82, 84, 87 and 89; and

(c)    paragraph 97.

2.    The applicant provide further and better particulars of the allegation in paragraph 100 as soon as reasonably practicable.

3.    The interlocutory application filed by the respondent dated 14 April 2025, otherwise be dismissed.

4.    By 4.00 pm on 30 June 2025, the applicant serve a proposed further amended statement of claim.

5.    By 4.00 pm on 28 July 2025, the applicant file and serve a further amended statement of claim.

6.    The applicant pay the respondent’s costs of the interlocutory application.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    By interlocutory application, the respondent (JJP) seeks strike out of several paragraphs of the applicant’s amended statement of claim dated 19 March 2025 (ASOC).

2    JJP’s interlocutory application is dated 14 April 2025. It is supported by an affidavit of Jason Betts, a partner of Herbert Smith Freehills, the solicitors acting for JJP in the proceeding, dated 14 April 2025. There is no affidavit material in response.

3    The interlocutory application seeks an order pursuant to r 16.21 of the Federal Court Rules 2011 that the following paragraphs of the ASOC be struck out:

(a)    paragraphs 73 to 75, which contain allegations regarding JJP’s activities;

(b)    paragraphs 76, 81 and 86, which allege statements on packaging;

(c)    paragraphs 77, 79, 82, 84, 87 and 89, which allege representations;

(d)    paragraph 97, which pleads an express warranty;

(e)    paragraph 100, which relates to the applicant’s purchases; and

(f)    paragraphs 115, 118, 121 and 124, which relate to loss or damage.

Overview of the proceeding

4    The proceeding, which was commenced on 20 December 2024, is a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth). The claims relate to cold and flu medication sold by JJP under the Benadryl, Codral and Sudafed brand names. In total, the proceeding relates to 21 products. The allegations in the proceeding cover a lengthy period of time. The period of time differs depending on the product, with the longest period being since 2005 (see paragraph 34 of the ASOC).

5    The group members are defined in paragraph 2 of the ASOC as being (subject to certain exceptions) all persons who had purchased in Australia at least one of the J&J Pacific Oral PE Products (as defined in paragraph 6 of the ASOC) as at the time the proceeding was commenced. The expression “J&J Pacific Oral PE Products” is defined as meaning the products pleaded in certain specified paragraphs of the ASOC, that is, the 21 products referred to above.

6    The essence of the applicant’s case is that JJP represented that each of the 21 products provided effective relief from:

(a)    a blocked nose;

(b)    a runny nose; and/or

(c)    sinus pressure,

but in fact none of the products, when taken in accordance with the prescribed dosage, provided any clinically significant relief for nasal congestion.

Applicable principles

7    Rule 16.21 deals with an application to strike out pleadings. Relevantly, r 16.21(1) provides that a party may apply to the Court for an order that all or part of a pleading be struck out on the grounds that the pleading “is likely to cause prejudice, embarrassment or delay in the proceeding” (paragraph (d)).

8    It is also relevant to note that r 16.02(1) provides that a pleading must “state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved”.

9    In Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 at 286, Mason CJ and Gaudron J said that “[t]he function of pleadings is to state with sufficient clarity the case that must be met … In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision”. That passage was quoted with approval by Gageler and Edelman JJ in Berry v CCL Secure Pty Ltd [2020] HCA 27; 271 CLR 151 at [72].

10    In Seven Network Ltd v News Ltd [2003] FCA 388 at [22], Sackville J stated that a pleading must allege the material facts that establish each element of the cause of action. Accordingly, it is not enough to assert conclusions drawn from facts not pleaded in the statement of claim.

11    I accept that, as submitted by the applicant, the contemporary approach to strike out applications is that described by Murphy J in Gall v Domino’s Pizza Enterprises Ltd (No 2) [2021] FCA 345; 391 ALR 675 at [19]-[20]. I approach the present application on that basis.

Outline of the ASOC

12    Before addressing the specific paragraphs of the ASOC that are the subject of the strike out application, I will provide an overview of the pleading.

13    Section A (paragraphs 1 to 5) deals with the parties and group members.

14    Section B.1 (paragraphs 6 to 69) deals with the 21 products that are in issue in the proceeding. For each of the products, it is alleged that JJP held itself out to the public as the manufacturer of the product. Details of the active ingredients of each product are pleading.

15    Section B.2 (paragraphs 70 to 72) provides some additional allegations relating to the characteristics of the relevant products.

16    Section B.3 (paragraphs 73 to 93) is heading “J&J Pacific’s Packaging, Distribution, and Marketing”. This section includes the alleged representations and is the main focus of the strike out application.

17    Section B.4 (paragraphs 94 to 99) contains allegations relating to the consumer guarantees in the Australian Consumer Law (being Sch 2 to the Competition and Consumer Act 2010 (Cth)).

18    Section C (paragraphs 100 and 101) alleges that the applicant and group members purchased the relevant products.

19    Section D (paragraphs 102 to 105) alleges in summary that none of the relevant products, when taken in accordance with the prescribed dosage, have any clinically significant effect in relieving nasal congestion.

20    Section E (paragraphs 106 to 112) alleges contraventions of the misleading or deceptive conduct provisions of the Australian Consumer Law and predecessor legislation. It is also alleged that there was a failure to comply with the consumer guarantees.

21    Section F (paragraphs 113 to 124) contains allegations of loss and damage and diminution in value.

Consideration

22    I will deal with each group of paragraphs as set out in the introduction to these reasons.

Paragraphs 73 to 75

23    These paragraphs contain pleadings in relation to JJP’s alleged packaging activities, distribution activities and marketing activities. These paragraphs are expressed generally, in the sense that they apply to all of the relevant products without distinction.

24    These paragraphs are expressed in clear terms and do not necessarily present any difficulty if considered in isolation. The real issue is what is sought to be made of these paragraphs in later paragraphs of the pleading (namely, paragraphs 77, 79, 82, 84, 87 and 89). I consider it preferable to consider the pleading issue raised by JJP when I come to consider those paragraphs. I do not consider it necessary to strike out paragraphs 73 to 75.

Paragraphs 76, 81 and 86

25    Paragraph 76 (without mark-up) is expressed as follows:

At all material times, through the J&J Pacific Packaging Activities, the packaging of each of:

(a)    Benadryl Mucus Relief Plus Decongestant Oral Liquid;

(b)    Benadryl PE Chesty Cough & Nasal Decongestant Oral Liquid;

(c)    Benadryl PE Dry Cough & Nasal Congestion Oral Liquid;

(d)    Codral Cold & Flu;

(e)    Codral Cold & Flu Oral Powder;

(f)    Codral Cold & Flu + Dry Cough;

(g)    Codral Cold & Flu + Mucus Cough;

(h)    Codral Cold & Flu + Mucus Cough Oral Powder;

(i)    Codral Day & Night;

(j)    Codral Day & Night + Dry Cough;

(k)    Codral Decongestant;

(l)    Codral Dry Cough + Cold Oral Liquid;

(m)    Codral Mucus Cough + Cold Oral Liquid;

(n)    Codral Night;

(o)    Codral Plus Mucus Cough Liquid + Cold & Flu;

(p)    Sudafed PE Nasal Decongestant;

(q)    Sudafed PE Night;

(r)    Sudafed PE Sinus + Allergy & Pain Relief;

(s)    Sudafed PE Sinus + Anti Inflammatory Pain Relief;

(t)    Sudafed PE Sinus + Pain Relief; and

(u)    Sudafed PE Sinus + Pain Relief Day & Night,

has stated that the respective product provides effective relief from a blocked nose (Blocked Nose Packaging).

Particulars

(A)    Particulars are provided as Annexure “A”.

(B)    Further particulars will be provided following evidence and disclosure.

(C)    “Blocked nose” means swelling in the nasal passages and sinuses.

(D)    “Runny nose” means secretions in the nasal passages and sinuses.

(E)    “Sinus pressure” means pain and pressure in the nasal passage and sinus associated with blocked nose and runny nose.

(F)    “Effective relief” means the reasonable expectation that, in a significant proportion of the target population, the pharmacological effect of the drug, when used under adequate directions for use and warnings against unsafe use, will provide clinically significant relief of the type claimed.

26    In my view, the way that the above paragraph is expressed suggests that the packaging for each of the relevant products stated that the product “provides effective relief from a blocked nose” (not merely words to that effect or words from which such a statement is to be implied). However, it seems that the packaging for at least some of the relevant products did not contain such a statement.

27    The particulars refer to Annexure A. That Annexure provides links to extracts from the “Way Back Machine” for the webpages of each of the relevant products. I infer that the Way Back Machine provides an image of what a page on the internet looked like at a certain date in the past. For each product, Annexure A contains a hyperlink to the Way Back Machine or a cross-reference to a page in the annexures to the ASOC. For each product, the information relates to two dates, being the earliest date and the most recent date presently known to the applicant.

28    When one looks at some of the examples provided in Annexure A, it appears that, for at least some of the relevant products, the packaging did not state that the product “provides effective relief from a blocked nose”. For example, the third product in Annexure A is Benadryl PE Dry Cough & Nasal Congestion Oral Liquid. The second column for that product contains a cross-reference to page 80 of the ASOC. That page contains images of the product packaging on the left and typed extracts from JJP’s website on the right. The extracts from the website are irrelevant for the purposes of considering paragraph 76 of the ASOC, which concerns the packaging. The packaging for this product (as displayed on page 80) does not contain a statement that the product provides effective relief from a blocked nose. Rather, in the section headed “uses”, the packaging states “to provide fast relief from dry irritating coughs” and “to clear blocked or runny nose”. See also the products that appear at pages 79 and 82 of the ASOC.

29    In my opinion, paragraph 76 of the ASOC is defective in that it suggests that the product packaging stated that the product “provides effective relief from a blocked nose”, when these words were not used on the packaging for at least some of the relevant products. In my view, the allegation should be recast so that it reflects the actual wording of the packaging or makes clear that it does not purport to be a statement of the actual wording. At the very least, the current pleading is ambiguous and confusing because it does not make clear if it is alleging the actual wording of the packaging or words to the effect of the actual wording or an inference to be drawn from the actual wording. Even if paragraph 76 were to be read as alleging a representation to be drawn from the packaging, it would be defective, because the ASOC does not otherwise allege the features (such as the actual words used) of the packaging from which that representation is to be drawn or inferred.

30    I will therefore strike out paragraph 76. The same reasoning applies equally to paragraphs 81 and 86.

31    I note also that I consider that the applicant should identify, in the particulars, the specific wording on the packaging that he relies on (not merely provide a picture or photo of the whole packaging). This will assist in identifying and clarifying the way in which the applicant puts his case.

32    For completeness, I note that I do not consider it to be a problem that the applicant relies on only two dates for each product (the earliest date and the most recent date) at this stage of the proceeding. If there were changes to the wording of the product packaging between those two dates, this is something that can be provided later.

Paragraphs 77, 79, 82, 84, 87 and 89

33    Paragraph 77 of the ASOC contains the pleading of the first representation relied on by the applicant. It is expressed as follows:

In and by the:

(a)    Blocked Nose Packaging;

(b)    J&J Pacific’s Distribution Activities; and

(c)    J&J Pacific’s Marketing Activities,

J&J Pacific represented to the public that each of:

(d)    Benadryl Mucus Relief Plus Decongestant Oral Liquid;

(e)    Benadryl PE Chesty Cough & Nasal Decongestant Oral Liquid;

(f)    Benadryl PE Dry Cough & Nasal Congestion Oral Liquid;

(g)    Codral Cold & Flu;

(h)    Codral Cold & Flu Oral Powder;

(i)    Codral Cold & Flu + Dry Cough;

(j)    Codral Cold & Flu + Mucus Cough;

(k)    Codral Cold & Flu + Mucus Cough Oral Powder;

(l)    Codral Day & Night;

(m)    Codral Day & Night + Dry Cough;

(n)    Codral Decongestant;

(o)    Codral Dry Cough + Cold Oral Liquid;

(p)    Codral Mucus Cough + Cold Oral Liquid;

(q)    Codral Night;

(r)    Codral Plus Mucus Cough Liquid + Cold & Flu;

(s)    Sudafed PE Nasal Decongestant;

(t)    Sudafed PE Night;

(u)    Sudafed PE Sinus + Allergy & Pain Relief;

(v)    Sudafed PE Sinus + Anti Inflammatory Pain Relief;

(w)    Sudafed PE Sinus + Pain Relief; and

(x)    Sudafed PE Sinus + Pain Relief Day & Night,

respectively provided effective relief from a blocked nose (Blocked Nose Representations).

Particulars

(A)    The particulars to paragraph 76 above are repeated.

34    It is apparent that this alleged representation is based on three matters, namely: the Blocked Nose Packaging (dealt with in paragraph 76); J&J Pacific’s Distribution Activities (dealt with in paragraph 74); and J&J Pacific’s Marketing Activities (dealt with in paragraph 75).

35    Insofar as the allegation relies on the Blocked Nose Packaging, for the reasons given above, paragraph 76 is defective and should be struck out.

36    Insofar as the allegation relies on J&J Pacific’s Distribution Activities and J&J Pacific’s Marketing Activities, the difficulty is that no material facts are pleaded as regards the content of those activities for each relevant product. For example, the applicant relies on what was stated in online advertisements (paragraph 75(b)) and in television advertisements (paragraph 75(c)), but the pleading does not allege what was stated in those advertisements. If (as seems to be the case) the applicant relies on what was stated in online advertisements and television advertisements for a product as the foundation for an alleged representation about that product, it is incumbent on the applicant to plead what was stated in those advertisements. These are material facts that need to be pleaded; they are not merely matters of evidence. Without such pleadings, JJP is not on notice of the case it needs to meet. Further, without such alleged facts, the pleadings will not perform their function of identifying the issues in dispute (eg, by JJP admitting or denying the allegations).

37    Further, I consider it appropriate for each relevant product to be dealt with separately. That is, the activities relied on for each product (to found the representation) should be alleged separately for each product.

38    For these reasons, I consider paragraph 77 to be defective. Accordingly, I will strike out that paragraph.

39    The same reasoning applies to paragraph 79. Although this paragraph is expressed in terms of conduct rather than a representation, it suffers from the same difficulties as paragraph 77. I will therefore also strike out paragraph 79.

40    The same reasoning applies to paragraphs 82, 84, 87 and 89.

Paragraph 97

41    Paragraph 97 builds on the paragraphs that I have dealt with in the immediately preceding section of these reasons. The difficulties that I have identified above flow through to paragraph 97. I will therefore strike out this paragraph.

Paragraph 100

42    This paragraph pleads that on various dates since around 2015, the applicant purchased various of the relevant products.

43    I do not consider it essential that the applicant plead (as distinct from particularise) his purchases of the relevant products. However, I do consider it important, as a matter of case management, that the applicant provide full particulars of his purchases as soon as reasonably practicable (ideally, in any proposed amended pleading). This will enable JJP to plead any limitation defences that it may wish to rely on. It will also enable the parties and the Court to consider whether sample group members should be identified so that the initial trial includes the case of at least one consumer of each relevant product.

44    Accordingly, I will not strike out paragraph 100, but I will require further and better particulars to be provided as soon as reasonably practicable.

Paragraphs 115, 118, 121 and 124

45    These paragraphs relate to loss and damage. The main issue raised by JJP is that the particulars are not exhaustive in that they use the word “include” or “includes”. At this stage of the proceeding, this formulation of the particulars is sufficient. At a later stage, it will be necessary for the applicant to define its case exhaustively.

46    For those reasons, I will not strike out these paragraphs.

Conclusion

47    There was no suggestion that the applicant should not have an opportunity to replead. Accordingly, I will give the applicant the opportunity to do so.

Associate:

Dated:    3 June 2025