Ethicon Sarl v Gill [2018] FCAFC 137

FEDERAL COURT OF AUSTRALIA

Ethicon Sàrl v Gill [2018] FCAFC 137 Appeal from: Gill v Ethicon SARL [2018] FCA 470

File number: NSD 668 of 2018

Judges: ALLSOP CJ, MURPHY AND LEE JJ

Date of judgment: 23 August 2018

Catchwords: REPRESENTATIVE PROCEEDINGS — representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) — application for leave to appeal from orders granting leave to amend statement of claim to alter description of the group members — parties under misapprehension as to existing class composition —discussion of powers within Part IVA to allow amendments to group definition and the legal consequences of amending group definition — observations as to the need for certainty in class composition and inaptness of analogues from non-representative proceedings to changing class composition — whether error by primary judge in choosing a cut-off date — no error established — whether amendments to class composition should relate back to commencement of proceeding — amendment should take effect from date of filing of amended pleading— leave to appeal granted in part and appeal allowed in part – cross appeal dismissed PRACTICE AND PROCEDURE — application for leave to appeal in relation to allowing an amendment to add further allegations of a failure to warn where evidence to support allegations was held to have been received and the amendment was contended to be within the scope of existing pleadings or consistent with the way the case was run at an initial trial — leave to appeal refused

Legislation: Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) Competition and Consumer Act 2010 (Cth) Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 33ZB, 33C, 33H, 33K, 33ZE, 33J, 33V, 33ZE, 33L, 33Q, 33R, 33S, 33T, 33X, 33ZB Judiciary Act 1903 (Cth) s 79 Trade Practices Act 1974 (Cth)