Bright v Femcare [1999] FCA 1583

FEDERAL COURT OF AUSTRALIA

Bright v Femcare Ltd [1999] FCA 1583

KERRIE BRIGHT V FEMCARE LIMITED and ENDOVASIVE PTY LIMITED

N 410 OF 1999 JUDGE: BEAUMONT J. DATE: 2 NOVEMBER 1999 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 410 OF 1999

BETWEEN: KERRIE BRIGHT On her own behalf and in a representative capacity on behalf of all persons in Australia who, as at the date of filing, have suffered injury or loss as a result of failed or possibly failed laparoscopic sterilisation procedures performed using Filshie sterilisation clips applied using a Filshie sterilisation clip applicator

Applicant

AND: FEMCARE LIMITED

First Respondent

ENDOVASIVE PTY LIMITED

Second Respondent

JUDGE: BEAUMONT J.

DATE OF ORDER: 2 NOVEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Leave to appeal is granted. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 410 OF 1999

BETWEEN: KERRIE BRIGHT On her own behalf and in a representative capacity on behalf of all persons in Australia who, as at the date of filing, have suffered injury or loss as a result of failed or possibly failed laparoscopic sterilisation procedures performed using Filshie sterilisation clips applied using a Filshie sterilisation clip applicator

Applicant

AND: FEMCARE LIMITED

First Respondent

ENDOVASIVE PTY LIMITED

Second Respondent

JUDGE: BEAUMONT J.

DATE: 2 NOVEMBER 1999

PLACE: SYDNEY

REASONS FOR THE GRANT OF LEAVE TO APPEAL BEAUMONT J: 1 I propose, for the reasons indicated in the course of argument, to grant leave to appeal, but not to attach any conditions so far as costs are concerned. The question of costs will be entirely a matter within the jurisdiction and discretion of the Full Court. 2 In summary form, the reasons for the grant of leave are: (1) that the point is a constitutional one; and (2) it is a novel one, and therefore, cannot be said to be beyond argument; indeed, one aspect of it was described by Lehane J (at par 19) as raising "questions of greater difficulty". A supplementary reason for the grant of leave, were it required, would be the circumstance that, if the point is a good one, a matter upon which of course I express no view and upon which we have already the benefit of a reserved judgment of Lehane J, it would have substantial effect on many other proceedings pending (and doubtless to be instituted in the future) by way of Group Proceedings in this Court. 3 The order of the Court therefore is that leave to appeal is granted.