Courtney v Medtel Pty Limited [2001] FCA 1037

FEDERAL COURT OF AUSTRALIA

Courtney v Medtel Pty Limited [2001] FCA 1037

REPRESENTATIVE PROCEEDINGS - Opt out notices – role of the Court in determining form of opt out notice – need to identify deceased Group Members. Federal Court of Australia Act 1976 (Cth), ss 33X, 33J, 33Y. Trade Practices Act 1974 (Cth), ss 52, 74B, 75AD, 82. King v GIO Holdings Ltd [2000] FCA 1869 King v GIO Holdings Ltd [2001] FCA 270 Femcare Ltd v Bright (2000) 100 FCR 331 McMullin v ICI Australia Operations Pty Ltd (1998) 156 ALR 257

KEVIN GLYNN COURTNEY in a representative capacity on behalf of all persons in whom St Jude Tempo Pacemakers were surgically implanted in Australia v MEDTEL PTY LIMITED N 661 of 2000 SACKVILLE J SYDNEY 2 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 661 OF 2000

BETWEEN: KEVIN GLYNN COURTNEY in a representative capacity on behalf of all persons in whom St Jude Tempo Pacemakers were surgically implanted in Australia

APPLICANT

AND: MEDTEL PTY LIMITED

FIRST RESPONDENT

ST JUDE MEDICAL, INC, a Minnesota corporation with its principal place of business at One Lillehei Plaza, City of St Paul, County of Ramsey, State of Minnesota.

SECOND RESPONDENT

PACESETTER INC, a Delaware corporation with its principal place of business 15900 Valley View Court, Sylmar, California

THIRD RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 2 AUGUST 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Pursuant to s 33J(1) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act"), 12 October 2001 is fixed as the date by which a Group Member (as defined in paragraph 1 of the Fourth Amended Application filed herein) may opt out of these proceedings. 2. The form and content of the notice which is Annexure B to these reasons ("the Notice") be approved for the purposes of s 33Y(2) of the Federal Court Act. 3. Subject to Order 5, the Notice be sent to each Group Member or, in the case of a deceased Group Member, to the executor or administrator of the deceased Group Member. 4. The Notice be sent by pre-paid registered post. 5. The parties follow the protocol set out in this Order: (a) The Applicant's solicitors will provide the Respondents' solicitors Notices in envelopes which have been pre-paid for registered post. (b) The Respondents' solicitors will address and post the envelopes to Group Members, other than those Group Members known by the Respondents to be deceased. (c) In the case of any Group Member known to reside overseas, the Respondents' solicitors will ensure that the envelope is posted with the correct postage for pre-paid registered mail. (d) The envelope referred to in subpars (b) and (c) will be posted not before 15 August 2001 and not later than 29 August 2001. (e) The field staff of the first respondent will contact each of the institutions and medical practitioners to whom the Pacemakers (as defined in par 1(a) of the fourth amended application) were supplied, seeking information as to the current status of the patients in whom the Pacemakers were implanted. (f) The respondents' solicitors will provide to the applicant's solicitors by 15 August 2001, the name, last known address, date of birth and approximate date of death of any Group Members known to be deceased. (g) The applicant's solicitors will undertake a search in the Probate Division of the Supreme Court of the State or Territory in which any deceased Group Member last resided, where such searches are available to the public, by 22 August 2001. (h) Where the applicant's solicitors are able to identify the executor or administrator of the estate of the deceased Group Members, the envelope containing the opt out notice shall be addressed and sent by the applicant's solicitors to that executor or administrator. (i) Where the applicant's solicitors are unable to identify the executor or administrator of the estate of the deceased Group Member, the applicant's solicitors shall address the envelope containing the opt out notice to "The Estate of [name of deceased Group Member]". 6. A copy of the fourth amended application and the fourth amended statement of claim be available for inspection at each District Registry during Registry hours on and after 15 August 2001. 7. The parties have liberty to apply on 24 hours notice. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.