Darcy v Medtel Pty Ltd [2001] FCA 1369

FEDERAL COURT OF AUSTRALIA

Darcy v Medtel Pty Ltd [2001] FCA 1369

PATRICK NOEL DARCY v MEDTEL PTY LIMITED & ANOR N 932 OF 2001 SACKVILLE J SYDNEY 26 SEPTEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 932 OF 2001

BETWEEN: PATRICK NOEL DARCY

APPLICANT

AND: MEDTEL PTY LIMITED

FIRST RESPONDENT

PACESESTTER INC

A Delaware corporation with its principal place of business 15900 Valley View Court, Sylmar, California

SECOND RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 26 SEPTEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The notice of motion filed on 21 September 2001 by the applicant be made returnable instanter. 2. Pursuant to s 33J(1) of the Federal Court of Australia Act 1976 (Cth) ("the Act"), 30 November 2001, is fixed as the date by which group members may opt out of the proceedings. 3. The form and content of the Notice, being Annexure RG1 to the affidavit of Rebecca Gilsenan affirmed on 21 September 2001 ("the Notice"), be approved for the purposes of s 33Y(2) of the Act. 4. 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 estate of the deceased group member. 5. The Notice be sent by pre-paid registered post. 6. The parties follow the protocol set out in this Order 6: (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 respondent 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 post. (d) The envelope referred to in subparagraphs (b) and (c) will be posted not before 5 October 2001 and not later than 19 October 2001. (e) The field staff of the first respondent will contact each of the institutions and medical practitioners to whom the Pacemakers the subject of the proceedings 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 5 October 2001, the name, last known address, date of birth and approximate date of death of any group member known to be deceased. (g) The applicants' solicitors will undertake by 12 October 2001 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. (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 Notice will 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 applicants' solicitors will address the envelope containing the Notice to "The Estate of the late [name of deceased group member]". (j) Where a registered post envelope containing a Notice is returned to sender the parties will work together to identify updated contact details for the group member and wherever possible, re-post the Notice by pre-post registered post. 7. A copy of the Amended Application and Amended Statement of Claim be available for inspection at each District Registry of the Court during Registry hours on and after 5 October 2001. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.