FEDERAL COURT OF AUSTRALIA Darcy v Medtel Pty Limited [2002] FCA 925 PATRICK NOEL DARCY in a representative capacity on behalf of the persons referred to in par 1 of the Amended Statement of Claim v MEDTEL PTY LIMITED & ANOR N 932 of 2001 SACKVILLE J SYDNEY 26 JULY 2002 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 932 of 2001 BETWEEN: PATRICK NOEL DARCY in a representative capacity on behalf of the persons referred to in paragraph 1 of the Amended Statement of Claim APPLICANT AND: MEDTEL PTY LIMITED FIRST RESPONDENT PACESETTER 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 JULY 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Pursuant to s 33J(3) of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act") the Court extends the date by which those group members who have not opted out of the proceedings may opt out of the proceedings to 18 September 2002. 2. Pursuant to s 33ZF(1) of the Federal Court Act, the Court directs that those group members who have opted out of the proceedings may withdraw their opt out notice by sending a letter in the terms or to the effect of the "Letter to the Court" in the schedule to this judgment so that it reaches the Court on or before 18 September 2002. 3. The form and content of the notice in the schedule to this judgment be approved for the purposes of s 33Y(2) of the Federal Court Act. 4. The parties, on or before 7 August 2002, send by registered post the notice referred to in Order 3, together with a covering letter in the form specified in the schedule to this judgment, 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 applicant pay the costs of sending the notices in accordance with the orders and the costs of the motion. 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 932 OF 2001 BETWEEN: PATRICK NOEL DARCY in a representative capacity on behalf of the persons referred to in paragraph 1 of the Amended Statement of Claim APPLICANT AND: MEDTEL PTY LIMITED FIRST RESPONDENT PACESETTER INC a Delaware corporation with its principal place of business 15900 Valley View Court, Sylmar, California SECOND RESPONDENT JUDGE: SACKVILLE J DATE: 26 JULY 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The respondents move the Court for orders as follows: "1. Pursuant to section 33J(3) of the Federal Court of Australia Act 1976 (Cth), the Court extends the date by which those group members, save for the members identified in Schedule 1 of this Notice of Motion, who have not opted out of the proceedings may opt out of these proceedings to 18 September 2002; 2. The form and content of the notice which is Annexure RG1 to the affidavit of Rebecca Gilsenan affirmed on 21 September 2001, as approved by Justice Sackville in his judgment dated 26 September 2001 and amended by his Honour on 16 May 2002, be further amended and approved for the purposes of section 33Y(2) of the Federal Court of Australia Act 1976 (Cth) in accordance with Schedule 2 of this Notice of Motion; 3. The parties send the further amended notice referred to in Order 2 above, on or before 7 August 2002, by registered post to all group members, save for the group members identified in Schedule 1 of this Notice of Motion, who have not opted out of the proceedings on or before 30 November 2001; and 4. The Applicant pay the costs of sending the notices referred to in paragraph 3 and of this Notice of Motion." This motion has been necessitated by an unfortunate error that was made by the applicants' solicitors. 2 On 26 September 2001, I made an order pursuant to s 33J(1) of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act") fixing 30 November 2001 as the date by which group members could opt out of the proceedings: Darcy v Medtel Pty Ltd [2001] FCA 1369. I also approved a notice to be sent to group members for the purposes of s 33Y(2) of the Federal Court Act. The notice was to be sent to each group member, or to the executor or administrator of the estate of each deceased group member, by pre-paid registered post in accordance with a specified protocol. 3 On 16 May 2002, I made orders extending the opt-out date to 28 June 2002 for eight group members for whom updated addresses had been located after the previous opt-out date had passed. 4 It is common ground that there are 255 group members (including deceased group members). Of these, 63 have opted out. All but four of those who have opted out did so before 30 November 2001. 5 The difficulty is that it now appears that some of the notices sent to group members pursuant to the orders made on 26 September 2001 had the second page of the notice missing. There is no way of telling how many group members received the defective notices. The second page contained important information that might bear on a group member's decision either to opt out or not opt out of the proceedings. 6 The respondents seek the orders referred to in their motion pursuant to s 33ZF(1) of the Federal Court Act, which provides as follows: "In any proceedings (including an appeal) conducted under this Part, the Court may, of its own motion or on application by a party or a group member, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding." 7 The parties are in agreement that steps must be taken to remedy possible injustice that may have occurred by reason of the error in printing and sending the notices to group members. They are also in agreement that s 33ZF(1) provides the source of power for this to be done. 8 The respondents' motion seeks an order that an amended notice be sent only to group members who have not opted out of the proceedings. The applicant recognises that group members who have not opted out may well have decided not to do so under a misapprehension attributable to the absence of the second page of the notice. But they say that those who have already opted out also might have misunderstood the position and should be given an opportunity to withdraw their opt out notice. 9 In my view, the applicant's submission is correct. It is impossible to know whether a group member who received an incomplete notice and who lodged an opt out form might have taken a different course had he or she received the complete notice. Indeed, in the end Mr Loveday, who appeared for the respondents, did not really dispute that an amended notice would have to be sent to all group members and that an opportunity would have to be provided to those who had opted out to withdraw their opt out notice. 10 I should add that, if it were possible to do so, it would be preferable to send the further notice only to those who received the incomplete notice in October 2001. Unfortunately, it is impossible at this stage to identify which group members received the incomplete notice and which received the correct notice. 11 I should also make it clear that the reason for giving any group member who has opted out an opportunity to withdraw his or her opt out notice is to overcome any injustice arising from the possibility that the group member acted on incomplete information in making his or her decision. Had an application been made simply on the ground that group members who have opted out should be permitted to change their mind, the result may well have been different: King v AG Australia Holdings Limited (formerly GIO Australia Holdings Limited) [2002] FCA 364 at [6], per Moore J. 12 The Schedule to this judgment sets out a covering letter and amended notice (including an opt out form and "Letter to the Court"). Each of these documents should be sent to each group member. 13 The orders I make are as follows: 1. Pursuant to s 33J(3) of the Federal Court Act, the Court extends the date by which those group members who have not opted out of the proceedings may opt out of the proceedings to 18 September 2002. 2. Pursuant to s 33ZF(1) of the Federal Court Act, the Court directs that those group members who have opted out of the proceedings may withdraw their opt out notice by sending a letter in the terms or to the effect of the "Letter to the Court" in the schedule to this judgment so that it reaches the Court on or before 18 September 2002. 3. The form and content of the notice in the schedule to this judgment be approved for the purposes of s 33Y(2) of the Federal Court Act. 4. The parties, on or before 7 August 2002, send by registered post the notice referred to in Order 3, together with a covering letter in the form specified in the schedule to this judgment, 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. 14 The applicant's camp is responsible for the unfortunate mistake which occurred. The applicant should pay the costs of sending the notices in accordance with the orders. The applicant should also pay the costs of the motion. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice S. Associate: Dated: 26 July 2002 Counsel for the Applicant: Mr J Clarke Solicitor for the Applicant: Maurice Blackman Cashman Counsel for the Respondents: Mr C Loveday Solicitor for the Respondents: Clayton Utz Date of Hearing: 23 July 2002 Date of Judgment: 26 July 2002 SCHEDULE FEDERAL COURT CLASS ACTION – META 1256 PACEMAKER You may have already received a notice in these proceedings. However, as a result of a printing error that notice may have been missing the second page. In order to ensure that you have been provided with all relevant information, the Federal Court of Australia has ordered that you be sent another copy of the notice. Because of the error, the Court has extended the time within which group members may opt out of the proceedings until 18 September 2002. For the same reason, the Court has permitted any group member who has already opted out to withdraw his or her opt out form by 18 September 2002. If you have already sent an opt out form to the Court in these proceedings and do not wish to change your decision, you do not have to do anything. If you have already sent an opt out form but, having now reviewed the complete notice, wish to change your decision and withdraw the opt out form, you may do so by completing and sending the attached letter to the Court so that it reaches the Court by 18 September 2002. If you have not sent an opt out form to the Court and do not wish to change your decision, you do not have to do anything. If you have not sent out an opt out form to the Court but, having now reviewed the complete notice, wish to opt out of the proceedings, you may do so by completing and sending the attached opt out form so that it reaches the Court by 18 September 2002. Before making your decision, please read the attached notice carefully. FEDERAL COURT CLASS ACTION – META 1256 PACEMAKER This Notice has been sent to you as the result of a case that is under way in the Federal Court of Australia. The purpose of the Notice is to explain to you and to other people who have had one of the Meta 1256 Pacemakers referred to below surgically implanted in Australia the nature of the Court case and to give you an opportunity to decide if you do or do not want to be a part of it. If you have had one of these Pacemakers implanted in Australia you are automatically part of the case, unless you choose to opt out of it. Please understand that the sending of this Notice does not necessarily mean that there is anything at all wrong with your pacemaker. Of course, if you have any concerns or questions about your pacemaker, you should contact your general practitioner, treating cardiologist or cardiac clinic. A Judge of the Federal Court has directed that a Notice in this form be sent again to all people who have had a Meta 1256 Pacemaker surgically implanted in Australia, where that Pacemaker was the subject of one or both of the hazard alerts issued in June and July 2000, or would have been the subject of the hazard alerts had the Pacemaker not already been removed. This procedure is in accordance with the requirements of the Federal Court of Australia Act 1976 (Cth) ("the Act"). You should understand that this Notice is an important document because your decision whether or not to join the Court case could affect your legal rights. You should read the Notice carefully. You may wish to seek your own legal advice in relation to its contents. The Court case was commenced in the Federal Court of Australia on 14 June 2001. The Applicant is Mr Patrick Darcy and he is suing Medtel Pty Limited and Pacesetter Inc (the "Respondents"). These companies are alleged to have been involved in the manufacture, distribution or promotion of the Meta 1256 Pacemaker. The case is not against doctors or hospitals. The Applicant, Mr Darcy, is claiming damages and other legal remedies against the Respondents, not only for himself, but on behalf of the members of a Group. The Group Members comprise all persons in whom a Meta 1256 Pacemaker has been surgically implanted in Australia, where that Pacemaker was the subject of one or both of the hazard alerts, or would have been the subject of the hazard alerts had the Pacemaker not already been removed. Any such person is a Group Member whether or not the person has had the Pacemaker removed. The Group also includes the legal personal representatives of the estate of any deceased persons who had a Meta 1256 Pacemaker surgically implanted in Australia, where the Pacemaker was the subject of one or both of the Hazard Alerts, or would have been had the Pacemaker not already been removed. Please understand that the reference to deceased persons does not necessarily mean that anybody has died as a consequence of any problem with the pacemaker. The Applicant alleges that he and Group Members suffered loss, injury or damage because one or both of the Respondents supplied a defective product or one that was not suitable for its intended purpose, engaged in misleading or deceptive conduct or acted negligently. The Respondents deny these allegations and are defending the proceedings. If you would like to inspect the Court documents you may do so on any weekday between 9am and 5pm, at the offices of Maurice Blackburn Cashman Lawyers at Level 20, 201 Elizabeth Street, Sydney, NSW or 456 Lonsdale Street, Melbourne, VIC or 861 Ann Street, Fortitude Valley, QLD. If you are a Group Member as defined in these proceedings, you have the right to exclude yourself (opt out) from these proceedings. The Court has extended the date by which you may opt out of these proceedings to 18 September 2002. If you are not sure whether you are a Group Member, or whether you should opt out please contact your solicitor, or Rebecca Gilsenan at Maurice Blackburn Cashman, at Level 20, 201 Elizabeth Street, Sydney, NSW 2000, telephone (02) 9261 1488. IF YOU WISH TO OPT OUT If you wish to opt out of the proceedings, and have not already done so, you should send or deliver a notice in the form attached to The Registrar New South Wales District Registry Federal Court of Australia Level 16 Law Courts Building Queens Square Sydney NSW 2000 The opt out notice must arrive at this address by 18 September 2002. If you have already sent an opt out form to the Court in these proceedings and do not wish to change your decision, you do not have to do anything. IF YOU DO NOT WISH TO OPT OUT If you want to remain a Group Member you are not required to do anything at this time. If you do not opt out of the proceedings you will be one of the Group Members on whose behalf the Applicant is conducting the proceedings. This means that you will be bound by any judgment given in the proceedings. Maurice Blackburn Cashman Lawyers are representing the Applicant in the proceedings. You will not be liable for their legal fees merely by remaining a Group Member. The only qualification is if the Applicant is successful, and the Court awards compensation to Group Members, the Court may make an order that some of that compensation be used to help pay a share of any remainder of the Applicant's legal costs which is not recovered from the Respondents. If the proceedings against the Respondents are successful, in order to obtain compensation you will need to prove that you suffered loss or damage because of the Respondents' conduct. To do this you are likely to need legal representation. You are entitled to choose your own lawyer to act on your behalf. If, however, you want Maurice Blackburn Cashman Lawyers to act for you for this purpose you will have to enter into a fee and retainer agreement with them. To obtain a copy of the fee and retainer agreement contact Maurice Blackburn Cashman Lawyers at Level 20, 201 Elizabeth Street, Sydney, New South Wales, telephone (02) 9261 1488. OPT OUT FORM NOTICE OF OPTING OUT BY GROUP MEMBER (Order 73, Rule 6) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. N932 of 2001 B E T W E E N: PATRICK NOEL DARCY in a representative capacity Applicant MEDTEL PTY LIMITED ACN 076 530 946 First Respondent PACESETTER INC. a Delaware corporation with its principal place of business 15900 Valley View Court, Sylmar, California.................................................................................................................................... Second Respondent To: The Registrar New South Wales District Registry Federal Court of Australia Level 16 Law Courts Building Queens Square Sydney, NSW, 2000 I, ……………………………………………, a group member in the above representative proceedings give notice under Section 33J of the Federal Court of Australia Act 1976 that I am opting out of the representative proceedings. ……………………………………………… Date ……………………………………………… Signature of Group Member or his or her Solicitor ………………………………………..……………… ………………………………………..……………… ………………………………………..……………… Address of Group Member LETTER TO THE COURT The Registrar New South Wales District Registry Federal Court of Australia Level 16 Law Courts Building Queens Square Sydney NSW 2000 Dear Registrar, DARCY v MEDTEL PTY LIMITED& PACESETTER INC PROCEEDING NO N932 OF 2001 I have previously sent an opt out form in these proceedings to the Court. Having had an opportunity to review the complete notice, I wish to change my decision and withdraw the opt out notice. Yours faithfully ………………………………… Signature ………………………………… Print name of group member ………………………………… ………………………………… ………………………………… Address of group member ………………………………… Date